EXHIBIT 4
POOLING AND SERVICING AGREEMENT
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XXXX XX XXXXXXX COMMERCIAL MORTGAGE INC.,
Depositor,
BANK OF AMERICA, N.A.,
Master Servicer,
MIDLAND LOAN SERVICES, INC.,
Special Servicer,
LASALLE BANK NATIONAL ASSOCIATION,
Trustee and REMIC Administrator,
and
ABN AMRO BANK N.V.,
Fiscal Agent
---------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of April 1, 2003
---------------------------------
$1,132,371,704
Commercial Mortgage Pass-Through Certificates
Series 2003-1
TABLE OF CONTENTS
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Section
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ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF
THE MORTGAGE POOL AND THE CERTIFICATES
SECTION 1.01 Defined Terms...............................................
SECTION 1.02 Certain Calculations in Respect of the Mortgage Pool........
SECTION 1.03 Cross-Collateralized Mortgage Loans.........................
SECTION 1.04 Incorporation of Preliminary Statement......................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans................................
SECTION 2.02 Acceptance of the Component Mortgage Loan REMIC
and REMIC I by Trustee......................................
SECTION 2.03 Mortgage Loan Seller's Repurchase or Substitution of
Mortgage Loans for Material Document Defects and
Material Breaches...........................................
SECTION 2.04 Representations and Warranties of the Depositor.............
SECTION 2.05 Representations and Warranties of the Master Servicer.......
SECTION 2.06 Representations and Warranties of the Special Servicer......
SECTION 2.07 Representations and Warranties of the Trustee and
the REMIC Administrator.....................................
SECTION 2.08 Execution, Authentication and Delivery of Class ES
Certificates and Class SB Certificates; Creation of
Component Mortgage Loan REMIC Regular Interests and
Component Mortgage Loan REMIC Residual Interest.............
SECTION 2.09 Issuance of the Class R-I Certificates; Creation of
the REMIC I Regular Interests...............................
SECTION 2.10 Conveyance of REMIC I Regular Interests; Acceptance
of REMIC II by the Trustee..................................
SECTION 2.11 Issuance of the REMIC II Certificates.......................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01 Administration of the Loans.................................
SECTION 3.02 Collection of Mortgage Loan Payments........................
SECTION 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Servicing Advances; Reserve Accounts....
SECTION 3.04 Certificate Account, the Distribution Account, the
Component Mortgage Loan REMIC Distribution Account,
the REMIC II Distribution Account, Excess Liquidation
Proceeds Account and Loan Pair Custodial Account............
SECTION 3.05 Permitted Withdrawals From the Certificate Account,
the Distribution Account, the Loan Pair Custodial Accounts
and the Excess Liquidation Proceeds Account.................
SECTION 3.06 Investment of Funds in the Certificate Account, the
Component Mortgage Loan REMIC Distribution Account, the
REMIC I Distribution Account, the REMIC II Distribution
Account, the Interest Reserve Account and the REO Account...
SECTION 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.......................................
SECTION 3.08 Enforcement of Alienation Clauses...........................
SECTION 3.09 Realization Upon Defaulted Mortgage Loans...................
SECTION 3.10 Trustee to Cooperate; Release of Mortgage Files.............
SECTION 3.11 Servicing Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
Regarding Back-up Servicing Advances........................
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 Resolution of Defaulted Mortgage Loans and REO Properties...
SECTION 3.19 Additional Obligations of the Master Servicer and the
Special Servicer............................................
SECTION 3.20 Modifications, Waivers, Amendments and Consents.............
SECTION 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping; Asset Status Report; Directing
Certificateholder...........................................
SECTION 3.22 Sub-Servicing Agreements....................................
SECTION 3.23 Designation of the Special Servicer by the Majority
Certificateholder of the Controlling Class..................
SECTION 3.24 Confidentiality.............................................
SECTION 3.25 No Solicitation of Prepayments..............................
SECTION 3.26 Certain Matters with Respect to Mortgage Loans
Permitting Defeasance, Franchise Mortgage Loans and
Certain Mortgage Loans Permitting Additional Debt...........
SECTION 3.27 Application of Default Charges..............................
SECTION 3.28 Matters Regarding the Loan Pairs............................
SECTION 3.29 Right to Appoint Operating Advisor; Authority of
Operating Advisor...........................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
SECTION 4.01 Distributions...............................................
SECTION 4.02 Statements to Certificateholders; Certain Reports
by the Master Servicer and the Special Servicer.............
SECTION 4.03 P&I Advances................................................
SECTION 4.04 Allocation of Realized Losses and Additional Trust
Fund Expenses...............................................
SECTION 4.05 Interest Reserve Account....................................
SECTION 4.06 [RESERVED]..................................................
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 Certification by Certificate Owners.........................
SECTION 5.07 Regarding the Identification of Certain Certificateholders..
ARTICLE VI
THE DEPOSITOR, THE MORTGAGE LOAN SELLER, THE MASTER SERVICER,
THE SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
SECTION 6.01 Liability of the Depositor, the Master Servicer, the
Special Servicer and the REMIC Administrator................
SECTION 6.02 Merger, Consolidation or Conversion of the Depositor,
the Master Servicer, the Special Servicer or the REMIC
Administrator...............................................
SECTION 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator
and Others..................................................
SECTION 6.04 Master Servicer, Special Servicer and REMIC
Administrator Not to Resign.................................
SECTION 6.05 Rights of the Depositor and the Trustee in Respect of the
Master Servicer, the Special Servicer and the REMIC
Administrator...............................................
ARTICLE VII
DEFAULT
SECTION 7.01 Events of Default...........................................
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 Additional Remedies of Trustee Upon Event of Default........
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01 Duties of Trustee...........................................
SECTION 8.02 Certain Matters Affecting the Trustee.......................
SECTION 8.03 Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans...............
SECTION 8.04 Trustee May Own Certificates................................
SECTION 8.05 Fees of Trustee; Indemnification of Trustee.................
SECTION 8.06 Eligibility Requirements for Trustee........................
SECTION 8.07 Resignation and Removal of the Trustee......................
SECTION 8.08 Successor Trustee...........................................
SECTION 8.09 Merger or Consolidation of Trustee or Fiscal 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 Filings with the Securities and Exchange Commission.........
SECTION 8.14 Fiscal Agent Appointed; Concerning the Fiscal Agent.........
SECTION 8.15 Maintenance of Mortgage File................................
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 Depositor, Master Servicer, Special Servicer and
Trustee to Cooperate with REMIC Administrator...............
SECTION 10.03 Fees of the REMIC Administrator.............................
SECTION 10.04 Use of Agents...............................................
SECTION 10.05 [RESERVED]..................................................
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 Successors and Assigns; Beneficiaries.......................
SECTION 11.08 Article and Section Headings................................
SECTION 11.09 Notices to and from Rating Agencies.........................
SECTION 11.10 Requests for Information; Standing Requests.................
LIST OF EXHIBITS AND SCHEDULES
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-2 Certificate
EXHIBIT A-3 Form of Class XC Certificate
EXHIBIT A-4 Form of Class XP-1 Certificate
EXHIBIT A-5 Form of Class XP-2 Certificate
EXHIBIT A-6 Form of Class B Certificate
EXHIBIT A-7 Form of Class C Certificate
EXHIBIT A-8 Form of Class D Certificate
EXHIBIT A-9 Form of Class E Certificate
EXHIBIT A-10 Form of Class F Certificate
EXHIBIT A-11 Form of Class G Certificate
EXHIBIT A-12 Form of Class H Certificate
EXHIBIT A-13 Form of Class J Certificate
EXHIBIT A-14 Form of Class K Certificate
EXHIBIT A-15 Form of Class L Certificate
EXHIBIT A-16 Form of Class M Certificate
EXHIBIT A-17 Form of Class N Certificate
EXHIBIT A-18 Form of Class O Certificate
EXHIBIT A-19 Form of Class P Certificate
EXHIBIT A-20 Form of Class R-I Certificate
EXHIBIT A-21 Form of Class R-II Certificate
EXHIBIT A-22 Form of Class ES-A, Class ES-B, Class ES-C, Class ES-D,
Class ES-E Certificate, Class ES-F, Class ES-G and Class ES-H
EXHIBIT A-23 Form of Class SB-A, Class SB-B, Class SB-C, Class SB-D and
Class SB-E Certificate
EXHIBIT A-24 Form of Class WB-A, Class WB-B, Class WB-C and Class WB-D
Certificate
EXHIBIT B Form of Investment Representation Letter
EXHIBIT C-1 Form of Transfer Affidavit and Agreement Pursuant to
Section 5.02(d)(i)(B)
EXHIBIT C-2 Form of Transferor Certificate Pursuant to
Section 5.02(d)(i)(D)
EXHIBIT D Request for Release
EXHIBIT E Form of ERISA Representation Letter
EXHIBIT F Form of Custodial Certification
EXHIBIT G [Reserved]
EXHIBIT H Request for Review
EXHIBIT I Form of Notice Regarding Purchase Option Exercise
EXHIBIT J Form of Notice and Certification Regarding Defeasance of
Mortgage Loan
EXHIBIT K Form of Certification to be Provided with Form 10-K
EXHIBIT L Form of Certification to be Provided to Depositor
SCHEDULE I Mortgage Loan Schedule
SCHEDULE II Sub-Servicing Agreements in Effect as of the Closing Date
SCHEDULE III Schedule of Exceptions under Section 2.02(a)
SCHEDULE IV Class XP-1 and Class XP-2 Reference Rates
SCHEDULE V Schedule of Controlling Holders and Operating Advisors
This Pooling and Servicing Agreement (this "Agreement"), is dated
and effective as of April 1, 2003, among BANC OF AMERICA COMMERCIAL MORTGAGE
INC., as Depositor, BANK OF AMERICA, N.A., as Master Servicer, MIDLAND LOAN
SERVICES, INC., as Special Servicer, LASALLE BANK NATIONAL ASSOCIATION, as
Trustee and as REMIC Administrator and ABN AMRO BANK N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell Certificates, to be issued hereunder
in multiple Classes, which in the aggregate will evidence the entire beneficial
ownership interest in the Trust to be created hereunder.
As provided herein, the Trustee will elect that three segregated
pools of assets within the Trust Fund, be treated for federal income tax
purposes as three separate real estate mortgage investment conduits (the
"Component Mortgage Loan REMIC", "REMIC I" and "REMIC II," respectively).
COMPONENT MORTGAGE LOAN REMIC
The Trustee will elect to treat the segregated pool of assets
consisting of the ES Component Mortgage Loan and the SB Component Mortgage Loan
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 "Component Mortgage Loan REMIC". The Component Mortgage Loan
REMIC Residual Interest will represent the sole class of "residual interests" in
the Component Mortgage Loan REMIC for purposes of the REMIC Provisions under
federal income tax law, and will be represented by the Class R-I Certificates.
The Component Mortgage Loan REMIC Regular Interests will consist of the
Component Mortgage Loan REMIC Senior Regular Interests and the Component
Mortgage Loan REMIC Subordinate Regular Interests. The Component Mortgage Loan
REMIC Senior Regular Interests will not be certificated and will be held by
REMIC I. Each Component Mortgage Loan REMIC Subordinate Regular Interest will be
represented by a Class of Class ES or Class SB Certificates, as applicable. The
following table sets forth the initial Class ES Senior Balance and Class SB
Senior Balances and the corresponding Component Mortgage Loan REMIC Senior
Regular Interests:
Initial ES Component
ES Component Mortgage Loan Senior
Mortgage Loan / SB Balance / SB Corresponding Component Mortgage
Component Mortgage Component Mortgage Loan REMIC
Loan Loan Senior Balance Senior Regular Interest
------------------- -------------------- ------------------------------------
Loan No. 56967 $103,950,000 ES Component Mortgage Loan Senior
Regular Interest
Loan No. 57081 $100,382,899 SB Component Mortgage Loan Senior
Regular Interest
The following table sets forth the initial ES Component Mortgage
Loan Subordinate Balances and the Corresponding Component Mortgage Loan REMIC
Subordinate Regular Interests:
Corresponding Component Mortgage
Initial ES Component Mortgage Loan REMIC
Loan Subordinate Balance Subordinate Regular Interest
----------------------------- --------------------------------
$5,988,527.00 Class ES-A Certificates
$4,354,001.00 Class ES-B Certificates
$4,713,094.00 Class ES-C Certificates
$4,979,123.00 Class ES-D Certificates
$3,444,021.00 Class ES-E Certificates
$3,444,021.00 Class ES-F Certificates
$3,444,021.00 Class ES-G Certificates
$10,533,777.25 Class ES-H Certificates
The following table sets forth the initial SB Component Mortgage
Loan Subordinate Balances and the Corresponding Component Mortgage Loan REMIC
Subordinate Regular Interests:
Corresponding Component Mortgage
Initial SB Component Mortgage Loan REMIC
Loan Subordinate Balance Subordinate Regular Interest
----------------------------- --------------------------------
$1,344,401.00 Class SB-A Certificates
$4,933,217.00 Class SB-B Certificates
$11,427,913.00 Class SB-C Certificates
$3,473,189.00 Class SB-D Certificates
$7,688,381.00 Class SB-E Certificates
REMIC I
As provided herein, the Trustee will elect that the portion of the
Trust Fund consisting of the Majority Mortgage Loans and the Component Mortgage
Loan REMIC Senior Regular Interests and certain other related assets subject to
this Agreement shall be treated as a REMIC for federal income tax purposes, and
such segregated asset pool will be designated as "REMIC I." The REMIC I Regular
Interests listed below under the heading "Corresponding REMIC I Regular
Interests" constitute "regular interests" in REMIC I and the Class R-I
Certificates constitute the sole Class of "residual interests" in REMIC I
created hereunder for purposes of the REMIC Provisions.
The following table sets forth the Class or Component designation,
the corresponding REMIC I Regular Interest (the "Corresponding REMIC I Regular
Interest"), and the Corresponding Components of the Class X Certificates for
each Class of the REMIC II Certificates and Class WB Certificates (the
"Corresponding Certificates").
Corresponding Corresponding
Corresponding REMIC I Regular REMIC I Components of Class
Certificates Interests(1) Principal Balance X Certificates(1)
------------- --------------- ----------------- -------------------
Class A-1 LA-1-1 $62,395,677.00 XA-1-1
LA-1-2 $40,135,754.40 XA-1-2
LA-1-3 $17,201,037.60 XA-1-3
LA-1-4 $35,558,640.60 XA-1-4
LA-1-5 $15,239,417.40 XA-1-5
LA-1-6 $51,264,824.80 XA-1-6
LA-1-7 $21,970,639.20 XA-1-7
LA-1-8 $36,080,305.10 XA-1-8
LA-1-9 $15,462,987.90 XA-1-9
LA-1-10 $30,824,756.90 XA-1-10
LA-1-11 $13,210,610.10 XA-1-11
Class A-2 LA-2-1 $45,299,308.60 XA-2-1
LA-2-2 $19,413,989.40 XA-2-2
LA-2-3 $309,063,514.90 XA-2-3
LA-2-4 $132,455,792.10 XA-2-4
Class B LB-1 $24,399,099.90 XB-1
LB-2 $10,456,757.10 XB-2
Class C LC-1 $9,036,703.20 XC-1
LC-2 $3,872,872.80 XC-2
Class D LD-1 $17,169,736.50 XD-1
LD-2 $7,358,458.50 XD-2
Class E LE-1 $8,133,033.30 XE-1
LE-2 $3,485,585.70 XE-2
Class F LF-1 $8,133,033.30 XF-1
LF-2 $3,485,585.70 XF-2
Class G LG-1 $7,357,282.80 XG-1
LG-2 $3,153,121.20 XG-2
LG-3 $775,750.50 XG-3
LG-4 $332,464.50 XG-4
Class H LH-1 $834,179.50 XH-1
LH-2 $357,505.50 XH-2
LH-3 $6,395,183.20 XH-3
LH-4 $2,740,792.80 XH-4
Class J LJ-1 $7,902,170.50 XJ-1
LJ-2 $3,386,644.50 XJ-2
LJ-3 $7,460,225.50 XJ-3
LJ-4 $3,197,239.50 XJ-4
Class K LK-1 $3,967,244.40 XK-1
LK-2 $1,700,247.60 XK-2
LK-3 $1,454,777.80 XK-3
LK-4 $623,476.20 XK-4
Class L LL-1 $4,518,351.60 XL-1
LL-2 $1,936,436.40 XL-2
Class M LM $6,454,788.00 XM
Class N LN $5,163,831.00 XN
Class O LO $3,872,872.00 XO
Class P LP $18,073,408.00 XP
Class WB-A(2) LWBA $17,300,000.00 N/A
Class WB-B(2) LWBB $8,741,837.00 N/A
Class WB-C(2) LWBC $1,919,133.00 N/A
Class WB-D(2) LWBD $1,876,932.00 N/A
----------------------
(1) The REMIC I Regular Interest or Interests and the Component or Components
of the Class X Certificates that correspond to any particular Class of
REMIC II Regular Certificates also correspond to each other and,
accordingly, constitute the (i) "Corresponding REMIC I Regular Interests"
and (ii) "Corresponding Components", respectively, with respect to each
other.
(2) For the avoidance of doubt, the Class WB Certificates are limited to
distributions from and will only incur losses with respect to amounts
received from or losses occurred on the Wellbridge Note B Loan.
REMIC II
As provided herein, the Trustee will elect to treat that portion of
the Trust Fund consisting of the REMIC I Regular Interests and certain other
assets subject to this Agreement as a REMIC for federal income tax purposes, and
such segregated asset pool will be designated as "REMIC II." The Class A-1,
Class A-2, Class XC, Class XP-1, Class XP-2, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O
and Class P Certificates and each Class of WB Certificates will constitute
"regular interests" in REMIC II, and the Class R-II Certificates will constitute
the sole Class of "residual interests" in REMIC II for purposes of the REMIC
Provisions.
The following table sets forth the designation, the Pass-Through
Rate, and the Initial Class Principal Balance for each of the Classes of REMIC
II Regular Certificates, Class ES Certificates, the Class SB Certificates and
the Class WB Certificates:
Initial Initial Class
Designation Pass-Through Rate Principal Balance
----------- ----------------- -----------------
REMIC II Regular Certificates
Class A-1 3.8780% per annum $339,344,651.00
Class A-2 4.6480% per annum $506,232,605.00
Class B 4.8050% per annum $34,855,857.00
Class C 4.8440% per annum $12,909,576.00
Class D 4.9030% per annum(1) $24,528,195.00
Class E 4.9720% per annum(1) $11,618,619.00
Class F 5.5070% per annum(1) $11,618,619.00
Class G 5.6080% per annum(1) $11,618,619.00
Class H 6.0119% per annum(2) $10,327,661.00
Class J 4.9000% per annum(1) $21,946,280.00
Class K 4.9000% per annum(1) $7,745,746.00
Class L 4.9000% per annum(1) $6,454,788.00
Class M 4.9000% per annum(1) $6,454,788.00
Class N 4.9000% per annum(1) $5,163,831.00
Class O 4.9000% per annum(1) $3,872,872.00
Class P 4.9000% per annum(1) $18,073,408.00
Class XC Variable(3) $1,032,766,115.00(4)
Class XP-1 Variable(3) $655,763,877.00(4)
Class XP-2 Variable(3) $281,041,661.00(4)
Class ES Certificates
Class ES-A 4.7670% per annum(5) $5,988,527.00
Class ES-B 4.8060% per annum(5) $4,354,001.00
Class ES-C 4.8360% per annum(5) $4,713,094.00
Class ES-D 5.9180% per annum(5) $4,979,123.00
Class ES-E 5.9180% per annum(5) $3,444,021.00
Class ES-F 5.9180% per annum(5) $3,444,021.00
Class ES-G 5.9180% per annum(5) $3,444,021.00
Class ES-H 5.9180% per annum(5) $10,533,777.25
Class SB Certificates
Class SB-A 5.7700% per annum(5) $1,344,401.00
Class SB-B 5.8600% per annum(5) $4,933,217.00
Class SB-C 5.7900% per annum(5) $11,427,913.00
Class SB-D 6.4100% per annum(5) $3,473,189.00
Class SB-E 6.7700% per annum(5) $7,688,381.00
Class WB Certificates
Class WB-A 4.5950% per annum(5) $17,300,000.00
Class WB-B 4.9320% per annum(5) $8,741,837.00
Class WB-C 4.9710% per annum(5) $1,919,133.00
Class WB-D 5.0000% per annum(5) $1,876,932.59
---------------------------------
(1) Initial Pass-Through Rate. The Pass-Through Rate for the Class D, Class E,
Class F, Class G, Class J, Class K, Class L, Class M, Class N, Class O and
Class P Certificates will not exceed the Weighted Average Adjusted Net
Mortgage Rate for such Distribution Date.
(2) Initial Pass-Through Rate. The Pass-Through Rate for the Class H
Certificates for each Distribution Date will equal the Weighted Average
Adjusted Net Mortgage Rate for such Distribution Date.
(3) The Pass-Through Rates for each of the Class XC, Class XP-1 and Class XP-2
Certificates will be calculated in accordance with the related definitions
of "Class XC Pass-Through Rate", "Class XP-1 Pass-Through Rate", and
"Class XP-2 Pass-Through Rate", as applicable.
(4) The Class XC, Class XP-1 and Class XP-2 Certificates will not have a Class
Principal Balance; rather, each such Class of Certificates will accrue
interest as provided herein on the related Class XC Notional Amount, Class
XP-1 Notional Amount or Class XP-2 Notional Amount, as applicable.
(5) The rates set forth in the "Pass-Through Rate" column for each Class of
Class ES, Class SB and Class WB Certificates are expressed on the basis of
a 360-day year and the actual number of days elapsed in the relevant month
of accrual. For purposes of calculating the Pass-Through Rate of each
Class of Class ES, Class SB and Class WB Certificates for each Interest
Accrual Period, each Pass-Through Rate will be converted to the annualized
rate of interest at which interest would have to accrue on the Certificate
Balance of each such Class of Certificates (on a basis of a 360-day year,
consisting of twelve 30-day months) in order to produce the aggregate
amount of interest which actually accrues on such Class of Certificates
for such Interest Accrual Period at the respective rates set forth in the
"Pass-Through Rate" column.
The Class R-I and Class R-II Certificates will be Residual
Certificates bearing no Pass-Through Rate and having no initial Certificate
Principal Balances or notional amounts. Any Available Distribution Amount (i)
remaining in the Component Mortgage Loan REMIC Distribution Account after
distributing all amounts distributable in respect of the Component Mortgage Loan
REMIC Regular Interests and (ii) remaining in the REMIC I Distribution Account
after distributions to the REMIC I Regular Interests shall be distributed to the
Holders of the Class R-I Certificates (but only to the extent of the Available
Distribution Amount for such Distribution Date, if any, remaining in the
Component Mortgage Loan REMIC Distribution Account or in the REMIC I
Distribution Account, as applicable). Any Available Distribution Amount
remaining in the REMIC II Distribution Account after distributions to the REMIC
II Regular Certificates and the Class WB Certificates shall be distributed to
the Holders of the Class R-II Certificates (but only to the extent of the
Available Distribution Amount for such Distribution Date, if any, remaining in
the REMIC II Distribution Account).
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator and the Fiscal Agent agree as follows:
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
AND THE CERTIFICATES
SECTION 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"30/360 Basis": The accrual of interest calculated on the basis of a
360-day year consisting of twelve 30-day months.
"A/B Mortgage Loan": Any of the Wellbridge A/B Mortgage Loan or any
CBA A/B Mortgage Loan.
"Accrued Certificate Interest": With respect to any Class of Class
ES Certificates, Class SB Certificates, Class WB Certificates and Class of REMIC
II Regular Certificates, for any Distribution Date, one (1) month's interest
(calculated on a 30/360 basis) at the Pass-Through Rate applicable to such Class
of Certificates for such Distribution Date, accrued on the related Class
Principal Balance of such Class of Certificates outstanding immediately prior to
such Distribution Date and, with respect to the Class XC, Class XP-1 and Class
XP-2 Certificates for any Distribution Date, the sum of the Accrued Component
Interest for the related Interest Accrual Period for all of their respective
Components for such Distribution Date. For the avoidance of doubt, the Accrued
Certificate Interest in respect of any Class of Class ES Certificates, Class SB
Certificates, Class WB Certificates and Class of REMIC II Regular Certificates
for any Distribution Date shall be deemed to have accrued during the applicable
Interest Accrual Period.
"Accrued Component Interest": With respect to each Component of the
Class XC, Class XP-1 or Class XP-2 Certificates for any Distribution Date, one
(1) month's interest at the Class XC Strip Rate, Class XP-1 Strip Rate or Class
XP-2 Strip Rate applicable to such Component for such Distribution Date, accrued
on the Component Notional Amount of such Component outstanding immediately prior
to such Distribution Date. Accrued Component Interest shall be calculated as
described in the definitions of Class XC Strip Rate, Class XP-1 Strip Rate or
Class XP-2 Strip Rate with respect to any Component and any Distribution Date,
and shall be deemed to accrue during the calendar month preceding the month in
which such Distribution Date occurs.
"Accrued ES Component Mortgage Loan Senior Component Interest": With
respect to the ES Component Mortgage Loan Senior Component for any Distribution
Date, one (1) month's interest at the Adjusted Net Mortgage Rate applicable to
the ES Component Mortgage Loan Senior Component for such Distribution Date,
accrued on the ES Component Mortgage Loan Senior Balance of the ES Component
Mortgage Loan Senior Component outstanding immediately prior to such
Distribution Date. For the avoidance of doubt, the Accrued ES Component Mortgage
Loan Senior Component Interest in respect of the ES Component Mortgage Loan
Senior Component for any Distribution Date shall be deemed to have accrued
during the applicable Interest Accrual Period.
"Accrued SB Component Mortgage Loan Senior Component Interest": With
respect to the SB Component Mortgage Loan Senior Component for any Distribution
Date, one (1) month's interest at the Adjusted Net Mortgage Rate applicable to
the SB Component Mortgage Loan Senior Component for such Distribution Date,
accrued on the SB Component Mortgage Loan Senior Balance of the SB Component
Mortgage Loan Senior Component outstanding immediately prior to such
Distribution Date. For the avoidance of doubt, the Accrued SB Component Mortgage
Loan Senior Component Interest in respect of the SB Component Mortgage Loan
Senior Component for any Distribution Date shall be deemed to have accrued
during the applicable Interest Accrual Period.
"Actual/360 Basis": The accrual of interest calculated on the basis
of the actual number of days elapsed during any calendar month (or other
applicable recurring accrual period) in a year assumed to consist of 360 days.
"Additional Collateral": Any non-real property collateral pledged
and/or delivered by or on behalf of the related Mortgagor and held by the
related Mortgagee to secure payment on any Loan.
"Additional Exclusions": Exclusions relating to terrorist or similar
acts in addition to those customarily found in insurance policies for Mortgaged
Properties prior to September 11, 2001.
"Additional Master Servicing Compensation": As defined in Section
3.11(b).
"Additional Special Servicing Compensation": As defined in Section
3.11(d).
"Additional Trust Fund Expense": Any expense incurred or shortfall
experienced with respect to the Trust Fund and not otherwise included in the
calculation of a Realized Loss, that would result in the Holders of the
Principal Pay Certificates receiving less than the full amount of principal
and/or interest to which they are entitled on any Distribution Date.
"Adjusted Net Mortgage Rate": With respect to any Loan or REO Loan
or the ES Component Mortgage Loan Senior Component or SB Component Mortgage Loan
Senior Component, for any Distribution Date, the annualized rate at which
interest would have to accrue thereon on a 30/360 Basis during the most recently
ended calendar month in order to produce the actual amount of interest accrued
(or, if such Loan or REO Loan, as the case may be, is prepaid, in whole or in
part, or otherwise liquidated during such calendar month, that otherwise would
have accrued) in respect of such Loan or REO Loan, as the case may be, at the
related Net Mortgage Rate in effect for such Loan or REO Loan during such
calendar month. Such rate shall be calculated by multiplying (i) the Net
Mortgage Rate by (ii) the actual number of days of accrued interest for the
related period for such Loan, divided by 30.
"Administrative Fee Rate": With respect to each Mortgage Loan and
REO Loan, as specified in the Mortgage Loan Schedule, being the sum of the
related Master Servicing Fee Rate and the Trustee Fee Rate.
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": Interest accrued on any Advance at the
Reimbursement Rate and payable to the Master Servicer (or any Sub-Servicer), the
Special Servicer, the Trustee or the Fiscal Agent, as the case may be, all in
accordance with Section 3.11(g) or Section 4.03(d), as applicable.
"Adverse Rating Event": With respect to any Class of Rated
Certificates and each Rating Agency that has assigned a rating thereto, as of
any date of determination, the qualification, downgrade or withdrawal of the
rating then assigned to such Class of Rated Certificates by such Rating Agency
(or the placing of such Class of Rated Certificates on "negative credit watch"
status in contemplation of any such action with respect thereto).
"Adverse REMIC Event": With respect to each of the Component
Mortgage Loan REMIC, REMIC I and REMIC II, either (i) the endangerment of the
status of such REMIC as a REMIC or (ii), except as permitted by Section 3.17(a),
the imposition of a tax upon such REMIC or any of its assets or transactions
(including, without limitation, the tax on prohibited transactions as defined in
Section 860F(a)(2) of the Code and the tax on certain contributions set forth in
Section 860G(d) of the Code).
"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 the meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement, together with all
amendments hereof and supplements hereto.
"Annual Accountant's Report": As defined in Section 3.14.
"Annual Performance Certification": As defined in Section 3.13.
"Applicable State Law": For purposes of Article X, the Applicable
State Law shall be (a) the laws of the State of New York, (b) the laws of the
states in which the Corporate Trust Office of the Trustee and the Primary
Servicing Offices of the Master Servicer and the Special Servicer are located,
(c) the laws of the states in which any Loan documents are held and/or any REO
Properties are located, (d) such other state and local law whose applicability
shall have been brought to the attention of the REMIC Administrator by either
(i) an Opinion of Counsel delivered to it or (ii) written notice from the
appropriate taxing authority as to the applicability of such state law, and (e)
such other state or local law as to which the REMIC Administrator has actual
knowledge of applicability.
"Appraisal": With respect to any Mortgaged Property or REO Property
as to which an appraisal is required to be performed pursuant to the terms of
this Agreement, a narrative appraisal complying with USPAP (or, in the case of
Loans and REO Loans with a Stated Principal Balance as of the date of such
appraisal of $2,000,000 or less, at the Special Servicer's option, either a
limited appraisal and a summary report or an internal valuation prepared by the
Special Servicer) that indicates the "market value" of the subject property, as
defined in 12 C.F.R. ss.225.62(g), and is conducted by a Qualified Appraiser (or
by the Special Servicer in the case of a limited appraisal and summary report or
internal valuation with respect to a Loan or an REO Loan with a Stated Principal
Balance as of the date of such appraisal or valuation of $2,000,000 or less).
"Appraisal Reduction Amount": With respect to any Required Appraisal
Loan, an amount (calculated as of the Determination Date immediately following
the later of the date on which the most recent relevant Appraisal acceptable for
purposes of Section 3.19(b) hereof was obtained by the Special Servicer pursuant
to this Agreement and the date of the most recent Appraisal Trigger Event with
respect to such Required Appraisal Loan) equal to the excess, if any, of:
(1) the sum of (a) the Stated Principal Balance of such Required
Appraisal as of such Determination Date, (b) to the extent not previously
advanced by or on behalf of the Master Servicer, or the Trustee, all unpaid
interest (net of Default Interest) accrued on such Required Appraisal Loan
through the most recent Due Date prior to such Determination Date, (c) all
unpaid Master Servicing Fees, Special Servicing Fees, Trustee Fees and
Additional Trust Fund Expenses accrued with respect to such Required Appraisal
Loan, (d) all related unreimbursed Advances made by or on behalf of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent with respect to
such Required Appraisal Loan and reimbursable out of the Trust Fund, together
with all unpaid Advance Interest accrued on such Advances, and (e) all currently
due but unpaid real estate taxes and assessments, insurance premiums and, if
applicable, ground rents in respect of the related Mortgaged Property or REO
Property, as applicable, for which neither the Master Servicer nor the Special
Servicer holds any Escrow Payments or Reserve Funds; over
(2) the sum of (x) the excess, if any, of (i) 90% of the Appraised
Value of the related Mortgaged Property or REO Property, as applicable, as
determined by the most recent relevant Appraisal acceptable for purposes of
Section 3.19(b) hereof, over (ii) the amount of any obligation(s) secured by any
liens on such Mortgaged Property or REO Property, as applicable, that are prior
to the lien of such Required Appraisal Loan, and (y) any Escrow Payments,
Reserve Funds and/or Letters of Credit held by the Master Servicer or the
Special Servicer with respect to such Required Appraisal, the related Mortgaged
Property or any related REO Property (exclusive of any such items that are to be
applied to real estate taxes, assessments, insurance premiums and/or ground
rents or that were taken into account in determining the Appraised Value of the
related Mortgaged Property or REO Property, as applicable, referred to in clause
(2)(x)(i) of this definition).
Notwithstanding the foregoing, if (i) an Appraisal Trigger Event
occurs with respect to any Loan, (ii) either (A) no Appraisal has been obtained
or conducted, as applicable in accordance with Section 3.19(b), with respect to
the related Mortgaged Property during the 12-month period prior to the date of
such Appraisal Trigger Event or (B) there shall have occurred since the date of
the most recent Appraisal a material change in the circumstances surrounding the
related Mortgaged Property that would, in the Special Servicer's judgment,
materially affect the value of the property, and (iii) no new Appraisal is
obtained or conducted, as applicable in accordance with Section 3.19(b), within
60 days after such Appraisal Trigger Event, then (x) until such new Appraisal is
obtained or conducted, as applicable in accordance with Section 3.19(b), the
Appraisal Reduction Amount shall equal 25% of the Stated Principal Balance of
such Required Appraisal Loan, and (y) upon receipt or performance, as applicable
in accordance with Section 3.19(b), of such new Appraisal by the Special
Servicer, the Appraisal Reduction Amount for such Required Appraisal Loan will
be recalculated in accordance with the preceding sentence of this definition.
Also notwithstanding the foregoing, if and when any
Cross-Collateralized Mortgage Loan becomes a Required Appraisal Loan, an
Appraisal Reduction Amount shall be calculated for the entire
Cross-Collateralized Group to which that particular Cross-Collateralized
Mortgage Loan belongs as if such Cross-Collateralized Group was a single
Mortgage Loan secured by multiple properties, and any resulting Appraisal
Reduction Amount for such Cross-Collateralized Group shall be allocated among
the respective Cross-Collateralized Mortgage Loans forming that group on a pro
rata basis in accordance with the respective Stated Principal Balances of those
Mortgage Loans.
In addition notwithstanding anything to the contrary and for the
avoidance of doubt for purposes of calculating Appraisal Reduction Amounts with
respect to the Wellbridge A/B Mortgage Loan, references to the Stated Principal
Balance will be to the entire Stated Principal Balance thereof (i.e. the
aggregate Stated Principal Balances of the Wellbridge Senior Notes and the
Wellbridge Note B) and "Appraisal Reduction Amount" shall mean an amount
(calculated as of the Determination Date immediately following the later of the
date on which the most recent relevant Appraisal acceptable for purposes of
Section 3.19(b) hereof was obtained by the Special Servicer pursuant to this
Agreement and the date of the most recent Appraisal Trigger Event with respect
to the Wellbridge A/B Mortgage Loan) equal to the excess, if any, of:
(1) the sum of (a) the Stated Principal Balance of the Wellbridge
A/B Mortgage Loan as of such Determination Date, (b) to the extent not
previously advanced by or on behalf of the Master Servicer, or the Trustee, all
unpaid interest (net of Default Interest) accrued on the Wellbridge A/B Mortgage
Loan through the most recent Due Date prior to such Determination Date, (c) all
unpaid Master Servicing Fees, Special Servicing Fees, Trustee Fees and
Additional Trust Fund Expenses accrued with respect to the Wellbridge A/B
Mortgage Loan, (d) all related unreimbursed Advances made by or on behalf of the
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent with
respect to the Wellbridge A/B Mortgage Loan and reimbursable out of the Trust
Fund, together with all unpaid Advance Interest accrued on such Advances, and
(e) all currently due but unpaid real estate taxes and assessments, insurance
premiums and, if applicable, ground rents in respect of the related Mortgaged
Property or REO Property, as applicable, for which neither the Master Servicer
nor the Special Servicer holds any Escrow Payments or Reserve Funds; over
(2) the sum of (x) the excess, if any, of (i) 90% of the Appraised
Value of the related Mortgaged Property or REO Property, as applicable, as
determined by the most recent relevant Appraisal acceptable for purposes of
Section 3.19(b) hereof, over (ii) the amount of any obligation(s) secured by any
liens on such Mortgaged Property or REO Property, as applicable, that are prior
to the lien of the Wellbridge A/B Mortgage Loan, and (y) any Escrow Payments,
Reserve Funds and/or Letters of Credit held by the Master Servicer or the
Special Servicer with respect to the Wellbridge A/B Mortgage Loan, the related
Mortgaged Property or any related REO Property (exclusive of any such items that
are to be applied to real estate taxes, assessments, insurance premiums and/or
ground rents or that were taken into account in determining the Appraised Value
of the related Mortgaged Property or REO Property, as applicable, referred to in
clause (2)(x)(i) of this definition).
Any Appraisal Reduction Amount for the Wellbridge A/B Mortgage Loan
shall be allocated as follows, first to the Wellbridge Note B Loan and then to
the Wellbridge Senior Notes pro rata based on each such Wellbridge Senior Note's
outstanding principal balance.
"Appraisal Trigger Event": With respect to any Loan or Loan Pair,
any of the following events:
(i) such Loan or Loan Pair becomes a Modified Loan;
(ii) any Monthly Payment with respect to such Loan or Loan Pair
remains unpaid for 60 days past the Due Date for such payment (or for such
shorter period at the end of which such delinquency will become a Servicing
Transfer Event);
(iii) the passage of 60 days after the Special Servicer receives
notice that the Mortgagor under such Loan or Loan Pair becomes the subject of
bankruptcy, insolvency or similar proceedings, which remain undischarged and
undismissed;
(iv) the passage of 60 days after the Special Servicer receives
notice that a receiver or similar official is appointed with respect to the
related Mortgaged Property;
(v) the related Mortgaged Property becomes an REO Property, or
(vi) if a Loan has been extended three times, upon the 60th day
after the third extension.
"Appraised Value": As of any date of determination, the appraised
value of a Mortgaged Property or REO Property based upon the most recent
Appraisal obtained or conducted, as appropriate, pursuant to this Agreement.
"Approval Provisions": With respect to any Loan and the provisions
set forth in Section 3.21(e) hereof, the approvals and consents and the time
frames for such approvals and consents necessary in connection with the taking
of a Special Action or the extension of the maturity date of a Loan set forth
below:
(i) with respect to any Performing Loan, the Master Servicer shall
obtain the approval or consent of the Special Servicer;
(ii) with respect to (A) any Non-Partitioned Loan or Post CAP Loan
which is a Performing Loan that involves an extension of the maturity date
of such Loan or (B) in connection with a Special Action for any
Non-Partitioned Loan or Post CAP Loan which is a Performing Loan with a
then Stated Principal Balance in excess of $2,500,000, the Master Servicer
shall obtain the approval and consent of the Special Servicer and the
Special Servicer shall obtain the approval and consent of the Directing
Certificateholder;
(iii) with respect to any Non-Partitioned Loan or Post CAP Loan
which is a Specially Serviced Loan, the Special Servicer shall obtain the
approval and consent of the Directing Certificateholder;
(iv) with respect to the ES Component Mortgage Loan during any time
period that an ES Control Appraisal Period does not exist, the Master
Servicer, if the ES Component Mortgage Loan is a then Performing Loan,
shall obtain the approval and consent of the Special Servicer, and the
Special Servicer shall then obtain the approval and consent of the ES
Controlling Holder;
(v) with respect to the SB Component Mortgage Loan during any time
period that an SB Control Appraisal Period does not exist, the Master
Servicer, if the SB Component Mortgage Loan is a then Performing Loan,
shall seek the approval and consent of the Special Servicer, and the
Special Servicer shall then obtain the approval and consent of the SB
Controlling Holder;
(vi) with respect to the Wellbridge Whole Loan, the Master Servicer,
if the Wellbridge Whole Loan is a then Performing Loan, shall seek the
approval and consent of the Special Servicer, and the Special Servicer
shall then obtain the approval and consent of the Wellbridge Controlling
Holder;
(vii) with respect to the ES Component Mortgage Loan during any time
period that an ES Control Appraisal Period does not exist, the Special
Servicer, if the ES Component Mortgage Loan is a then Specially Serviced
Loan, shall obtain the approval and consent of the ES Controller Holder;
(viii) with respect to the SB Component Mortgage Loan during any
time period that an SB Control Appraisal Period does not exist, the
Special Servicer, if the SB Component Mortgage Loan is a then Specially
Serviced Loan, shall obtain the approval and consent of the SB Controlling
Holder; and
(ix) with respect to the Wellbridge Whole Loan, the Special
Servicer, if the Wellbridge Whole Loan is a then Specially Serviced Loan,
shall obtain the approval and consent of the Wellbridge Controlling
Holder, in connection with a Special Action.
With respect to any extension or Special Action set forth in clause
(ii) above, the Special Servicer shall respond to the Master Servicer in writing
(which may be via e-mail or facsimile) of its decision to grant or deny the
Master Servicer's request for approval and consent within ten Business Days of
its receipt of such request and all information reasonably requested by the
Special Servicer, as such time frame may be extended if the Special Servicer is
required to seek the consent of the Directing Certificateholder, the ES
Controlling Holder, the SB Controlling Holder, the Wellbridge Controlling Holder
or any Rating Agency. If the Special Servicer so fails to respond to the Master
Servicer within the time period referenced in the immediately preceding
sentence, such approval and consent shall be deemed granted. With respect to any
Special Action described in clauses (ii) and (iii) above, the Directing
Certificateholder shall respond to the Special Servicer within ten Business Days
of its receipt of such request in writing (which may be via e-mail or facsimile)
and such request will be deemed granted if the Directing Certificateholder does
not respond in such time frame. With respect to any Special Action described in
clauses (iv) through (ix) above, the ES Controlling Holder, the SB Controlling
Holder, the Wellbridge Controlling Holder, as applicable, shall respond in
writing (which may be via e-mail or facsimile) to the Master Servicer or the
Special Servicer, as applicable, within ten Business Days of its receipt of a
request for its approval and consent, and such request will be deemed granted if
the required party does not respond in such time frame.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment Documents": With respect to any Loan, any of the
following:
(i) the documents identified in clause (iv) of the definition
of Mortgage File, together with any intervening assignments from the
originator to the most recent assignee prior to the Trustee;
(ii) the documents identified in clause (v) of the definition
of Mortgage File, together with any intervening assignments from the
originator to the most recent assignee prior to the Trustee;
(iii) any UCC-2 or UCC-3 filing identified in clause (viii) of
the definition of Mortgage File, including any intervening UCC-2 or
UCC-3 from each assignee of record prior to the Trustee; or
(iv) an original assignment of any related Security Agreement
(if such item is a document separate from the related Mortgage)
executed by the most recent assignee of record thereof prior to the
Trustee or, if none, by the originator, in favor of the Trustee (in
such capacity), together with any collateral therefor (including
without limitation securities) in the Mortgage Loan Seller's
possession, which assignment may be included as part of the
corresponding assignment of the related Mortgage referred to in
clause (iv) of the definition of Mortgage File.
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the Mortgagor in connection with the related Loan, as amended,
modified, renewed or extended through the date hereof and from time to time
hereafter.
"Assumed Monthly Payment": With respect to any Balloon Loan for its
Stated Maturity Date (provided that such Loan has not been paid in full, and no
other Liquidation Event has occurred in respect thereof, on or before the end of
the Collection Period in which such Stated Maturity Date occurs) and for any
subsequent Due Date which such Mortgage Loan remains outstanding and part of the
Trust Fund, if no Monthly Payment (other than a delinquent Balloon Payment) is
due for such Due Date, the scheduled monthly payment of principal and/or
interest deemed to be due in respect thereof on such Due Date equal to the
amount that would have been due in respect of such Loan on such Due Date if it
had been required to continue to accrue interest in accordance with its terms,
and to pay principal in accordance with the amortization schedule (if any), in
effect immediately prior to, and without regard to the occurrence of, its most
recent scheduled maturity date (as such terms and amortization schedule may have
been modified, and such maturity date may have been extended, in connection with
a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Loan granted or agreed to by the
Master Servicer or Special Servicer pursuant to Section 3.20). With respect to
any REO Loan, for any Due Date therefor as of which the related REO Property
remains part of the Trust Fund, the scheduled monthly payment of principal
and/or interest deemed to be due in respect thereof on such Due Date equal to
the Monthly Payment that was due (or, in the case of a Balloon Loan described in
the preceding sentence of this definition, the Assumed Monthly Payment that was
deemed due) in respect of the related Mortgage Loan on the last Due Date prior
to its becoming an REO Loan.
"Available Distribution Amount": With respect to any Distribution
Date, the sum of (I) with respect to each Majority Mortgage Loan (other than the
Wellbridge Mortgage Loan), an amount equal to (a) the balance on deposit in the
Distribution Account as of 11:30 a.m. (New York City time) on such Distribution
Date (or such later time on such date as of which distributions are made on the
Certificates), including, without limitation, if and to the extent on deposit
therein as of such time, the Master Servicer Remittance Amount for the related
Master Servicer Remittance Date, any P&I Advances made by the Master Servicer,
the Trustee or the Fiscal Agent to cover uncollected Monthly Payments due and/or
Assumed Monthly Payments deemed due during the related Collection Period, any
Compensating Interest Payments made by the Master Servicer to cover Prepayment
Interest Shortfalls incurred during the related Collection Period, and for the
Distribution Date occurring in each March, the related Withheld Amounts remitted
to the Distribution Account pursuant to Section 4.05, net of (b) any portion of
the amounts described in clause (a) of this definition that represents one or
more of the following: (i) collected Monthly Payments that are due on a Due Date
following the end of the related Collection Period, (ii) any payments of
principal (including, without limitation, Principal Prepayments) and interest,
Liquidation Proceeds and Insurance Proceeds received after the end of the
related Collection Period, (iii) Prepayment Premiums, (iv) any amounts payable
or reimbursable to any Person from the Distribution Account pursuant to any of
clauses (ii) through (vi) of Section 3.05(b), (v) any amounts deposited in the
Distribution Account in error, (vi) any amounts payable or reimbursable to any
Person from the Certificate Account pursuant to clauses (ii) through (xvii) of
Section 3.05(a), and (vii) with respect to each Mortgage Loan which accrues
interest on an Actual/360 Basis and any Distribution Date relating to the one
(1) month period preceding the Distribution Date in each February (and in any
January of a year which is not a leap year), an amount equal to the related
Withheld Amount pursuant to Section 4.05; provided that the Available
Distribution Amount for the Final Distribution Date shall be calculated without
regard to clauses (b)(i) and (b)(ii) of this definition; (II) with respect to
the Class ES Component Mortgage Loan, all amounts distributable pursuant to
Section 4.01(i)(i), (ii) and (iii); and (III) with respect to the Class SB
Component Mortgage Loan, all amounts distributable pursuant to Section
4.01(j)(i), (ii) and (iii). For avoidance of doubt, the Available Distribution
Amount shall not include any amount which constitutes some or all of the Class
WB Available Distribution Amount.
"BACM": Banc of America Commercial Mortgage Inc., or its successor
in interest.
"Balloon Loan": Any Loan that by its original terms or by virtue of
any modification entered into as of the Closing Date (or, in the case of a
Replacement Mortgage Loan, as of the related date of substitution) provides for
an amortization schedule extending beyond its Stated Maturity Date and as to
which, in accordance with such terms, the Monthly Payment due on its Stated
Maturity Date is at least two times larger than the Monthly Payment due on the
Due Date next preceding its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Loan as of any date
of determination, the Monthly Payment payable on the Stated Maturity Date of
such Loan.
"Balloon Payment Interest Shortfall": With respect to any Balloon
Loan that is included as part of the Trust Fund, with a Stated Maturity Date
that occurs after, or that provides for a grace period for its Balloon Payment
that runs past, the Determination Date in any calendar month, and as to which
the Balloon Payment is actually received after the Determination Date in such
calendar month (but no later than its Stated Maturity Date or, if there is an
applicable grace period, beyond the end of such grace period), the amount of
interest, to the extent not collected from the related Determination Date, that
would have accrued on the principal portion of such Balloon Payment during the
period from the related Stated Maturity Date to, but not including, the first
day of the calendar month following the month of maturity (less the amount of
related Master Servicing Fees that would have been payable from that uncollected
interest and, if applicable, exclusive of any portion of that uncollected
interest that would have been Default Interest).
"Bank": As defined in Section 2.07.
"Bank of America": Bank of America, N.A., or its successor in
interest.
"Bank of America Sub-Servicer": Any one of those Sub-Servicers
listed on Schedule II attached hereto.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Interest Fraction" As defined in Section 4.01(c).
"Base Prospectus": That certain prospectus dated March 31, 2003,
relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Borrower": Individually and collectively, as the context may
require, the obligor or obligors under a Loan, including any Person that has not
signed the related Mortgage Note but owns an interest in the related Mortgaged
Property, which interest has been encumbered to secure such Loan.
"Breach": With respect to any Mortgage Loan, any breach of
representation or warranty made by the Mortgage Loan Seller pursuant to Section
4(b) of the Mortgage Loan Purchase and Sale Agreement.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in California, New York, North Carolina, Missouri,
Texas and Illinois and the jurisdictions in which the Primary Servicing Offices
of the Master Servicer and Special Servicer and the Corporate Trust Office of
the Trustee are located, are authorized or obligated by law or executive order
to remain closed.
"CBA A Note": With respect to any CBA Mortgage Loan, the related
Mortgage Note which is included in the Trust Fund.
"CBA A/B Mortgage Loan": With respect to each of the five (5) CBA
Mortgage Loans, such Mortgage Loan together with the related CBA B Note.
References herein to each CBA A/B Mortgage Loan shall be construed to refer to
the aggregate indebtedness under the related CBA A Note and the related CBA B
Note.
"CBA B Note": With respect to each CBA A/B Mortgage Loan, the
related Mortgage Note not included in the Trust, which is subordinated in right
of payment to the related CBA A Note to the extent set forth in the related CBA
Co-Lender Agreement.
"CBA B Noteholder": Each holder of a CBA B Note.
"CBA Co-Lender Agreement": With respect to each CBA A/B Mortgage
Loan, the related intercreditor agreement by and between the holder of the
related CBA Mortgage Loan and the holder of the related CBA B Note relating to
the relative rights of such holders of the respective CBA A Note and CBA B Note,
as the same may be further amended from time to time in accordance with the
terms thereof.
"CBA Mortgage Loan": The Mortgage Loans identified as Loan Nos.
53370, 53352, 53371, 56888 and 56889 in the Mortgage Loan Schedule, which,
together with the related CBA B Note, is secured by a Mortgage on the related
CBA Mortgaged Property.
"CBA Mortgaged Property": With respect to the corresponding CBA A/B
Mortgage Loan, the respective property or properties which secures such CBA A/B
Mortgage Loan.
"CBA Noteholders": With respect to each CBA A/B Mortgage Loan,
collectively, the holder of the Mortgage Note for the related CBA Mortgage Loan
and the related CBA B Noteholder.
"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 2003-1 as executed by the Trustee and
authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Account": The segregated account or accounts created
and maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of
the Trustee in trust for Certificateholders, which shall be entitled "Bank of
America, N.A., as Master Servicer, in trust for the registered holders of Banc
of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2003-1, Certificate Account".
"Certificate Factor": With respect to any Class of REMIC II Regular
Certificates, Class ES Certificates, Class SB Certificates or Class WB
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to eight places, the numerator of which is the then related
Class Principal Balance or Class Notional Amount, as the case may be, and the
denominator of which is the related Initial Class Principal Balance or Initial
Class Notional Amount, as the case may be.
"Certificate Notional Amount": With respect to any Class XC, Class
XP-1 or Class XP-2 Certificate, as of any date of determination, the then
notional amount of such Certificate equal to the product of (a) the Percentage
Interest evidenced by such Certificate, multiplied by (b) the then Class
Notional Amount of such Class XC, Class XP-1 or Class XP-2 Certificate, as
applicable.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Principal Balance": With respect to any Sequential Pay
Certificate, Class ES Certificate, Class SB Certificate or Class WB Certificate,
as of any date of determination, the then outstanding principal amount of such
Certificate equal to the product of (a) the Percentage Interest evidenced by
such Certificate, multiplied by (b) the then Class Principal Balance of the
Class of Certificates to which such Certificate belongs.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided that solely for
the purposes of giving any consent, approval or waiver pursuant to this
Agreement, any Certificate registered in the name of the Depositor, the Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the REMIC Administrator,
the Trustee or the Fiscal Agent or any Affiliate of any of them shall be deemed
not to be outstanding, and the Voting Rights to which any of them 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, except as otherwise provided in Sections 7.04 and 11.01 or except
in connection with the Controlling Class exercising its rights under Section
3.23, or unless such Persons collectively own an entire Class of Certificates
and only the Holders of such Class of Certificates are entitled to grant such
consent, approval or waiver. The Certificate Registrar shall be entitled to
request and rely upon a certificate of the Depositor, the Master Servicer, the
Special Servicer or, if other than the Trustee, the REMIC Administrator, as the
case may be, in determining whether or not 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.
"Certification Party": As defined in Section 8.13(c).
"Certifying Person": As defined in Section 8.13(c).
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical Class designation, and each REMIC I
Regular Interest.
"Class A Certificate": Any one of the Class A-1 and Class A-2
Certificates.
"Class A-1 Certificate": Any one of the Certificates with a "Class
A-1" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-1 Pass-Through Rate": A per annum rate equal to 3.8780%.
"Class A-2 Certificate": Any one of the Certificates with a "Class
A-2" designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-2 Pass-Through Rate": A per annum rate equal to 4.6480%.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class B Pass-Through Rate": A per annum rate equal to 4.8050%.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class C Pass-Through Rate": A per annum rate equal to 4.8440%.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class D Pass-Through Rate": A per annum rate equal to 4.9030%;
provided, however, that the Class D Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class E Pass-Through Rate": A per annum rate equal to 4.9720%;
provided, however, that the Class E Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class ES Certificates": Each of the Class ES-A, Class ES-B, Class
ES-C, Class ES-D, Class ES-E, Class ES-F, Class ES-G and Class ES-H
Certificates.
"Class ES Pass-Through Rate": With respect to any Distribution Date
and any Class of Class ES Certificates, the rate per annum set forth in the
Preliminary Statement hereto.
"Class ES-A Certificate": Any one of the Certificates with a "Class
ES-A" designation on the face thereof, substantially in the form of Exhibit A-22
attached hereto, and evidencing a "regular interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class ES-B Certificate": Any one of the Certificates with a "Class
ES-B" designation on the face thereof, substantially in the form of Exhibit A-22
attached hereto, and evidencing a "regular interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class ES-C Certificate": Any one of the Certificates with a "Class
ES-C" designation on the face thereof, substantially in the form of Exhibit A-22
attached hereto, and evidencing a "regular interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class ES-D Certificate": Any one of the Certificates with a "Class
ES-D" designation on the face thereof, substantially in the form of Exhibit A-22
attached hereto, and evidencing a "regular interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class ES-E Certificate": Any one of the Certificates with a "Class
ES-E" designation on the face thereof, substantially in the form of Exhibit A-22
attached hereto, and evidencing a "regular interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class ES-F Certificate": Any one of the Certificates with a "Class
ES-F" designation on the face thereof, substantially in the form of Exhibit A-22
attached hereto, and evidencing a "regular interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class ES-G Certificate": Any one of the Certificates with a "Class
ES-G" designation on the face thereof, substantially in the form of Exhibit A-22
attached hereto, and evidencing a "regular interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class ES-H Certificate": Any one of the Certificates with a "Class
ES-H" designation on the face thereof, substantially in the form of Exhibit A-22
attached hereto, and evidencing a "regular interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-10
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class F Pass-Through Rate": A per annum rate equal to 5.5070%.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-11
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class G Pass-Through Rate": A per annum rate equal to 5.6080%;
provided, however, that the Class G Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-12
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class H Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-13
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class J Pass-Through Rate": A per annum rate equal to 4.9000%;
provided, however, that the Class J Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-14
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class K Pass-Through Rate": A per annum rate equal to 4.9000%;
provided, however, that the Class K Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class L Certificate": Any one of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of Exhibit A-15
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class L Pass-Through Rate": A per annum rate equal to 4.9000%;
provided, however, that the Class L Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class M Certificate": Any one of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of Exhibit A-16
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class M Pass-Through Rate": A per annum rate equal to 4.9000%;
provided, however, that the Class M Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class N Certificate": Any one of the Certificates with a "Class N"
designation on the face thereof, substantially in the form of Exhibit A-17
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class N Pass-Through Rate": A per annum rate equal to 4.9000%;
provided, however, that the Class N Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class Notional Amount": The Class XC Notional Amount, the Class
XP-1 Notional Amount and the Class XP-2 Notional Amount.
"Class O Certificate": Any one of the Certificates with a "Class O"
designation on the face thereof, substantially in the form of Exhibit A-18
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class O Pass-Through Rate": A per annum rate equal to 4.9000%;
provided, however, that the Class O Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class P Certificate": Any one of the Certificates with a "Class P"
designation on the face thereof, substantially in the form of Exhibit A-19
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class P Pass-Through Rate": A per annum rate equal to 4.9000%;
provided, however, that the Class P Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class Principal Balance": The aggregate principal amount of any
Class of Sequential Pay Certificates, Class ES Certificates, Class SB
Certificates or Class WB Certificates outstanding as of any date of
determination. As of the Closing Date, the Class Principal Balance of each such
Class of Certificates shall equal the Initial Class Principal Balance thereof.
On each Distribution Date, the Class Principal Balance of each Class of the
Sequential Pay Certificates, Class ES Certificates, Class SB Certificates and
Class WB Certificates shall be permanently reduced by the amount of any
distributions of principal made thereon on such Distribution Date pursuant to
Section 4.01(b), Section 4.01(i), Section 4.01(j) and Section 4.01(k), as
applicable, and shall be further permanently reduced on such Distribution Date
as and to the extent provided in Section 4.04.
"Class R-I Certificate": Any one of the Certificates with a "Class
R-I" designation on the face thereof, substantially in the form of Exhibit A-20
attached hereto, and evidencing the Component Mortgage Loan REMIC Residual
Interest and the REMIC I Residual Interest.
"Class R-II Certificate": Any one of the Certificates with a "Class
R-II" designation on the face thereof, substantially in the form of Exhibit A-20
attached hereto, and evidencing the sole Class of "residual interest" in REMIC
II for purposes of the REMIC Provisions.
"Class SB Certificates": Each of the Class SB-A, Class SB-B, Class
SB-C, Class SB-D and Class SB-E Certificates.
"Class SB Pass-Through Rate": With respect to any Distribution Date
and any Class of Class SB Certificates, the rate per annum set forth in the
Preliminary Statement hereto.
"Class SB-A Certificate": Any one of the Certificates with a "Class
SB-A" designation on the face thereof, substantially in the form of Exhibit A-23
attached hereto, and evidencing a "regular interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class SB-B Certificate": Any one of the Certificates with a "Class
SB-B" designation on the face thereof, substantially in the form of Exhibit A-23
attached hereto, and evidencing a "regular interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class SB-C Certificate": Any one of the Certificates with a "Class
SB-C" designation on the face thereof, substantially in the form of Exhibit A-23
attached hereto, and evidencing a "regular interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class SB-D Certificate": Any one of the Certificates with a "Class
SB-D" designation on the face thereof, substantially in the form of Exhibit A-23
attached hereto, and evidencing a "regular interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class SB-E Certificate": Any one of the Certificates with a "Class
SB-E" designation on the face thereof, substantially in the form of Exhibit A-23
attached hereto, and evidencing a "regular interest" in the Component Mortgage
Loan REMIC for purposes of the REMIC Provisions.
"Class WB Available Distribution Amount": With respect to the
Wellbridge Note B Loan and any Distribution Date, an amount equal to (a) the
balance on deposit in the Distribution Account as of 11:30 a.m. (New York City
time) on such Distribution Date (or such later time on such date as of which
distributions are made on the Certificates) payable to and received by the
Trustee, as holder of the Wellbridge Note B Loan pursuant to the Wellbridge
Intercreditor Agreement, any P&I Advances made by the Master Servicer, the
Trustee or the Fiscal Agent or to cover uncollected Monthly Payments due and/or
Assumed Monthly Payments deemed due during the related Collection Period with
respect to the Wellbridge Note B Loan, and any Compensating Interest Payments
made by the Master Servicer to cover Prepayment Interest Shortfalls incurred
during the related Collection Period with respect to the Wellbridge Note B Loan,
net of (b) any portion of the amounts described in clause (a) of this definition
that represents one or more of the following: (i) collected Monthly Payments
with respect to the Wellbridge Note B Loan that are due on a Due Date following
the end of the related Collection Period, (ii) any payments of principal
(including, without limitation, Principal Prepayments) and interest, Liquidation
Proceeds and Insurance Proceeds received after the end of the related Collection
Period with respect to the Wellbridge Note B Loan, (iii) Prepayment Premiums,
(iv) any amounts payable or reimbursable to any Person from the Distribution
Account pursuant to any of clauses (ii) through (vi) of Section 3.05(b), (v) any
amounts deposited in the Distribution Account in error, and (vi) any amounts
payable or reimbursable to any Person from the related Loan Pair Custodial
Account pursuant to clauses (ii) through (xvi) and clause (xix) of Section
3.05(f); and (c) provided that the Class WB Available Distribution Amount for
the Final Distribution Date shall be calculated without regard to clauses (b)(i)
and (b)(ii) of this definition.
"Class WB Certificates": Each of the Class WB-A, Class WB-B, Class
WB-C and Class WB-D Certificates.
"Class WB Current Principal Distribution Amount": With respect to a
Distribution Date, the sum of the following amounts:
(a) the principal portions of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments due or deemed due, as
the case may be, in respect of the Wellbridge Note B Loan or successor REO
Loan for its Due Date occurring during the related Collection Period;
(b) all Principal Prepayments received on the Wellbridge Note B Loan
during the related Collection Period;
(c) with respect to the Wellbridge Note B Loan's Stated Maturity
Date occurred during or prior to the related Collection Period, any
payment of principal (exclusive of any Principal Prepayment and any amount
described in subclause (d) below) that was made by or on behalf of the
related Mortgagor during the related Collection Period, net of any portion
of such payment that represents a recovery of the principal portion of any
Monthly Payment (other than a Balloon Payment) due, or the principal
portion of any Assumed Monthly Payment deemed due, in respect of such
Balloon Loan on a Due Date during or prior to the related Collection
Period and not previously recovered;
(d) all Liquidation Proceeds (net of Liquidation Expenses) and
Insurance Proceeds received on or in respect of the Wellbridge Note B Loan
during the related Collection Period that were identified and applied by
the Master Servicer as recoveries of principal thereof, in each case net
of any portion of such amounts that represents a recovery of the principal
portion of any Monthly Payment (other than a Balloon Payment) due, or of
the principal portion of any Assumed Monthly Payment deemed due, in
respect of the Wellbridge Note B Loan on a Due Date during or prior to the
related Collection Period and not previously recovered; and
(e) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance Proceeds and REO Revenues received on or in respect of any REO
Properties during the related Collection Period that were identified and
applied by the Master Servicer as recoveries of principal of the
Wellbridge Note B Loan if it has become an REO Loan, in each case net of
any portion of such amounts that represents a recovery of the principal
portion of any Monthly Payment (other than a Balloon Payment) due, or of
the principal portion of any Assumed Monthly Payment deemed due, in
respect of any such REO Loan during or prior to the related Collection
Period and not previously recovered.
"Class WB Pass-Through Rate": With respect to any Distribution Date
and any Class of Class WB Certificates, the rate per annum set forth in the
Preliminary Statement hereto.
"Class WB Principal Distribution Amount": With respect to any
Distribution Date, the aggregate of the Class WB Current Principal Distribution
Amount for such Distribution Date and, if such Distribution Date is subsequent
to the initial Distribution Date, the excess, if any, of the Class WB Current
Principal Distribution Amount for the preceding Distribution Date, over the
aggregate distributions of principal made on the Class WB Certificates on the
preceding Distribution Date.
"Class WB Principal Entitlement": In the absence of a monetary event
of default or other material event of default under the Wellbridge A/B Mortgage
Loan, principal will be paid on the Class WB Certificates, pro rata (in
accordance with their respective outstanding principal balances). If any of the
events of default described in the prior sentence exists with respect to the
Wellbridge Note B Loan, principal will be paid sequentially on the Class WB
Certificates until each such Certificate Balance is reduced to zero. Accordingly
the "Class WB Principal Entitlement" with respect to any Class of Class WB
Certificates is (a) prior to monetary event of default or other material event
of default under the Wellbridge A/B Mortgage Loan, an amount equal to such
Classes' pro rata share of the Class WB Principal Distribution Amount and (b)
after any monetary default or other material event of default under the
Wellbridge A/B Note Loan, an amount equal to the lesser of (i) the outstanding
principal balance of such Class of Class WB Certificate and (ii) the portion of
the Class WB Principal Distribution Amount remaining after giving effect to all
distributions of higher priority on such Distribution Date.
"Class WB-A Certificate": Any one of the Certificates with a "Class
WB-A" designation on the face thereof, substantially in the form of Exhibit A-24
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class WB-B Certificate": Any one of the Certificates with a "Class
WB-B" designation on the face thereof, substantially in the form of Exhibit A-24
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class WB-C Certificate": Any one of the Certificates with a "Class
WB-C" designation on the face thereof, substantially in the form of Exhibit A-24
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class WB-D Certificate": Any one of the Certificates with a "Class
WB-D" designation on the face thereof, substantially in the form of Exhibit A-24
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class X Certificates": The Class XC Certificates, the Class XP-1
Certificates and the Class XP-2 Certificates.
"Class XC Certificate": Any one of the Certificates with a "Class
XC" designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class XC Notional Amount": As of any date of determination, the sum
of the then Component Notional Amounts of all of the Components.
"Class XC Pass-Through Rate": With respect to the initial
Distribution Date, 0.2102% per annum, and for any subsequent Distribution Date,
the weighted average of the Class XC 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 XC Strip Rate": With respect to any Class of Components
(other than the Class XP-2 Components and the Class XP-1 Components prior to
their Class XP-2 Component Crossover Date or Class XP-1 Component Crossover
Date, as applicable) for any Distribution Date, a rate per annum equal to (i)
the Weighted Average Adjusted Net Mortgage Rate for such Distribution Date,
minus (ii) the Pass-Through Rate for the Corresponding Certificates. In the case
of the Class XP-2 Components (i) for any Distribution Date occurring on or
before the related Class XP-2 Component Crossover Date, (x) the Weighted Average
Adjusted Net Mortgage Rate for such Distribution Date minus (y) the sum of the
Pass-Through Rate for the Corresponding Certificates for such Distribution Date
and the Class XP-2 Strip Rate for such Component for such Distribution Date, and
(ii) for any Distribution Date occurring after the related Class XP-2 Component
Crossover Date, a rate per annum equal to (x) the Weighted Average Adjusted Net
Mortgage Rate for such Distribution Date, minus (y) the Pass-Through Rate for
the Corresponding Certificates (provided that in no event shall any Class XC
Strip Rate be less than zero). In the case of the Class XP-1 Components (i) for
any Distribution Date occurring on or before the related Class XP-1 Component
Crossover Date, (x) the Weighted Average Adjusted Net Mortgage Rate for such
Distribution Date minus (y) the sum of the Pass-Through Rate for the
Corresponding Certificates for such Distribution Date and the Class XP-1 Strip
Rate for such Component for such Distribution Date, and (ii) for any
Distribution Date occurring after the related Class XP-1 Component Crossover
Date, if such Component is not a Class XP-2 Component, then the applicable rate
described in the first sentence of this paragraph, and if such Component is a
Class XP-2 Component, then the applicable rate described in the second sentence
of this paragraph. In no event shall any Class XC Strip Rate be less than zero.
"Class XP Reference Rate": For any Distribution Date, the rate per
annum corresponding to such Distribution Date on Schedule IV.
"Class XP-1 Certificate": Any one of the Certificates with a "Class
XP-1" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class XP-1 Component Crossover Date": With respect to each Class
XP-1 Component, other than Component XA-1-2, the Class XP-1 Crossover Date will
be the Distribution Date in May 2006. With respect to Component XA-1-2, the
Class XP-1 Crossover Date will be the Distribution Date in May 2005.
"Class XP-1 Components": Each of Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XA-1-8, Component XX-0-00, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XB-1, Component XC-1, Component XD-1, Component
XE-1, Component XF-1, Component XG-1, Component XG-3, Component XX-0, Xxxxxxxxx
XX-0, Xxxxxxxxx XX-0, Component XJ-3, Component XK-1, Component XK-3 and
Component XL-1.
"Class XP-1 Notional Amount": As of any date of determination, the
sum of the then Component Notional Amounts of the Class XP-1 Components.
"Class XP-1 Pass-Through Rate": With respect to the initial
Distribution Date, the Class XP-1 Certificates for the initial Distribution
Date, 1.4752% per annum, and for any subsequent Distribution Date, the weighted
average of the Class XP-1 Strip Rates for the respective Class XP-1 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 XP-1 Strip Rate": With respect to each of the Class XP-1
Components for any Distribution Date, a rate per annum equal to (i) for any
Distribution Date occurring on or before the related Class XP-1 Component
Crossover Date, (x) the lesser of (I) the Weighted Average Adjusted Net Mortgage
Rate for such Distribution Date and (II) the Class XP Reference Rate for such
Distribution Date minus (y) the Pass-Through Rate for the Corresponding
Certificates (provided that in no event shall any Class XP-1 Strip Rate be less
than zero), and (ii) for any Distribution Date occurring after the related Class
XP-1 Component Crossover Date, 0% per annum.
"Class XP-2 Certificate": Any one of the Certificates with a "Class
XP-2" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class XP-2 Component Crossover Date": With respect to each XP-2
Component and the related Class XP-2 Crossover Date as set forth in the table
below:
Class XP-2 Component Class XP-2 Crossover Date
------------------------------- --------------------------
Component XA-1-3 May 2005 Distribution Date
Component XA-1-5 May 2006 Distribution Date
Components XA-1-6 and XA-1-7 May 2007 Distribution Date
Components XA-1-8 and XA-1-9 May 2008 Distribution Date
Components XA-1-10 and XA-1-11 May 2009 Distribution Date
Components XA-2-1 and XA-2-2 May 2008 Distribution Date
Components XA-2-3 and XA-2-4 May 2009 Distribution Date
Components XB-1 and XB-2 May 2010 Distribution Date
Components XC-1 and XC-2 May 2010 Distribution Date
Components XD-1 and XD-2 May 2010 Distribution Date
Components XE-1 and XE-2 May 2010 Distribution Date
Components XF-1 and XF-2 May 2010 Distribution Date
Components XG-1 and XG-2 May 2009 Distribution Date
Components XG-3 and XG-4 May 2010 Distribution Date
Components XH-1 and XH-2 May 2008 Distribution Date
Components XH-3 and XH-4 May 2009 Distribution Date
Components XJ-1 and XJ-2 May 2007 Distribution Date
Components XJ-3 and XJ-4 May 2008 Distribution Date
Components XK-1 and XK-2 May 2006 Distribution Date
Components XK-3 and XK-4 May 2007 Distribution Date
Components XL-1 and XL-2 May 2010 Distribution Date
"Class XP-2 Components": Each of the Component XX-0-0, Xxxxxxxxx
XX-0-0, Xxxxxxxxx XX-0-0, Component XA-1-7, Component XA-1-8, Component XA-1-9,
Component XA-1-10, Component XX-0-00, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XA-2-3, Component XA-2-4, Component XB-1, Component XB-2, Component
XC-1, Component XC-2, Component XD-1, Component XD-2, Component XE-1, Component
XE-2, Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Component XG-2, Component
XG-3, Component XG-4, Component XH-1, Component XH-2, Component XH-3, Component
XH-4, Component XJ-1, Component XJ-2, Component XJ-3, Component XJ-4, Component
XK-1, Component XK-2, Component XK-3, Component XK-4, Component XL-1 and
Component XL-2.
"Class XP-2 Notional Amount": As of any date of determination prior
to the Class XP-1 Component Crossover Date, the sum of the then Component
Notional Amounts of the Class XP-2 Components that are not also Class XP-1
Components; provided, however, that solely for federal income tax purposes, the
Class XP-2 Notional Amount for any date of determination shall equal the sum of
the then Component Notional Amounts of the Class XP-2 Components. As of any date
of determination after the Class XP-1 Component Crossover Date, the sum of the
then Component Notional Amounts of the Class XP-2 Components.
"Class XP-2 Pass-Through Rate": With respect to the initial
Distribution Date, the Class XP-2 Certificates for the initial Distribution
Date, 1.4752% per annum, and for any subsequent Distribution Date, the weighted
average of the Class XP-2 Strip Rates for the respective Class XP-2 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 XP-2 Strip Rate": With respect to each of the Class XP-2
Components that are not also Class XP-1 Components for any Distribution Date, a
rate per annum equal to (i) for any Distribution Date occurring on or before the
related Class XP-2 Component Crossover Date, (x) the lesser of (I) the Weighted
Average Adjusted Net Mortgage Rate for such Distribution Date and (II) the Class
XP Reference Rate for such Distribution Date minus (y) the Pass-Through Rate for
the Corresponding Certificates (provided that in no event shall any Class XP-2
Strip Rate be less than zero), and (ii) for any Distribution Date occurring
after the related Class XP-2 Component Crossover Date, 0% per annum. With
respect to each of the Class XP-2 Components that are also Class XP-1 Components
for any Distribution Date, a rate per annum equal to (i) for any Distribution
Date occurring on or prior to the Class XP-1 Component Crossover Date, 0% per
annum and (ii) for any Distribution Date occurring after the Class XP-1
Component Crossover Date, the then applicable Class XP-2 Strip Rate described in
the previous sentence for a Class XP-2 Component that is not also a Class XP-1
Component prior to its related Class XP-2 Component Crossover Date.
"Closing Date": April 9, 2003.
"CMSA": The Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, issuers, placement agents and
underwriters generally involved in the commercial mortgage loan securitization
industry, which is the principal such association or organization in the
commercial mortgage loan securitization industry and one of whose principal
purposes is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in one
of the preceding sentences of this definition does not exist, "CMSA" shall be
deemed to refer to such other association or organization as shall be selected
by the Master Servicer and reasonably acceptable to the Trustee, the Special
Servicer and the Directing Certificateholder.
"CMSA Bond Level File": The monthly report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Bond Level File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Trustee.
"CMSA Collateral Summary File": The report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Collateral Summary File" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Trustee.
"CMSA Comparative Financial Status Report": A report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Comparative Financial Status Report" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and is reasonably acceptable to the
Master Servicer and the Special Servicer.
"CMSA Delinquent Loan Status Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Delinquent Loan Status Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Master Servicer and the Special Servicer.
"CMSA Financial File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the
"Financial File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Master Servicer.
"CMSA Historical Liquidation Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Historical Liquidation Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Master Servicer and the Special Servicer.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": A report substantially in the form of, and containing the information
called for in, the downloadable form of the "Historical Loan Modification and
Corrected Mortgage Loan Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Master Servicer and the Special Servicer.
"CMSA Investor Reporting Package": Collectively refers to
(a) the following seven electronic files: (i) CMSA Bond Level File,
(ii) CMSA Collateral Summary File, (iii) CMSA Property File, (iv) CMSA
Loan Periodic Update File, (v) CMSA Loan Setup File, (vi) CMSA Financial
File, and (vii) CMSA Special Servicer Loan File; and
(b) the following nine supplemental reports: (i) CMSA Comparative
Financial Status Report, (ii) CMSA Delinquent Loan Status Report, (iii)
CMSA Historical Loan Modification and Corrected Mortgage Loan Report, (iv)
CMSA Historical Liquidation Report, (v) CMSA Operating Statement Analysis
Report, (vi) CMSA NOI Adjustment Worksheet, (vii) CMSA REO Status Report,
(viii) CMSA Servicer Watch List, and (ix) CMSA Loan Level Reserve - LOC
Report.
"CMSA Loan Level Reserve-LOC Report": The monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Level Reserve LOC Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage securities transactions
generally and is reasonably acceptable to the Master Servicer.
"CMSA Loan Periodic Update File": The monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Loan Periodic Update File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Master Servicer, the Special Servicer and the
Trustee.
"CMSA Loan Setup File": The report substantially in the form of, and
containing the information called for in, the downloadable form of the "Loan
Setup File" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and is reasonably acceptable to the
Master Servicer, the Special Servicer and the Trustee.
"CMSA NOI Adjustment Worksheet": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"NOI Adjustment Worksheet" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is acceptable to the
Master Servicer or the Special Servicer, as applicable, and in any event, shall
present the computations made in accordance with the methodology described in
such form to "normalize" the full year net operating income and debt service
coverage numbers used in the other reports required by this Agreement.
"CMSA Operating Statement Analysis Report": A report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Operating Statement Analysis Report" available as of the Closing
Date on the CMSA Website or in such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed securities
transactions generally and is reasonably acceptable to the Master Servicer.
"CMSA Property File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "Property
File" available as of the Closing Date on the CMSA Website, or such other form
for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and is reasonably acceptable to the
Master Servicer and the Special Servicer.
"CMSA REO Status Report": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "REO
Status Report" available as of the Closing Date on the CMSA Website, or in such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Special Servicer.
"CMSA Servicer Watch List": For any Determination Date, a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Servicer Watch List" available as of the Closing Date
on the CMSA Website, or in such other final form for the presentation of such
information and containing such additional information as may from time to time
be promulgated as recommended by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "Servicer Watch
List" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Special Servicer Loan File": The monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Special Servicer Loan File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Special Servicer.
"CMSA Website": The CMSA's Website located at "xxx.xxxx.xxx" or such
other primary website as the CMSA may establish for dissemination of its report
forms.
"Co-Lender Agreement": Any of the Wellbridge Co-Lender Agreement or
the CBA Co-Lender Agreement.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date, the
period commencing immediately following the Determination Date in the calendar
month preceding the month in which such Distribution Date occurs (or, in the
case of the initial Distribution Date, commencing immediately following the
Cut-off Date) and ending on and including the Determination Date in the calendar
month in which such Distribution Date occurs.
"Commission": The Securities and Exchange Commission.
"Companion Loan": Any of the loans evidenced by the Wellbridge
Senior Companion Notes or a CBA Note.
"Companion Loan Noteholders": Any of the Wellbridge Senior Companion
Loan Noteholders or CBA B Noteholders.
"Compensating Interest Payment": With respect to any Distribution
Date, any payment made by the Master Servicer pursuant to Section 3.19(e) to
cover any Balloon Payment Interest Shortfall and Prepayment Interest Shortfalls
incurred during the related Collection Period.
"Component": Each of Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XA-1-4, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XA-1-8, Component XA-1-9, Component XA-1-10, Component XX-0-00,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-2-3, Component XA-2-4,
Component XB-1, Component XB-2, Component XC-1, Component XC-2, Component XD-1,
Component XD-2, Component XE-1, Component XE-2, Component XX-0, Xxxxxxxxx XX-0,
Xxxxxxxxx XX-0, Component XG-2, Component XG-3, Component XG-4, Component XH-1,
Component XH-2, Component XH-3, Component XH-4, Component XJ-1, Component XJ-2,
Component XJ-3, Component XJ-4, Component XK-1, Component XK-2, Component XK-3,
Component XK-4, Component XL-1, Component XL-2, Component XM, Component XN,
Component XO and Component XP.
"Component Loan": Either the ES Component Mortgage Loan or the SB
Component Mortgage Loan.
"Component Mortgage Loan REMIC": A segregated pool of assets subject
hereto and to be administered hereunder, with respect to which a REMIC election
is to be made, consisting of: (i) the ES Component Mortgage Loan and the SB
Component Mortgage Loan and all payments under and proceeds of such Mortgage
Loans received or receivable after the Cut-off Date (other than payments of
principal, interest and other amounts due and payable on such Mortgage Loans on
or before the Cut-off Date), together with all documents, Escrow Payments and
Reserve Funds delivered or caused to be delivered hereunder by the Mortgage Loan
Seller with respect to such Mortgage Loans, (ii) the rights of the Depositor
under Sections 2, 3, 4, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 of the
Mortgage Loan Purchase and Sale Agreement with respect to such Mortgage Loans
and (iii) such amounts on or with respect to clause (i) as from time to time are
deposited in the Distribution Account, the Certificate Account, the Interest
Reserve Account and the REO Account (if established) and the Excess Liquidation
Proceeds Account (if established).
"Component Mortgage Loan REMIC Distribution Account": As defined in
Section 3.04(c)(iii).
"Component Mortgage Loan REMIC Regular Interest": Any of the
Component Mortgage Loan REMIC Senior Regular Interests and the Component
Mortgage Loan REMIC Subordinate Regular Interests.
"Component Mortgage Loan REMIC Residual Interest": The sole class of
"residual interests" in the Component Mortgage Loan REMIC for purposes of the
REMIC Provisions and evidenced by the Class R-I Certificates.
"Component Mortgage Loan REMIC Senior Regular Interest": Either of
the ES Component Mortgage Loan REMIC Senior Regular Interest and/or SB Component
Mortgage Loan REMIC Senior Regular Interest.
"Component Mortgage Loan REMIC Subordinate Regular Interest": Any of
the ES Component Mortgage Loan Subordinate Components and the SB Component
Mortgage Loan Subordinate Components.
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then REMIC I Principal Balance of
its Corresponding REMIC I Regular Interest.
"Component XA-1-1": One of the 47 components of the Class XC
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-1-1 as of any date of
determination.
"Component XA-1-2": One of the 47 components of the Class XC
Certificates and one of the 21 components of the Class XP-1 Certificates having
a Component Notional Amount equal to the then current REMIC I Principal Balance
of REMIC I Regular Interest LA-1-2 as of any date of determination.
"Component XA-1-3": One of the 47 components of the Class XC
Certificates and one of the 40 components of the Class XP-2 Certificates having
a Component Notional Amount equal to the then current REMIC I Principal Balance
of REMIC I Regular Interest LA-1-3 as of any date of determination.
"Component XA-1-4": One of the 47 components of the Class XC
Certificates and one of the 21 components of the Class XP-1 Certificates having
a Component Notional Amount equal to the then current REMIC I Principal Balance
of REMIC I Regular Interest LA-1-4 as of any date of determination.
"Component XA-1-5": One of the 47 components of the Class XC
Certificates and one of the 40 components of the Class XP-2 Certificates having
a Component Notional Amount equal to the then current REMIC I Principal Balance
of REMIC I Regular Interest LA-1-5 as of any date of determination.
"Component XA-1-6": One of the 47 components of the Class XC
Certificates, one of the 21 components of the Class XP-1 Certificates and one of
the 40 components of the Class XP-2 Certificates having a Component Notional
Amount equal to the then current REMIC I Principal Balance of REMIC I Regular
Interest LA-1-6 as of any date of determination.
"Component XA-1-7": One of the 47 components of the Class XC
Certificates and one of the 40 components of the Class XP-2 Certificates having
a Component Notional Amount equal to the then current REMIC I Principal Balance
of REMIC I Regular Interest LA-1-7 as of any date of determination.
"Component XA-1-8": One of the 47 components of the Class XC
Certificates, one of the 21 components of the Class XP-1 Certificates and one of
the 40 components of the Class XP-2 Certificates having a Component Notional
Amount equal to the then current REMIC I Principal Balance of REMIC I Regular
Interest LA-1-8 as of any date of determination.
"Component XA-1-9": One of the 47 components of the Class XC
Certificates and one of the 40 components of the Class XP-2 Certificates having
a Component Notional Amount equal to the then current REMIC I Principal Balance
of REMIC I Regular Interest LA-1-9 as of any date of determination.
"Component XA-1-10": One of the 47 components of the Class XC
Certificates, one of the 21 components of the Class XP-1 Certificates and one of
the 40 components of the Class XP-2 Certificates having a Component Notional
Amount equal to the then current REMIC I Principal Balance of REMIC I Regular
Interest LA-1-10 as of any date of determination.
"Component XA-1-11": One of the 47 components of the Class XC
Certificates and one of the 40 components of the Class XP-2 Certificates having
a Component Notional Amount equal to the then current REMIC I Principal Balance
of REMIC I Regular Interest LA-1-11 as of any date of determination.
"Component XA-2-1": One of the 47 components of the Class XC
Certificates, one of the 21 components of the Class XP-1 Certificates and one of
the 40 components of the Class XP-2 Certificates having a Component Notional
Amount equal to the then current REMIC I Principal Balance of REMIC I Regular
Interest LA-2-1 as of any date of determination.
"Component XA-2-2": One of the 47 components of the Class XC
Certificates and one of the 40 components of the Class XP-2 Certificates having
a Component Notional Amount equal to the then current REMIC I Principal Balance
of REMIC I Regular Interest LA-2-2 as of any date of determination.
"Component XA-2-3": One of the 47 components of the Class XC
Certificates, one of the 21 components of the Class XP-1 Certificates and one of
the 40 components of the Class XP-2 Certificates having a Component Notional
Amount equal to the then current REMIC I Principal Balance of REMIC I Regular
Interest LA-2-3 as of any date of determination.
"Component XA-2-4": One of the 47 components of the Class XC
Certificates and one of the 40 components of the Class XP-2 Certificates having
a Component Notional Amount equal to the then current REMIC I Principal Balance
of REMIC I Regular Interest LA-2-4 as of any date of determination.
"Component XB-1": One of the 47 components of the Class XC
Certificates, one of the 21 components of the Class XP-1 Certificates and one of
the 40 components of the Class XP-2 Certificates having a Component Notional
Amount equal to the then current REMIC I Principal Balance of REMIC I Regular
Interest LB-1 as of any date of determination.
"Component XB-2": One of the 47 components of the Class XC
Certificates and one of the 40 components of the Class XP-2 Certificates having
a Component Notional Amount equal to the then current REMIC I Principal Balance
of REMIC I Regular Interest LB-2 as of any date of determination.
"Component XC-1": One of the 47 components of the Class XC
Certificates, one of the 21 components of the Class XP-1 Certificates and one of
the 40 components of the Class XP-2 Certificates having a Component Notional
Amount equal to the then current REMIC I Principal Balance of REMIC I Regular
Interest LC-1 as of any date of determination.
"Component XC-2": One of the 47 components of the Class XC
Certificates and one of the 40 components of the Class XP-2 Certificates having
a Component Notional Amount equal to the then current REMIC I Principal Balance
of REMIC I Regular Interest LC-2 as of any date of determination.
"Component XD-1": One of the 47 components of the Class XC
Certificates, one of the 21 components of the Class XP-1 Certificates and one of
the 40 components of the Class XP-2 Certificates having a Component Notional
Amount equal to the then current REMIC I Principal Balance of REMIC I Regular
Interest LD-1 as of any date of determination.
"Component XD-2": One of the 47 components of the Class XC
Certificates and one of the 40 components of the Class XP-2 Certificates having
a Component Notional Amount equal to the then current REMIC I Principal Balance
of REMIC I Regular Interest LD-2 as of any date of determination.
"Component XE-1": One of the 47 components of the Class XC
Certificates, one of the 21 components of the Class XP-1 Certificates and one of
the 40 components of the Class XP-2 Certificates having a Component Notional
Amount equal to the then current REMIC I Principal Balance of REMIC I Regular
Interest LE-1 as of any date of determination.
"Component XE-2": One of the 47 components of the Class XC
Certificates and one of the 40 components of the Class XP-2 Certificates having
a Component Notional Amount equal to the then current REMIC I Principal Balance
of REMIC I Regular Interest LE-2 as of any date of determination.
"Component XF-1": One of the 47 components of the Class XC
Certificates, one of the 21 components of the Class XP-1 Certificates and one of
the 40 components of the Class XP-2 Certificates having a Component Notional
Amount equal to the then current REMIC I Principal Balance of REMIC I Regular
Interest LF-1 as of any date of determination.
"Component XF-2": One of the 47 components of the Class XC
Certificates and one of the 40 components of the Class XP-2 Certificates having
a Component Notional Amount equal to the then current REMIC I Principal Balance
of REMIC I Regular Interest LF-2 as of any date of determination.
"Component XG-1": One of the 47 components of the Class XC
Certificates, one of the 21 components of the Class XP-1 Certificates and one of
the 40 components of the Class XP-2 Certificates having a Component Notional
Amount equal to the then current REMIC I Principal Balance of REMIC I Regular
Interest LG-1 as of any date of determination.
"Component XG-2": One of the 47 components of the Class XC
Certificates and one of the 40 components of the Class XP-2 Certificates having
a Component Notional Amount equal to the then current REMIC I Principal Balance
of REMIC I Regular Interest LG-2 as of any date of determination.
"Component XG-3": One of the 47 components of the Class XC
Certificates, one of the 21 components of the Class XP-1 Certificates and one of
the 40 components of the Class XP-2 Certificates having a Component Notional
Amount equal to the then current REMIC I Principal Balance of REMIC I Regular
Interest LG-3 as of any date of determination.
"Component XG-4": One of the 47 components of the Class XC
Certificates and one of the 40 components of the Class XP-2 Certificates having
a Component Notional Amount equal to the then current REMIC I Principal Balance
of REMIC I Regular Interest LG-4 as of any date of determination.
"Component XH-1": One of the 47 components of the Class XC
Certificates, one of the 21 components of the Class XP-1 Certificates and one of
the 40 components of the Class XP-2 Certificates having a Component Notional
Amount equal to the then current REMIC I Principal Balance of REMIC I Regular
Interest LH-1 as of any date of determination.
"Component XH-2": One of the 47 components of the Class XC
Certificates and one of the 40 components of the Class XP-2 Certificates having
a Component Notional Amount equal to the then current REMIC I Principal Balance
of REMIC I Regular Interest LH-2 as of any date of determination.
"Component XH-3": One of the 47 components of the Class XC
Certificates, one of the 21 components of the Class XP-1 Certificates and one of
the 40 components of the Class XP-2 Certificates having a Component Notional
Amount equal to the then current REMIC I Principal Balance of REMIC I Regular
Interest LH-3 as of any date of determination.
"Component XH-4": One of the 47 components of the Class XC
Certificates and one of the 40 components of the Class XP-2 Certificates having
a Component Notional Amount equal to the then current REMIC I Principal Balance
of REMIC I Regular Interest LH-4 as of any date of determination.
"Component XJ-1": One of the 47 components of the Class XC
Certificates, one of the 21 components of the Class XP-1 Certificates and one of
the 40 components of the Class XP-2 Certificates having a Component Notional
Amount equal to the then current REMIC I Principal Balance of REMIC I Regular
Interest LJ-1 as of any date of determination.
"Component XJ-2": One of the 47 components of the Class XC
Certificates and one of the 40 components of the Class XP-2 Certificates having
a Component Notional Amount equal to the then current REMIC I Principal Balance
of REMIC I Regular Interest LJ-2 as of any date of determination.
"Component XJ-3": One of the 47 components of the Class XC
Certificates, one of the 21 components of the Class XP-1 Certificates and one of
the 40 components of the Class XP-2 Certificates having a Component Notional
Amount equal to the then current REMIC I Principal Balance of REMIC I Regular
Interest LJ-3 as of any date of determination.
"Component XJ-4": One of the 47 components of the Class XC
Certificates and one of the 40 components of the Class XP-2 Certificates having
a Component Notional Amount equal to the then current REMIC I Principal Balance
of REMIC I Regular Interest LJ-4 as of any date of determination.
"Component XK-1": One of the 47 components of the Class XC
Certificates, one of the 21 components of the Class XP-1 Certificates and one of
the 40 components of the Class XP-2 Certificates having a Component Notional
Amount equal to the then current REMIC I Principal Balance of REMIC I Regular
Interest LK-1 as of any date of determination.
"Component XK-2": One of the 47 components of the Class XC
Certificates and one of the 40 components of the Class XP-2 Certificates having
a Component Notional Amount equal to the then current REMIC I Principal Balance
of REMIC I Regular Interest LK-2 as of any date of determination.
"Component XK-3": One of the 47 components of the Class XC
Certificates, one of the 21 components of the Class XP-1 Certificates and one of
the 40 components of the Class XP-2 Certificates having a Component Notional
Amount equal to the then current REMIC I Principal Balance of REMIC I Regular
Interest LK-3 as of any date of determination.
"Component XK-4": One of the 47 components of the Class XC
Certificates and one of the 40 components of the Class XP-2 Certificates having
a Component Notional Amount equal to the then current REMIC I Principal Balance
of REMIC I Regular Interest LK-4 as of any date of determination.
"Component XL-1": One of the 47 components of the Class XC
Certificates, one of the 21 components of the Class XP-1 Certificates and one of
the 40 components of the Class XP-2 Certificates having a Component Notional
Amount equal to the then current REMIC I Principal Balance of REMIC I Regular
Interest LL-1 as of any date of determination.
"Component XL-2": One of the 47 components of the Class XC
Certificates and one of the 40 components of the Class XP-2 Certificates having
a Component Notional Amount equal to the then current REMIC I Principal Balance
of REMIC I Regular Interest LL-2 as of any date of determination.
"Component XM": One of the 47 components of the Class XC
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LM as of any date of
determination.
"Component XN": One of the 47 components of the Class XC
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LN as of any date of
determination.
"Component XO": One of the 47 components of the Class XC
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LO as of any date of
determination.
"Component XP": One of the 47 components of the Class XC
Certificates and having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LP as of any date of
determination.
"Condemnation Proceeds": All cash amounts received by the Master
Servicer or the Special Servicer in connection with the taking of all or a part
of a Mortgaged Property by exercise of the power of eminent domain or
condemnation, exclusive of any portion thereof required to be released to the
related Mortgagor or any other third-party in accordance with applicable law
and/or the terms and conditions of the related Loan documents or any other
applicable document.
"Confidential Information": As defined in Section 3.24.
"Controlling Class": As of any date of determination, the
outstanding Class of Sequential Pay Certificates with the lowest Payment
Priority (the Class A Certificates being treated as a single Class for this
purpose) that has a then outstanding Class Principal Balance at least equal to
25% of the Initial Class Principal Balance thereof (or, if no Class of
Sequential Pay Certificates has a Class Principal Balance at least equal to 25%
of the Initial Class Principal Balance thereof, then the "Controlling Class"
shall be the outstanding Class of Sequential Pay Certificates with the then
largest outstanding Class Principal Balance).
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified to
the Trustee from time to time by such Holder (or Certificate Owner).
"Controlling Class Optionholder": The Purchase Option held by the
Majority Certificateholder of the Controlling Class pursuant to Section 3.18(c).
"Controlling Holder": Each of the ES Controlling Holder, the SB
Controlling Holder and the Wellbridge Controlling Holder. Each such initial
Controlling Holder and, if applicable, the related Operating Advisor shall be
set forth on Schedule V hereto.
"Corporate Trust Office": The principal corporate trust office of
the Trustee, for purposes of Certificate transfer services, at the date of the
execution of this Agreement is located at (i) with respect to maintenance of the
Certificate Register and the transfer and exchange of Certificates, the office
of the Trustee located at 000 Xxxxx XxXxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000, Attention: Asset Backed Securities Trust Services Group--Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series
2003-1, and with respect to any successor Trustee, the principal office thereof
as designated in writing to the Depositor.
"Corrected Loan": Any Loan that had been a Specially Serviced Loan
but as to which all Servicing Transfer Events have ceased to exist other than in
connection with a sale pursuant to Section 3.18.
"Corresponding Certificate": As defined in the Preliminary Statement
with respect to any Corresponding Component or any Corresponding REMIC I Regular
Interest.
"Corresponding Component": As defined in the Preliminary Statement
with respect to any Corresponding Certificate or any Corresponding REMIC I
Regular Interest.
"Corresponding ES Component Mortgage Loan Subordinate Component" and
"Corresponding Class of Class ES Certificates": The related ES Component
Mortgage Loan Subordinate Components and Class of Class ES Certificates set
forth below:
ES Component Corresponding
Mortgage Loan Class of
Subordinate Component Class ES Certificates
--------------------- ---------------------
ES-A Class ES-A
ES-B Class ES-B
ES-C Class ES-C
ES-D Class ES-D
ES-E Class ES-E
ES-F Class ES-F
ES-G Class ES-G
ES-H Class ES-H
"Corresponding REMIC I Regular Interest": As defined in the
Preliminary Statement with respect to any Corresponding Certificate or any
Corresponding Component.
"Corresponding SB Component Mortgage Loan Subordinate Component" and
"Corresponding Class of Class SB Certificates": The related SB Component
Mortgage Loan Subordinate Components and Class of Class SB Certificates set
forth below:
SB Component Corresponding
Mortgage Loan Class of
Subordinate Component Class SB Certificates
--------------------- ---------------------
SB-A Class SB-A
SB-B Class SB-B
SB-C Class SB-C
SB-D Class SB-D
SB-E Class SB-E
"Covered Risks": As defined in Section 3.07(a).
"CPR": As defined in the Base Prospectus.
"Cross-Collateralized Group": Any group of Loans that is
cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Mortgage Loan": Any Loan that is, by its
terms, cross-defaulted and cross-collateralized with any other Loan.
"Current Principal Distribution Amount": With respect to any
Distribution Date, an amount (calculated in accordance with Section 1.02) equal
to the aggregate of, without duplication (excluding, (i) except with respect to
clause (f) below, any amounts received in respect of the ES Component Mortgage
Loan, (ii) except with respect to clause (g) below, any amounts received in
respect of the SB Component Mortgage Loan and (iii) any amounts received in
respect of the Wellbridge Note B Loan):
(a) the principal portions of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments due or deemed due, as
the case may be, in respect of the Mortgage Loans and any REO Loans for
their respective Due Dates occurring during the related Collection Period;
(b) all Principal Prepayments received on the Mortgage Loans during
the related Collection Period;
(c) with respect to any Balloon Loan that is included in the Trust
Fund, as to which the related Stated Maturity Date occurred during or
prior to the related Collection Period, any payment of principal
(exclusive of any Principal Prepayment and any amount described in
subclause (d) below) that was made by or on behalf of the related
Mortgagor during the related Collection Period, net of any portion of such
payment that represents a recovery of the principal portion of any Monthly
Payment (other than a Balloon Payment) due, or the principal portion of
any Assumed Monthly Payment deemed due, in respect of such Balloon Loan on
a Due Date during or prior to the related Collection Period and not
previously recovered;
(d) all Liquidation Proceeds (net of Liquidation Expenses) and
Insurance Proceeds received on or in respect of the Mortgage Loans during
the related Collection Period that were identified and applied by the
Master Servicer as recoveries of principal thereof, in each case net of
any portion of such amounts that represents a recovery of the principal
portion of any Monthly Payment (other than a Balloon Payment) due, or of
the principal portion of any Assumed Monthly Payment deemed due, in
respect of any such Mortgage Loan on a Due Date during or prior to the
related Collection Period and not previously recovered;
(e) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance Proceeds and REO Revenues received on or in respect of any REO
Properties during the related Collection Period that were identified and
applied by the Master Servicer as recoveries of principal of the related
REO Loans, in each case net of any portion of such amounts that represents
a recovery of the principal portion of any Monthly Payment (other than a
Balloon Payment) due, or of the principal portion of any Assumed Monthly
Payment deemed due, in respect of any such REO Loan or the predecessor
Mortgage Loan on a Due Date during or prior to the related Collection
Period and not previously recovered;
(f) the ES Senior Component Principal Distribution Amount; and
(g) the SB Senior Component Principal Distribution Amount.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, the Mortgage Loan Seller or an Affiliate of
either.
"Cut-off Date": April 1, 2003.
"Cut-off Date Balance": With respect to any Majority Mortgage Loan
or Companion Loan, the outstanding principal balance of such Mortgage Loan as of
the Cut-off Date, net of all unpaid payments of principal due in respect thereof
on or before such date. With respect to the ES Component Mortgage Loan, the
outstanding principal balance of the ES Component Mortgage Loan Senior Component
as of the Cut-off Date, net of all unpaid payments of principal due in respect
thereof on or before such date. With respect to the SB Component Mortgage Loan,
the outstanding principal balance of the SB Component Mortgage Loan Senior
Component as of the Cut-off Date, net of all unpaid payments of principal due in
respect thereof on or before such date.
"Debt Service Coverage Ratio": With respect to any Loan, as of any
date of determination, and calculated without regard to any
cross-collateralization feature of such Loan, the ratio of (x) the Net Cash Flow
(before payment of any debt service on such Loan) generated by the related
Mortgaged Property or Mortgaged Properties during the most recently ended period
of not more than twelve (12) months or less than three (3) months for which
financial statements (whether or not audited) have been received by or on behalf
of the Mortgage Loan Seller (prior to the Closing Date) or the Master Servicer
or the Special Servicer (following the Closing Date), to (y) the product of the
amount of the Monthly Payment in effect for such Loan as of such date of
determination, multiplied by the number of months represented in the financial
statements. The Master Servicer may, in accordance with CMSA reporting
standards, report Net Cash Flow with respect to each Mortgaged Property where
one or more Loans are secured by multiple Mortgaged Properties; provided,
however, that for purposes of determining Debt Service Coverage Ratio
compliance, calculations shall be made at the Loan level.
"Default Charges": Any Default Interest and/or late payment charges
that are paid or payable, as the context may require, in respect of any Loan or
REO Loan
"Default Interest": With respect to any Loan (or successor REO
Loan), any amounts collected thereon, other than late payment charges or
Prepayment Premiums that represent interest in excess of interest accrued on the
principal balance of such Loan (or REO Loan) at the related Mortgage Rate, such
excess interest arising out of a default under such Mortgage Loan.
"Defaulted Mortgage Loan": A Mortgage Loan or Companion Loan (i)
that is delinquent sixty (60) days or more in respect to a Monthly Payment (not
including the Balloon Payment) or (ii) is delinquent in respect of its Balloon
Payment unless the Master Servicer has, on or prior to the due date of such
Balloon Payment, received written evidence from an institutional lender of such
lender's binding commitment to refinance such Mortgage Loan within sixty (60)
days after the due date of such Balloon Payment (provided that if such
refinancing does not occur during such time specified in the commitment, the
related Mortgage Loan will immediately become a Defaulted Mortgage Loan), in
either case such delinquency to be determined without giving effect to any grace
period permitted by the related Mortgage or Mortgage Note and without regard to
any acceleration of payments under the related Mortgage and Mortgage Note, or
(iii) as to which the Master Servicer or Special Servicer has, by written notice
to the related Mortgagor, accelerated the maturity of the indebtedness evidenced
by the related Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defective Mortgage Loan": shall mean any Mortgage Loan as to which
there exists a Material Breach or a Material Document Defect that was not cured
in all material respects.
"Definitive Certificate": As defined in Section 5.03(a).
"Deleted Mortgage Loan": shall mean a Defective Mortgage Loan that
is repurchased from the Trust or replaced with one or more Replacement Mortgage
Loans, in either case as contemplated by Section 2.03.
"Denomination": As defined in Section 5.01(a).
"Depositor": Banc of America Commercial Mortgage Inc., 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
fifth (5th) Business Day before such Distribution Date.
"Determination Information": As defined in Section 3.18(b).
"Directing Certificateholder": The Controlling Class
Certificateholder (or its designee) selected by the Majority Certificateholder
of the Controlling Class, as certified by the Trustee 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, by Certificate Principal Balance, that a
Directing Certificateholder is no longer designated, the Controlling Class
Certificateholder that owns the largest aggregate Certificate Principal Balance
of the Controlling Class will be the Directing Certificateholder. The initial
Directing Certificateholder is First Chicago Capital Corporation.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale to
customers (other than the sale of an REO Property pursuant to Section 3.18, the
performance of any construction work thereon or any use of such REO Property in
a trade or business conducted by REMIC I or the Component Mortgage Loan REMIC
other than through an Independent Contractor; provided, however, that the
Special Servicer (or any Sub-Servicer on behalf of the Special Servicer) shall
not be considered to Directly Operate an REO Property solely because the Special
Servicer (or any Sub-Servicer on behalf of the Special Servicer) establishes
rental terms, chooses tenants, enters into or renews leases, deals with taxes
and insurance, or makes decisions as to, or funds, repairs or capital
expenditures with respect to such REO Property (including, without limitation,
construction activity to effect repairs or in conjunction with leasing
activity).
"Disqualified Non-U.S. Persons": With respect to a Class R-I or
Class R-II Certificate, any Non-U.S. Person or agent thereof other than (i) a
Non-U.S. Person that holds the Class R-I or Class R-II Certificate in connection
with the conduct of a trade or business within the United States and has
furnished the transferor and the Certificate Registrar with an effective IRS
Form W-8ECI (or successor form) or (ii) a Non-U.S. Person that has delivered to
both the transferor and the Certificate Registrar an opinion of a nationally
recognized tax counsel to the effect that the transfer of the Class R-I or Class
R-II Certificate to it is in accordance with the requirements of the Code and
the regulations promulgated thereunder and that such transfer of the Class R-I
or Class R-II Certificate will not be disregarded for federal income tax
purposes.
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for Xxxxxxx Mac, a majority of its board of directors is not
selected by any such governmental unit), (ii) a foreign government,
international organization, or any agency or instrumentality of either of the
foregoing, (iii) any organization (except certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code or (v)
any other Person so designated by the REMIC Administrator based upon an Opinion
of Counsel (provided to the Trustee by such Person at its expense) that the
holding of an Ownership Interest in a Residual Certificate by such Person may
cause the Trust or any Person having an Ownership Interest in any Class of
Certificates, other than such Person, to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a 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": For any Distribution Date with
respect to any Class of REMIC II Regular Certificates, any Class of Class ES
Certificates, any Class of Class SB Certificates and any Class of Class WB
Certificates, the Accrued Certificate Interest in respect of such Class of
Certificates for such Distribution Date, reduced (to not less than zero) by that
portion, if any, of the Net Aggregate Prepayment Interest Shortfall for such
Distribution Date allocated to such Class of Certificates as set forth below.
Except with respect to Net Aggregate Prepayment Interest Shortfalls allocated to
any Class of Class ES Certificates, Class SB Certificates and Class WB
Certificates as described below, the Net Aggregate Prepayment Interest
Shortfall, if any, for each Distribution Date shall be allocated, first, to the
Class P, Class O, Class N, Class M, Class L, Class K, Class J, Class H, Class G,
Class F, Class E, Class D, Class C and Class B Certificates, in that order, in
each case up to an amount equal to the lesser of any remaining unallocated
portion of such Net Aggregate Prepayment Interest Shortfall and any Accrued
Certificate Interest in respect of the particular Class of REMIC II Regular
Certificates for such Distribution Date; and, thereafter, if and to the extent
that any portion of such Net Aggregate Prepayment Interest Shortfall remains
unallocated, pro rata among the Class A-1 Certificates, Class A-2 Certificates,
Class XC Certificates, Class XP-1 Certificates and Class XP-2 Certificates, in
accordance with the respective amounts of Accrued Certificate Interest for each
such Class of Certificates for such Distribution Date. The Net Aggregate
Prepayment Interest Shortfall for the ES Component Mortgage Loan, if any, for
each Distribution Date shall be allocated, first, to the Corresponding Class ES
Certificates in reverse sequential alphabetical order, up to an amount equal to
the lesser of any such Net Aggregate Prepayment Interest Shortfall and any
Accrued Certificate Interest in respect of the particular Class of Class ES
Certificates for such Distribution Date; and, thereafter, if and to the extent
that any portion of such Net Aggregate Prepayment Interest Shortfall remains
unallocated, among the REMIC II Regular Certificates as described above. The Net
Aggregate Prepayment Interest Shortfall for the SB Component Mortgage Loan, if
any, for each Distribution Date shall be allocated, first, to the Corresponding
Class SB Certificates in reverse sequential alphabetical order, up to an amount
equal to the lesser of any such Net Aggregate Prepayment Interest Shortfall and
any Accrued Certificate Interest in respect of the particular Class of Class SB
Certificates for such Distribution Date; and, thereafter, if and to the extent
that any portion of such Net Aggregate Prepayment Interest Shortfall remains
unallocated, among the REMIC II Regular Certificates as described above. The Net
Aggregate Prepayment Interest Shortfall for the Wellbridge Note B Loan, if any,
for any Distribution Date shall be allocated to the Class WB Certificate in
reverse sequential alphabetical order up to an amount equal to the lesser of any
Net Aggregate Prepayment Interest Shortfall and any Accrued Certificate Interest
in respect of the particular Class of Class WB Certificates for such
Distribution Date.
"Distributable ES Component Mortgage Loan Certificate Interest": In
respect of the ES Component Mortgage Loan Components an amount equal to the ES
Component Mortgage Loan Accrued Component Interest in respect of each ES
Component Mortgage Loan Component reduced by such component's allocable share of
any Net Aggregate Prepayment Interest Shortfall for such Distribution Date.
"Distributable SB Component Mortgage Loan Certificate Interest": In
respect of the SB Component Mortgage Loan Components an amount equal to the SB
Component Mortgage Loan Accrued Component Interest in respect of each SB
Component Mortgage Loan Component reduced by such component's allocable share of
any Net Aggregate Prepayment Interest Shortfall for such Distribution Date.
"Distribution Account": The segregated account or accounts created
and maintained by the Trustee pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled "LaSalle Bank National Association,
as Trustee, in trust for the registered holders of Banc of America Commercial
Mortgage Inc. Commercial Mortgage Pass-Through Certificates, Series 2003-1,
Distribution Account".
"Distribution Date": The 11th day of any month, or if such 11th day
is not a Business Day, the Business Day immediately following, commencing in May
2003.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": With respect to any Mortgage Loan, any document
required to be part of the related Mortgage File that has not been properly
executed, is missing, contains information that does not conform in any material
respect with the corresponding information set forth in the Mortgage Loan
Schedule (and the terms of such document have not been modified by written
instrument contained in the related Mortgage File), or does not appear to be
regular on its face.
"DTC": As defined in Section 5.03(d).
"Due Date": With respect to (i) any Loan on or prior to its Stated
Maturity Date, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment on such Loan is scheduled to be first due; (ii) any
Loan after its Stated Maturity Date, the day of the month set forth in the
related Mortgage Note on which each Monthly Payment on such 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
Loan had been scheduled to be first due.
"Eligible Account": Any of (i) an account maintained with a federal
or state chartered depository institution or trust company, including, without
limitation, the Trustee (if it meets the following rating criteria), the
long-term unsecured debt obligations of which are rated no less than "AA-" by
Fitch, and "AA-" by S&P (or "A-" by S&P if such depository's short-term
unsecured debt rating is no less than "A-1" by S&P) (if the deposits are to be
held in the account for more than 30 days) (or if such account is maintained
with PNC Bank, National Association, rated no less that "A" by Fitch and with
respect to S&P meets the requirements set forth in clause (i)), or the
short-term unsecured debt obligations of which are rated no less than "F-1" by
Fitch and "A-1" by S&P (if the deposits are to be held in the account for 30
days or less), in each case, at any time funds are on deposit therein, (ii) a
segregated trust account or accounts maintained with the corporate trust
department of a federally chartered depository institution or trust company,
including, without limitation, the Trustee, acting in its fiduciary capacity and
subject to the regulations regarding fiduciary funds on deposit therein under 12
C.F.R. ss.9.10(b) that has a combined capital surplus of at least $50,000,000,
(iii) a segregated trust account or accounts maintained with the corporate trust
department of a state chartered depository institution or trust company,
including, without limitation, the Trustee, acting in its fiduciary capacity and
subject to regulations regarding fiduciary funds on deposit therein
substantially similar to 12 C.F.R. ss.9.10(b) that has a combined capital
surplus of at least $50,000,000, or (iv) any other account which would not
result in the downgrade, qualification (if applicable) or withdrawal of the
rating then assigned by either Rating Agency to any Class of Certificates (as
confirmed in writing by each Rating Agency).
"Emergency Advance": Any Servicing Advance, whether or not it is a
Servicing Advance that, pursuant hereto, the Special Servicer is required to
make or to request the Master Servicer to make, that must be made within 5
Business Days of the Special Servicer's becoming aware that it must be made in
order to avoid any material penalty, any material harm to a Mortgaged Property
or any other material adverse consequence to the Trust Fund.
"Environmental Insurance Policy": With respect to any Mortgaged
Property or REO Property, any insurance policy covering pollution conditions
and/or other environmental conditions in effect with respect to such Mortgaged
Property or REO Property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Restricted Certificate": Any Class SB-D, Class SB-E, Class J,
Class K, Class L, Class M, Class N, Class O and Class P 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
transfer of such Certificate to a Plan.
"ES Component Mortgage Loan": The Mortgage Loan identified on the
Mortgage Loan Schedule as Loan No. 56967.
"ES Component Mortgage Loan Accrued Component Interest": In respect
of the ES Component Mortgage Loan Components for each Distribution Date an
amount equal to one calendar month's interest at the applicable interest rate
for each ES Component Mortgage Loan Component which in the case of the ES Senior
Component is equal to 4.95749893154882% per annum and in the case of the ES
Component Mortgage Loan ES-A Component, the ES Component Mortgage Loan ES-B
Component, the ES Component Mortgage Loan ES-C Component, the ES Component
Mortgage Loan ES-D Component, the ES Component Mortgage Loan ES-E Component, the
ES Component Mortgage Loan ES-F Component, the ES Component Mortgage Loan ES-G
Component, and the ES Component Mortgage Loan ES-H Component, respectively, is
equal to the Pass-Through Rate of the Class ES-A, Class ES-B, Class ES-C, Class
ES-D, Class ES-E, Class ES-F, Class ES-G and Class ES-H Certificates,
respectively.
"ES Component Mortgage Loan Available Distribution Amount": With
respect to the ES Component Mortgage Loan and any Distribution Date, an amount
equal to (a) the balance on deposit in the Distribution Account as of 11:30 a.m.
(New York City time) on such Distribution Date (or such later time on such date
as of which distributions are made on the Certificates) relating to the ES
Component Mortgage Loan, any P&I Advances made by the Master Servicer, the
Trustee or the Fiscal Agent to cover uncollected Monthly Payments due and/or
Assumed Monthly Payments deemed due during the related Collection Period with
respect to the ES Component Mortgage Loan, and any Compensating Interest
Payments made by the Master Servicer to cover Prepayment Interest Shortfalls
incurred during the related Collection Period with respect to the ES Component
Mortgage Loan, and for the Distribution Date occurring in each March, the
related Withheld Amounts remitted to the Distribution Account pursuant to
Section 4.05 with respect to the ES Component Mortgage Loan, net of (b) any
portion of the amounts described in clause (a) of this definition that
represents one or more of the following: (i) collected Monthly Payments with
respect to the ES Component Mortgage Loan that are due on a Due Date following
the end of the related Collection Period, (ii) any payments of principal
(including, without limitation, Principal Prepayments) and interest, Liquidation
Proceeds and Insurance Proceeds received after the end of the related Collection
Period with respect to the ES Component Mortgage Loan, (iii) Prepayment
Premiums, (iv) any amounts payable or reimbursable to any Person from the
Distribution Account pursuant to any of clauses (ii) through (vi) of Section
3.05(b), (v) any amounts deposited in the Distribution Account in error, (vi)
any amounts payable or reimbursable to any Person from the Certificate Account
pursuant to clauses (ii) through (xx) of Section 3.05(a), and (vii) with respect
to the ES Component Mortgage Loan and any Distribution Date relating to the one
(1) month period preceding the Distribution Date in each February (and in any
January of a year which is not a leap year), an amount equal to the related
Withheld Amount pursuant to Section 4.05; and (c) provided that the ES Component
Mortgage Loan Available Distribution Amount for the Final Distribution Date
shall be calculated without regard to clauses (b)(i) and (b)(ii) of this
definition.
"ES Component Mortgage Loan Component": Each of the ES Component
Mortgage Loan Senior Component, the ES Component Mortgage Loan ES-A Component,
the ES Component Mortgage Loan ES-B Component, the ES Component Mortgage Loan
ES-C Component, the ES Component Mortgage Loan ES-D Component, the ES Component
Mortgage Loan ES-E Component, the ES Component Mortgage Loan ES-F Component, the
ES Component Mortgage Loan ES-G Component, and the ES Component Mortgage Loan
ES-H Component.
"ES Component Mortgage Loan Component Principal Entitlement": In the
absence of a monetary event of default or other material event of default under
the ES Component Mortgage Loan principal will be paid on the ES Component
Mortgage Loan Senior Component and the ES Component Mortgage Loan ES-A
Component, ES Component Mortgage Loan ES-B Component, ES Component Mortgage Loan
ES-C Component, ES Component Mortgage Loan ES-D Component, the ES Component
Mortgage Loan ES-E Component, the ES Component Mortgage Loan ES-F Component, the
ES Component Mortgage Loan ES-G Component and ES Component Mortgage Loan ES-H
Component, pro rata (in accordance with their respective outstanding principal
balances). If any of the events of default described in the prior sentence
exists with respect to the ES Component Mortgage Loan, principal will be paid
first to the ES Component Mortgage Loan Senior Component until its outstanding
principal balance is reduced to zero and then sequentially to each of the ES
Component Mortgage Loan ES-A Component, ES Component Mortgage Loan ES-B
Component, ES Component Mortgage Loan ES-C Component, ES Component Mortgage Loan
ES-D Component, the ES Component Mortgage Loan ES-E Component, the ES Component
Mortgage Loan ES-F Component, the ES Component Mortgage Loan ES-G Component and
ES Component Mortgage Loan ES-H Component until the principal balance of each
such Component is reduced to zero. Accordingly, the "ES Component Mortgage Loan
Component Principal Entitlement" with respect to any ES Component is (a) prior
to the occurrence of any event of monetary default or other material event of
default under the ES Component Mortgage Loan, an amount equal to such ES
Component's pro rata share of the ES Component Mortgage Loan Principal
Distribution Amount and (b) after the occurrence of any of event of monetary
default or other material event of default under the ES Component Mortgage Loan,
an amount equal to the lesser of (i) the outstanding principal balance of such
ES Component and (ii) the portion of the Class ES Component Mortgage Loan
Principal Distribution Amount remaining after giving effect to all distributions
of higher priority on such Distribution Date.
"ES Component Mortgage Loan Current Principal Distribution Amount":
For any Distribution Date will, in general, equal the aggregate of the
following:
(i) the principal portions of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments due or deemed
due, as the case may be, in respect of the ES Component Mortgage
Loan for the related Due Date occurring during the related
Collection Period;
(ii) all Principal Prepayments received on the ES Component
Mortgage Loan during the related Collection Period;
(iii) with respect to the ES Component Mortgage Loan if its
Stated Maturity Date occurred during or prior to the related
Collection Period, any payment of principal (exclusive of any
Principal Prepayment and any amount described in clause (iv) below)
that was made by or on behalf of the related Mortgagor during the
related Collection Period, net of any portion of such payment that
represents a recovery of the principal portion of any Monthly
Payment (other than a Balloon Payment) due, or the principal portion
of any Assumed Monthly Payment deemed due, in respect of the ES
Component Mortgage Loan on a Due Date during or prior to the related
Collection Period and not previously recovered;
(iv) all Liquidation Proceeds (net of Liquidation Expenses)
and Insurance Proceeds received on or in respect of the ES Component
Mortgage Loan during the related Collection Period that were
identified and applied by the Master Servicer as recoveries of
principal thereof, in each case net of any portion of such amounts
that represents a recovery of the principal portion of any Monthly
Payment (other than a Balloon Payment) due, or the principal portion
of any Assumed Monthly Payment deemed due, in respect of the ES
Component Mortgage Loan on a Due Date during or prior to the related
Collection Period and not previously recovered; and
(v) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance Proceeds and REO Revenues received on or in respect of the
ES Component Mortgage Loan during the related Collection Period that
were identified and applied by the Master Servicer as recoveries of
principal of the ES Component Mortgage Loan, in each case net of any
portion of such amounts that represents a recovery of the principal
portion of any Monthly Payment (other than a Balloon Payment) due,
or of the principal portion of any Assumed Monthly Payment deemed
due, in respect of the ES Component Mortgage Loan on a Due Date
during or prior to the related Collection Period and not previously
recovered.
"ES Component Mortgage Loan ES-A Component": One of the nine ES
Component Mortgage Loan Components and that corresponds to the Class ES-A
Certificates.
"ES Component Mortgage Loan ES-B Component": One of the nine ES
Component Mortgage Loan Components and that corresponds to the Class ES-B
Certificates.
"ES Component Mortgage Loan ES-C Component": One of the nine ES
Component Mortgage Loan Components and that corresponds to the Class ES-C
Certificates.
"ES Component Mortgage Loan ES-D Component": One of the nine ES
Component Mortgage Loan Components and that corresponds to the Class ES-D
Certificates.
"ES Component Mortgage Loan ES-E Component": One of the nine ES
Component Mortgage Loan Components and that corresponds to the Class ES-E
Certificates.
"ES Component Mortgage Loan ES-F Component": One of the nine ES
Component Mortgage Loan Components and that corresponds to the Class ES-F
Certificates.
"ES Component Mortgage Loan ES-G Component": One of the nine ES
Component Mortgage Loan Components and that corresponds to the Class ES-G
Certificates.
"ES Component Mortgage Loan ES-H Component": One of the nine ES
Component Mortgage Loan Components and that corresponds to the Class ES-H
Certificates.
"ES Component Mortgage Loan Principal Distribution Amount": With
respect to any Distribution Date, the aggregate of the ES Component Mortgage
Loan Current Principal Distribution Amount for such Distribution Date and, if
such Distribution Date is subsequent to the initial Distribution Date, the
excess, if any, of the ES Component Mortgage Loan Current Principal Distribution
Amount for the preceding Distribution Date, over the aggregate distributions of
principal made on the ES Component Mortgage Loan Senior Component and the Class
ES Certificates on the preceding Distribution Date.
"ES Component Mortgage Loan REMIC Senior Regular Interest": A
separate non-certificated beneficial ownership interest in the Component
Mortgage Loan REMIC issued hereunder and designated as a "regular interest" in
the Component Mortgage Loan REMIC, as set forth in the Preliminary Statement
hereto.
"ES Component Mortgage Loan Senior Balance": With respect to the ES
Component Mortgage Loan Senior Component, the principal balance of the ES
Component Mortgage Loan Senior Component outstanding from time to time which, as
of the Closing Date is equal to the amount set forth in the Preliminary
Statement. On each Distribution Date, the ES Component Mortgage Loan Senior
Balance shall be reduced by the amount of any distributions of principal
allocated to ES Component Mortgage Loan REMIC Senior Regular Interest on such
Distribution Date pursuant to Section 4.01(i)(ii) or 9.01, as applicable, and
shall be further reduced by the amount of any Realized Losses and Additional
Trust Fund Expenses incurred with respect to the ES Component Mortgage Loan
allocated to any Class of Sequential Pay Certificates on such Distribution Date
pursuant to Section 4.04. Distributions in respect of a reimbursement of
Realized Losses and Additional Trust Fund Expenses in respect of the ES
Component Mortgage Loan previously allocated to any Class of Sequential Pay
Certificates shall not constitute distributions of principal and shall not
result in reduction of the ES Component Mortgage Loan Senior Balance.
"ES Component Mortgage Loan Senior Component": One of the nine ES
Component Mortgage Loan Components represented by the ES Component Mortgage Loan
REMIC Senior Regular Interest.
"ES Component Mortgage Loan Senior Component Principal Distribution
Amount": As defined in Section 4.01(i)(ii).
"ES Component Mortgage Loan Subordinate Balance": With respect to
each ES Component Mortgage Loan Subordinate Component, the aggregate principal
amount of ES Component Mortgage Loan Subordinate Components outstanding from
time to time which, on any date, shall equal the Class Principal Balance of the
Corresponding Class ES Certificates on such date. On each Distribution Date,
such ES Component Mortgage Loan Subordinate Balance shall be reduced by the
amount of any distributions of principal allocated to the Corresponding Class ES
Certificates on such Distribution Date pursuant to Section 4.01(i)(v), (viii),
(xi), (xiv), (xvii), (xx), (xxiii), (xxvi) or 9.01, as applicable, and shall be
further reduced by the amount of any Realized Losses and Additional Trust Fund
Expenses incurred with respect to the ES Component Mortgage Loan allocated to
the Corresponding Class of Class ES Certificates on such Distribution Date
pursuant to Section 4.04(a).
"ES Component Mortgage Loan Subordinate Component": Any of the
undivided subordinate ownership interests in the Component Mortgage Loan REMIC
represented by each of the Class ES-A, Class ES-B, Class ES-C, Class ES-D, Class
ES-E, Class ES-F, Class ES-G and Class ES-H Certificates.
"ES Control Appraisal Period": If the outstanding aggregate
principal balance of all of the ES Subordinate Components of the ES Component
Mortgage (net of any Appraisal Reduction Amounts, principal payments, Realized
Losses and unreimbursed Additional Trust Fund Expenses) is less than 25% of its
original principal balance.
"ES Controlling Class": As of any date of determination, the
outstanding Class of Class ES Certificates with the lowest payment priority that
has a then outstanding Certificate Balance at least equal to 25% of its initial
Certificate Balance (or, if no Class of Class ES Certificates has a Certificate
Balance at least equal to 25% of its initial Certificate Balance, then the ES
Controlling Class shall be the outstanding Class of Class ES Certificates with
the then largest outstanding Class principal balance). The ES Controlling Class
as of the Delivery Date will be the Class ES-H Certificates.
"ES Controlling Class Holder": As defined in Section 3.29.
"ES Controlling Holder": With respect to any date of determination
(a) prior to the occurrence of a ES Control Appraisal Period, the ES Controlling
Class Holder and (b) during the occurrence and the continuance of a ES Control
Appraisal Period, the Directing Certificateholder.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums and similar items
in respect of the related Mortgaged Property.
"Event of Default": One or more of the events described in Section
7.01(a).
"Excess Liquidation Proceeds": An amount equal to the excess, if
any, of (a) the Net Liquidation Proceeds from the sale or liquidation of a
Specially Serviced Loan or REO Property, over (b) the sum of: (i) the amount
needed to pay off the Loan or related REO Loan in full, (ii) all unpaid Advance
Interest on any related Advances, and (iii) any related Liquidation Fee.
"Excess Liquidation Proceeds Account": The segregated account or
sub-account of the Distribution Account created and maintained by the Trustee
pursuant to Section 3.04(d) in trust for the Certificateholders, which shall be
entitled "LaSalle Bank National Association, as Trustee, in trust for the
registered holders of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2003-1, Excess Liquidation Proceeds
Account".
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exemption": Prohibited Transaction Exemption ("PTE") 93-31 (issued
to NationsBank Corporation (predecessor in interest to Bank of America
Corporation)), Final Authorization Number 97-03E (issued to Deutsche Bank
Securities Inc.), PTE 89-88 (issued to Xxxxxxx, Xxxxx & Co.) and PTE 90-24
(issued to Xxxxxx Xxxxxxx & Co. Incorporated), each as amended by XXX 00-00, XXX
0000-00 and PTE 2002-41.
"Exemption-Favored Party": Any of (i) Bank of America Corporation
(successor in interest to NationsBank Corporation) or any Underwriter, (ii) any
Person directly or indirectly, through one or more intermediaries, controlling,
controlled by or under common control with Bank of America Corporation or any
Underwriter and (iii) any member of a syndicate or selling group of which Bank
of America Corporation or any Underwriter or any other person set forth in
clause (ii) is a manager or co-manager with respect to a Class of Certificates.
"Xxxxxx Mae": The Federal National Mortgage Association or any
successor.
"FDIC": The Federal Deposit Insurance Corporation or any successor.
"Final Distribution Date": The final Distribution Date on which any
distributions are to be made on the Certificates as contemplated by Section
9.01.
"Final Recovery Determination": A determination made by the Special
Servicer, in its reasonable, good faith judgment and in accordance with the
Servicing Standard, with respect to any Mortgage Loan or REO Property (other
than a Mortgage Loan that is paid in full and other than a Mortgage Loan or REO
Property, as the case may be, that is repurchased or replaced by the Mortgage
Loan Seller pursuant to the Mortgage Loan Purchase and Sale Agreement or
purchased by the Master Servicer, the Special Servicer or any Controlling Class
Certificateholder(s) pursuant to Section 9.01), that there has been a recovery
of all related Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds
and other payments or recoveries that will ultimately be recoverable.
"Fiscal Agent": ABN AMRO Bank N.V., in its capacity as fiscal agent
of the Trustee, or its successors in interest, or any successor fiscal agent
appointed as herein provided.
"Fitch": Fitch Ratings or its successor in interest. If neither
Fitch nor any successor remains in existence, "Fitch" shall be deemed to refer
to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee, the Master Servicer, the Special Servicer and the REMIC
Administrator, and specific ratings of Fitch Ratings herein referenced shall be
deemed to refer to the equivalent ratings of the party so designated.
"Xxxxxxx Mac": The Federal Home Loan Mortgage Corporation or any
successor.
"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.
"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 ("PCBs"),
radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"HUD-Approved Servicer": A servicer that is a mortgagee approved by
the Secretary of Housing and Urban Development pursuant to Sections 207 and 211
of the National Housing Act.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the Fiscal
Agent and any and all Affiliates thereof, (ii) does not have any direct
financial interest in or any material indirect financial interest in any of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Fiscal Agent or any Affiliate thereof, and (iii) is not
connected with the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, the Fiscal Agent or any Affiliate thereof as
an officer, employee, promoter, placement agent, trustee, partner, director or
Person performing similar functions; provided, however, that a Person shall not
fail to be Independent of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Fiscal Agent or any
Affiliate thereof merely because such Person is the beneficial owner of 1% or
less of any Class of securities issued by the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the REMIC Administrator, the Fiscal Agent or
any Affiliate thereof, as the case may be; provided, further, that such
ownership constitutes less than 1% of the total assets owned by such Person.
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to the Component Mortgage Loan REMIC or REMIC I, as
applicable, within the meaning of Section 856(d)(3) of the Code if the Component
Mortgage Loan REMIC or REMIC I were a real estate investment trust (except that
the ownership test set forth in that Section shall be considered to be met by
(i) any Person that owns, directly or indirectly, 35 percent or more of any
Class of Certificates, or such other interest in any Class of Certificates as is
set forth in an Opinion of Counsel, which shall not be an expense of the
Trustee, the REMIC Administrator or the Trust, delivered to the Trustee and the
REMIC Administrator), so long as the Component Mortgage Loan REMIC or REMIC I
does not receive or derive any income from such Person and provided that the
relationship between such Person and the Component Mortgage Loan REMIC or REMIC
I is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5), or (ii) any other Person upon receipt by the Trustee and the
REMIC Administrator of an Opinion of Counsel, which shall be at no expense to
the Trustee, the REMIC Administrator or the Trust, 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 Class Notional Amount": With respect to the Class XC
Certificates, the initial Class XC Notional Amount thereof as of the Closing
Date equal to $1,032,766,115 and with respect to the Class XP-1 Certificates,
the initial Class XP-2 Notional Amount thereof as of the Closing Date equal to
$655,763,877 and with respect to the Class XP-2 Certificates, the initial Class
XP-2 Notional Amount thereof as of the Closing Date equal to $281,041,661.
"Initial Class Principal Balance": With respect to any Class of
Sequential Pay Certificates, Class ES Certificates, Class SB Certificates or
Class WB Certificates, the initial Class Principal Balance thereof as of the
Closing Date, in each case as set forth in the Preliminary Statement hereto.
"Initial Pool Balance": The aggregate Cut-off Date Balance of all
the Mortgage Loans included in the Trust Fund as of the Closing Date.
"Initial Resolution Period": As defined in Section 2.03.
"Institutional Accredited Investor": As defined in Section 5.02(b).
"Insurance Policy": With respect to any Loan or REO Property, any
hazard insurance policy, seismic (earthquake) insurance policy, business
interruption insurance policy, flood insurance policy, title policy or other
insurance policy that is maintained from time to time in respect of such Loan
(or the related Mortgaged Property) or in respect of such REO Property, as the
case may be.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to
the extent such proceeds are not applied to the restoration of the related
Mortgaged Property or REO Property or released to the Mortgagor or any other
third party as permitted under the related Loan documents, in either case, in
accordance with the Servicing Standard and with applicable law.
"Interest Accrual Basis": The basis on which interest accrues in
respect of any Mortgage Loan, any Component Mortgage Loan REMIC Regular
Interest, any REMIC I Regular Interest, any Class of REMIC II Regular
Certificates, or any Class of Class WB Certificates, consisting of one of the
following: (i) a 30/360 Basis; or (ii) an Actual/360 Basis.
"Interest Accrual Period": With respect to each Class of Component
Mortgage Loan REMIC Regular Interests, each Class of REMIC I Regular Interests,
each Class of REMIC II Regular Certificates and each Class of Class WB
Certificates for any Distribution Date, the calendar month immediately preceding
the month in which such Distribution Date occurs.
"Interest Reserve Account": The segregated account or sub-account of
the Distribution Account created and maintained by the Trustee pursuant to
Section 4.05 in trust for the Certificateholders, which shall be entitled
"LaSalle Bank National Association, as Trustee, in trust for the registered
holders of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2003-1, Interest Reserve Account".
"Interested Person": The Depositor, the Mortgage Loan Seller, the
Master Servicer, any Sub-Servicer, the Special Servicer, the Trustee, the Fiscal
Agent any Holder of a Certificate 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).
"IRS": The Internal Revenue Service or any successor.
"Late Collections": With respect to any Loan, all amounts received
thereon during any Collection Period, whether as payments, Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds or otherwise, which represent late
collections of the principal and/or interest portions of a Monthly Payment
(other than a Balloon Payment) or an Assumed Monthly Payment in respect of such
Loan due or deemed due, as the case may be, for a Due Date in a previous
Collection Period, or for a Due Date coinciding with or preceding the Cut-off
Date, and not previously received or recovered. With respect to any REO Loan,
all amounts received in connection with the related REO Property during any
Collection Period, whether as Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, REO Revenues or otherwise, which represent late
collections of the principal and/or interest portions of a Monthly Payment
(other than a Balloon Payment) or an Assumed Monthly Payment in respect of the
related Loan or of an Assumed Monthly Payment in respect of such REO Loan due or
deemed due, as the case may be, for a Due Date in a previous Collection Period
and not previously received or recovered.
"Letter of Credit": With respect to any Loan, any third-party letter
of credit delivered by or at the direction of the Mortgagor pursuant to the
terms of such Loan in lieu of the establishment of, or deposit otherwise
required to be made into, a Reserve Fund.
"Liquidation Expenses": All customary, reasonable and necessary "out
of pocket" costs and expenses due and owing (but not otherwise covered by
Servicing Advances) in connection with the liquidation of any Specially Serviced
Loan or REO Property pursuant to Section 3.09 or 3.18 (including, without
limitation, legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced Loan or
REO Property, the fee designated as such and payable to the Special Servicer
pursuant to the third paragraph of Section 3.11(c). Notwithstanding the
foregoing and for the avoidance of doubt, no Liquidation Fee shall be payable in
connection with (a) the purchase of a Defaulted Mortgage Loan by the Majority
Certificateholder of the Controlling Class, any CBA B Noteholder (if the related
Defaulted Mortgage Loan is a CBA Mortgage Loan), the ES Controlling Holder (if
the related Defaulted Mortgage Loan is the ES Component Mortgage Loan), the SB
Controlling Holder (if the related Defaulted Mortgage Loan is the SB Component
Mortgage Loan) or the Wellbridge Note B Holder and/or the Wellbridge Mezzanine
Lender (if the related Defaulted Mortgage Loan is a Wellbridge Trust Mortgage
Loan) pursuant to any applicable purchase right set forth in Section 3.18(c),
(l) or (m) of this Agreement or with respect to a purchase of a related
Defaulted Mortgage Loan at its fair value as determined in Section 3.18, if any
such purchase occurs or purchase right is exercised not later than ninety days
from the date that the Special Servicer initially determined the fair value of
the related Loan, (b) the purchase option of the Majority Certificateholder of
the Controlling Class, the Master Servicer or the Special Servicer pursuant to
Section 9.01 of this Agreement or (c) the repurchase by the Mortgage Loan Seller
of a Mortgage Loan so required to be repurchased by it pursuant to Section 4 of
the Mortgage Loan Purchase and Sale Agreement and Section 2.03 of this Agreement
not later than 270 days after it has been notified pursuant to of its obligation
to so repurchase under Section 2.03 of this Agreement and Section 4 of the
Mortgage Loan Purchase and Sale
"Liquidation Fee Rate": With respect to each Specially Serviced Loan
or REO Property as to which a Liquidation Fee is payable, 1.0% (100 basis
points).
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds, Condemnation Proceeds and REO Revenues) received by the Master
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, through trustee's sale, foreclosure sale, REO Disposition or
otherwise, exclusive of any portion thereof required to be released to the
related Mortgagor in accordance with applicable law and/or the terms and
conditions of the related Mortgage Loan documents; (ii) the realization upon any
deficiency judgment obtained against a Mortgagor; (iii) the purchase of a
Defaulted Mortgage Loan by any Controlling Class Certificateholder(s) pursuant
to Section 3.18(c), by the Special Servicer pursuant to Section 3.18(d) by the
ES Controlling Holder pursuant to Section 3.18(l), the SB Controlling Holder
pursuant to Section 3.18(l), the applicable CBA B Noteholder pursuant to the
related Co-Lender Agreement, the WB Controlling Holder pursuant to the related
Co-Lender Agreement or the Wellbridge Mezzanine Lender pursuant to the
Wellbridge Mezzanine Intercreditor Agreement; (iv) the repurchase of a Mortgage
Loan by the Mortgage Loan Seller pursuant to the Mortgage Loan Purchase and Sale
Agreement; (v) the substitution of one or more Replacement Mortgage Loans for a
Deleted Mortgage Loan by the Mortgage Loan Seller pursuant to the Mortgage Loan
Purchase and Sale Agreement (such cash amounts being any Substitution Shortfall
Amounts); or (vi) the purchase of a Mortgage Loan or REO Property by the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder(s)
pursuant to Section 9.01.
"Loan": Any Mortgage Loan, Component Loan or Companion Loan.
"Loan Pair": Any of the Wellbridge A/B Mortgage Loan and the CBA A/B
Mortgage Loans.
"Loan Pair Custodial Account": With respect to each Loan Pair, the
segregated account or accounts created and maintained by the Master Servicer
pursuant to Section 3.04(e) on behalf of the Wellbridge Noteholders or the CBA
Noteholders, as applicable, which shall be entitled (a) in the case of the
Wellbridge Noteholders: "Bank of America, N.A., as Master Servicer, in trust for
the Wellbridge A/B Mortgage Loan Noteholders, as their interests may appear" and
(b) in the case of a CBA Noteholder: "Bank of America, N.A., as Master Servicer,
in trust for the CBA A/B Mortgage Loan Noteholder, as their interests may
appear" Any such account shall at all times be an Eligible Account.
"Loan Pair Remittance Amount": With respect to any Master Servicer
Remittance Date, an amount equal to (a) all amounts on deposit in the related
Loan Pair Custodial Account as of the commencement of business on such Master
Servicer Remittance Date, net of (b) any portion of the amounts described in
clause (a) of this definition that represents one or more of the following: (i)
collected Monthly Payments that are due on a Due Date following the end of the
related Collection Period, (ii) any unscheduled payments of principal
(including, without limitation, Principal Prepayments, and interest, Liquidation
Proceeds and Insurance Proceeds received after the end of the related Collection
Period), (iii) any Prepayment Premiums received after the end of the related
Collection Period, (iv) any amounts payable or reimbursable to any Person from
the related Loan Pair Custodial Account pursuant to any of clauses (ii) through
(xvii) of Section 3.05(f), (v) any Excess Liquidation Proceeds, and (vi) any
amounts deposited in the related Loan Pair Custodial Account in error; provided
that, with respect to the Master Servicer Remittance Date that occurs in the
same calendar month as the Final Distribution Date, the Loan Pair Remittance
Amount will be calculated without regard to clauses (b)(i), (b)(ii) and (b)(iii)
of this definition.
"Loan Pair REO Account": As defined in Section 3.16(b).
"Loan Specific Controlling Class Holders": As defined in Section
3.29.
"Lock-Box Agreement": With respect to any Mortgage Loan, the
lock-box agreement, if any, between the related originator and the Borrower,
pursuant to which an account created pursuant to the related Mortgage Loan
documents to receive revenues therefrom, if any, may have been established.
"Lock-Box Account": With respect to any Lock-Box Agreement, the
account(s) established pursuant to the terms of such agreement.
"MAI": Member of the Appraisal Institute.
"Majority Certificateholder": With respect to any specified Class or
Classes of Certificates, as of any date of determination, any Holder or
particular group of Holders of Certificates of such Class or Classes, as the
case may be, entitled to a majority of the Voting Rights allocated to such Class
or Classes, as the case may be.
"Majority Mortgage Loan": All of the Mortgage Loans other than the
ES Component Mortgage Loan and the SB Component Mortgage Loan.
"Master Servicer": Bank of America, N.A., its successor in interest
or any successor master servicer appointed as herein provided.
"Master Servicer Remittance Amount": With respect to any Master
Servicer Remittance Date, an amount equal to (a) all amounts on deposit in the
Certificate Account as of the commencement of business on such Master Servicer
Remittance Date, net of (b) any portion of the amounts described in clause (a)
of this definition that represents one or more of the following: (i) collected
Monthly Payments that are due on a Due Date following the end of the related
Collection Period, (ii) any unscheduled payments of principal (including,
without limitation, Principal Prepayments, and interest, Liquidation Proceeds
and Insurance Proceeds received after the end of the related Collection Period,
(iii) any Prepayment Premiums received after the end of the related Collection
Period, (iv) any amounts payable or reimbursable to any Person from the
Certificate Account pursuant to any of clauses (ii) through (xvii) of Section
3.05(a), (v) any Excess Liquidation Proceeds, and (vi) any amounts deposited in
the Certificate Account in error; provided that, with respect to the Master
Servicer Remittance Date that occurs in the same calendar month as the Final
Distribution Date, the Master Servicer Remittance Amount will be calculated
without regard to clauses (b)(i), (b)(ii) and (b)(iii) of this definition.
"Master Servicer Remittance Date": The Business Day immediately
preceding each Distribution Date.
"Master Servicing Fee": With respect to each Loan and REO Loan, the
fee payable to the Master Servicer pursuant to Section 3.11(a) and from which
any Primary Servicing Fee is payable.
"Master Servicing Fee Rate": With respect to (a) each Mortgage Loan
(and any related REO Loan), the Administrative Fee Rate specified for each such
Mortgage Loan on the Mortgage Loan Schedule less 0.20 basis points (0.0020% per
annum), (b) with respect to each CBA B Note and any related REO Loan 0.05% and
(c) with respect to the Wellbridge Senior Companion Loans and any related REO
Loans, the Master Servicing Fee Rate shall be the same as the Master Servicing
Fee Rate for the Wellbridge Mortgage Loan or the Wellbridge Note B Loan, as
applicable.
"Material Breach": A Breach that materially and adversely affects
the interests of the Certificateholders, or any of them, with respect to the
affected Mortgage Loan, including but not limited to a material and adverse
effect on any of the distributions payable with respect to any of the
Certificates or on the value of such Certificates.
"Material Document Defect": A Document Defect that materially and
adversely affects the interests of the Certificateholders, or any of them, with
respect to the affected Mortgage Loan, including but not limited to a material
and adverse effect on any of the distributions payable with respect to any of
the Certificates or on the value of such Certificates.
"Modified Loan": Any Loan as to which any Servicing Transfer Event
has occurred and which has been modified by the Special Servicer pursuant to
Section 3.20 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing current
Monthly Payments with respect to such Loan);
(b) except as expressly contemplated by the related Loan documents,
results in a release of the lien of the Mortgage on any material portion
of the related Mortgaged Property without a corresponding Principal
Prepayment in an amount or the delivery of substitute real property
collateral with a fair market value (as is) that is not less than the fair
market value (as is), as determined by an Appraisal delivered to the
Special Servicer (at the expense of the related Mortgagor and upon which
the Special Servicer may conclusively rely), of the property to be
released; or
(c) in the good faith and reasonable judgment of the Special
Servicer, otherwise materially impairs the security for such Loan or
reduces the likelihood of timely payment of amounts due thereon.
"Monthly Payment": With respect to any Loan, for any Due Date as of
which such Loan is outstanding, the scheduled monthly payment of principal
and/or interest on such Loan, including, without limitation, a Balloon Payment,
that is actually payable by the related Mortgagor from time to time under the
terms of the related Mortgage Note (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section 3.20
and applicable law).
"Mortgage": With respect to any Mortgage Loan, separately and
collectively, as the context may require, each mortgage, deed of trust and/or
other similar document or instrument securing the related Mortgage Note and
creating a lien on the related Mortgaged Property.
"Mortgage File": With respect to any Mortgage Loan, subject to
Sections 1.03 and 2.01, collectively the following documents:
(i) (A) the original executed Mortgage Note, endorsed (either
on the face thereof or pursuant to a separate allonge) "Pay to the
order of LaSalle Bank National Association, as Trustee for the
registered holders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2003-1,
without recourse" or in blank, and further showing a complete,
unbroken chain of endorsement from the originator (if such
originator is other than the Mortgage Loan Seller); or
alternatively, if the original executed Mortgage Note has been lost,
a lost note affidavit and indemnity from the applicable Mortgage
Loan Seller with a copy of such Mortgage Note and (B) in the case of
each Companion Loan, a copy of the executed Mortgage Note for such
Companion Loan;
(ii) an original or a copy of the Mortgage and any intervening
assignments that precede the assignment referred to in clause (iv)
of this definition, in each case (unless the particular item has not
been returned from the applicable recording office) with evidence of
recording indicated thereon;
(iii) an original or a copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage) and
of any intervening assignments thereof that precede the assignment
referred to in clause (v) of this definition, in each case (unless
the particular item has not been returned from the applicable
recording office) with evidence of recording indicated thereon and
in the case of each Loan Pair, also to LaSalle Bank National
Association in its capacity as "lead lender" or "Note A-1 holder" on
behalf of the holders of the related Companion Loans;
(iv) an original executed assignment of the Mortgage, in favor
of LaSalle Bank National Association, as Trustee for the registered
holders of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2003-1 or in blank, in
recordable form (except for any missing recording information with
respect to such Mortgage) and in the case of each Loan Pair, also to
LaSalle Bank National Association in its capacity as "lead lender"
or "Note A-1 holder" on behalf of the holders of the related
Companion Loans;
(v) an original executed assignment of any related Assignment
of Leases (if such item is a document separate from the Mortgage),
in favor of LaSalle Bank National Association, as Trustee for the
registered holders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2003-1 or in
blank, in recordable form (except for any missing recording
information with respect to such Assignment of Leases) and in the
case of each Loan Pair, also to LaSalle Bank National Association in
its capacity as "lead lender" or "Note A-1 holder" on behalf of the
holders of the related Companion Loans;
(vi) originals or copies of any written assumption,
modification, written assurance and substitution agreements in those
instances where the terms or provisions of the Mortgage or Mortgage
Note have been modified or the Mortgage Loan has been assumed, in
each case (unless the particular item has not been returned from the
applicable recording office) with evidence of recording indicated
thereon if the instrument being modified or assumed is a recordable
document;
(vii) the original or a copy of the policy of lender's title
insurance or, if such policy has not yet been issued, a "marked-up"
pro forma title policy or commitment for title insurance;
(viii) filed copies of any prior UCC Financing Statements in
favor of the originator of such Mortgage Loan or in favor of any
assignee prior to the Trustee (but only to the extent the Mortgage
Loan Seller had possession of such UCC Financing Statements prior to
the Closing Date) and, in connection with such UCC Financing
Statements, an original UCC-2 or UCC-3, as appropriate, in favor of
LaSalle Bank National Association, as Trustee for the registered
holders of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2003-1 or in blank, in a
form that is complete and suitable for filing or recording, and
sufficient to assign to the Trustee the security interest held by
the originator of the Mortgage Loan or its assignee;
(ix) the original or a copy of any environmental indemnity
agreement relating solely to such Mortgage Loan;
(x) the original or a copy of any power of attorney, guaranty,
loan agreement, Ground Lease and/or Ground Lease estoppels relating
to such Mortgage Loan;
(xi) any original documents (including any security
agreement(s)) relating to, evidencing or constituting Additional
Collateral and, if applicable, the originals or copies of any
intervening assignments thereof;
(xii) the original or a copy of any intercreditor agreement,
co-lender agreement, agreement among noteholders or similar
agreement relating to such Mortgage Loan and a copy of any Letter of
Credit; and
(xiii) with respect to the Companion Loans, the original
Wellbridge Note B, copies of the Wellbridge Senior Companion Notes
and the CBA B Notes, as applicable.
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf such term shall
not be deemed to include such documents and instruments required to be included
therein unless they are actually so received.
"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 security documents contained in the related Mortgage
File.
"Mortgage Loan Purchase and Sale Agreement": The Mortgage Loan
Purchase and Sale Agreement, dated as of April 9, 2003, between Bank of America
and the Depositor.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, which list is
attached hereto as Schedule I and may be amended from time to time in accordance
with Section 2.03(f). The Mortgage Loan Schedule shall set forth, among other
things, the following information with respect to each Mortgage Loan:
(i) the loan number, the control number and the trust mortgage
loan identification number;
(ii) the street address or addresses (including city, state
and zip code) of the related Mortgaged Property.
(iii) (a) the Mortgage Rate in effect as of the Cut-off Date
and (b) whether the Mortgage Loan accrues interest on the basis of
the actual number of days elapsed in the relevant month of accrual
and a 360-day year (an "Actual/360 Basis") or on the basis of a
360-day year consisting of twelve 30-day months (a "30/360 Basis");
(iv) the original principal balance;
(v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity and (B) Stated
Maturity Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due
Date following the Cut-off Date (other than with respect to Loans
which are interest only for some or all of their respective Loan
terms then in such case the amortizing debt service);
(ix) the Administrative Fee Rate (inclusive of the Master
Servicer Fee Rate, the Trustee Fee Rate, and the Primary Servicing
Fee Rate);
(x) the Primary Servicing Fee Rate;
(xi) the Master Servicing Fee Rate;
(xii) whether the Mortgagor's interest in the related
Mortgaged Property is or includes a Ground Lease;
(xiii) whether the Mortgage Loan is a Cross-Collateralized
Mortgage Loan and, if so, a reference to the other Mortgage Loans
that are cross-collateralized with such Mortgage Loan;
(xiv) the original amortization term; and
(xv) the applicable grace period.
The Mortgage Loan Schedule shall also set forth the aggregate Cut-off Date
Balance 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": Bank of America and its successors and
assigns.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Loan, together with any rider, addendum or
amendment thereto.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any
successor REO Loans. The Mortgage Pool does not include the Wellbridge Senior
Companion Loans or any CBA B Notes or any REO Loan related to any of them.
"Mortgage Rate": With respect to (i) any Loan on or prior to its
Stated Maturity Date, the annualized rate at which interest is scheduled (in the
absence of a default) to accrue on such Loan from time to time in accordance
with the terms of the related Mortgage Note (as such may be modified at any time
following the Closing Date) and applicable law, (ii) any Loan after its Stated
Maturity Date, the annualized rate described in clause (i) above determined
without regard to the passage of such Stated Maturity Date, and (iii) any REO
Loan, the annualized rate described in clause (i) or (ii) above, as applicable,
determined as if the related Loan had remained outstanding.
"Mortgaged Property": Individually and collectively, as the context
may require, each real property (together with all improvements and fixtures
thereon) subject to the lien of a Mortgage and constituting collateral for a
Loan. With respect to any Cross-Collateralized Mortgage Loan, as the context may
require, "Mortgaged Property" may mean, collectively, all the Mortgaged
Properties securing such Cross-Collateralized Mortgage Loan.
"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 during the related Collection Period, exceeds (b) the
amount of the Compensating Interest Payment remitted by the Master Servicer
pursuant to Section 3.19(e) on the Master Servicer Remittance Date related to
such Distribution Date.
"Net Assumption Fee": As defined in Section 3.08.
"Net Assumption Application Fee": As defined in Section 3.08.
"Net Cash Flow": With respect to any Mortgaged Property, the total
operating revenues derived from such Mortgaged Property, minus the total fixed
and variable operating expenses, capital expenditures such as reserves, tenant
improvements and leasing commissions, incurred in respect of such Mortgaged
Property (subject to adjustments for, among other things, (i) non-cash items
such as depreciation and amortization, and (ii) debt service on loans secured by
the Mortgaged Property).
"Net Default Charges": With respect to any Mortgage Loan or REO
Loan, the Default Charges referred to in clause fifth of Section 3.27(a) and
Section 3.27(c), which is payable to the Master Servicer as Additional Master
Servicing Compensation or the Special Servicer as Additional Special Servicing
Compensation.
"Net Investment Earnings": With respect to any Investment Account
for any Collection Period, the amount, if any, by which the aggregate of all
interest and other income realized during such Collection Period on funds held
in such Investment Account, exceeds the aggregate of all losses and investment
costs, if any, incurred during such Collection Period in connection with the
investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any Investment Account for
any Collection Period, the amount by which the aggregate of all losses and
investment costs, if any, incurred during such Collection Period in connection
with the investment of funds held in such Investment Account in accordance with
Section 3.06, exceeds the aggregate of all interest and other income realized
during such Collection Period on such funds, but Net Investment Loss shall not
include any loss with respect to such investment which is incurred solely as a
result of the insolvency of the federally 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 and
so long as such depository institution or trust company is not an Affiliate of
either the Master Servicer or the Special Servicer.
"Net Liquidation Proceeds": The excess, if any, of all Liquidation
Proceeds received with respect to any Specially Serviced Loan or REO Property,
over the amount of all Liquidation Expenses incurred with respect thereto and
all related Servicing Advances reimbursable therefrom.
"Net Modification Fee": As defined in Section 3.20(h).
"Net Modification Application Fee": As defined in Section 3.20(h).
"Net Mortgage Rate": With respect to any Majority Mortgage Loan, the
ES Component Mortgage Loan Senior Component, the SB Component Mortgage Loan
Senior Component or REO Loan, as of any date of determination, a rate per annum
equal to the related Mortgage Rate then in effect, or in the case of the ES
Component Mortgage Loan Senior Component a per annum rate equal to
4.95749893154882%, or in the case of the SB Component Mortgage Loan Senior
Component a per annum rate equal to 5.18338217287389%, in each case minus the
related Administrative Fee Rate. With respect to any Companion Loan or successor
REO Loan as of any date of determination a per annum rate equal to the Mortgage
Rate then in effect minus the related Administrative Fee Rate. With respect to
each of the ES Component Mortgage Loan Subordinate Components, the Net Mortgage
Rate set forth for such ES Component Mortgage Loan Subordinate Component in the
table below. With respect to each of the SB Component Mortgage Loan Subordinate
Components, the Net Mortgage Rate set forth for such SB Component Mortgage Loan
Subordinate Component in the table below. For purposes of calculating the
Pass-Through Rate for each Class of Certificates (other than the Residual
Certificates) from time to time, the Net Mortgage Rate for any Mortgage Loan
will be calculated without regard to any modification, waiver or amendment of
the terms of such Mortgage Loan subsequent to the Closing Date; provided,
however, that with respect to such Majority Mortgage Loans or the Component
Mortgage Loan REMIC Senior Regular Interests, the Mortgage Rate for the one (1)
month period (a) prior to the due dates in January and February in any year
which is not a leap year or in February in any year which is a leap year will be
the per annum rate stated in the related Mortgage Note and (b) prior to the due
date in March will be determined inclusive of one (1) day of interest retained
for the one (1) month period prior to the due dates in January and February in
any year which is not a leap year or February in any year which is a leap year.
ES Component Mortgage
Loan Subordinate Component Net Mortgage Rate
-------------------------- -----------------
ES-A 4.7670%
ES-B 4.8060%
ES-C 4.8360%
ES-D 5.9180%
ES-E 5.9180%
ES-F 5.9180%
ES-G 5.9180%
ES-H 5.9180%
SB Component Mortgage
Loan Subordinate Component Net Mortgage Rate
-------------------------- -----------------
SB-A 5.7700%
SB-B 5.8600%
SB-C 5.7900%
SB-D 6.4100%
SB-E 6.7700%
"Net Operating Income": With respect to any Mortgaged Property, the
total operating revenues derived from such Mortgaged Property for a specified
period, minus the total fixed and variable operating expenses incurred in
respect of such Mortgaged Property (subject to adjustments for, and excluding,
among other things, (i) non-cash items such as depreciation and amortization,
(ii) capital expenditures (inclusive of replacement reserves) and (iii) debt
service on loans secured by the Mortgaged Property).
"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-Partitioned Loans": Each Loan, other than the ES Component
Mortgage Loan, the SB Component Mortgage Loan and the Wellbridge A/B Mortgage
Loan.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class XC, Class XP-1, Class XP-2, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P,
Class ES-A, Class ES-B, Class ES-C, Class ES-D, Class ES-E, Class ES-F, Class
ES-G, Class ES-H, Class SB-A, Class SB-B, Class SB-C, Class SB-D, Class SB-E,
Class WB-A, Class WB-B, Class WB-C, Class WB-D, Class R-I and Class R-II
Certificate.
"Non-U.S. Person": Any person other than a U.S. Person.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": As evidenced by the Officer's
Certificate and supporting documentation contemplated by Section 4.03(c), any
P&I Advance previously made or to be made in respect of any Loan or any REO Loan
that, as determined by the Master Servicer or, if applicable, the Trustee or the
Fiscal Agent, in its reasonable, good faith judgment, based on at least an
Appraisal conducted within the twelve months preceding any such determination,
will not be ultimately recoverable from Default Charges, Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds or any other recovery on or in
respect of such Mortgage Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance made or
proposed to be made in respect of a Loan or REO Property which, as determined by
the Master Servicer or, if applicable, the Special Servicer, the Trustee or the
Fiscal Agent in its reasonable and good faith judgment, will not be recoverable
(together with Advance Interest accrued thereon), or which in fact was not
ultimately recovered, from Default Charges, Insurance Proceeds, Liquidation
Proceeds or any other recovery on or in respect of such Loan or REO Property
(without giving effect to potential recoveries on deficiency judgments or
recoveries from guarantors).
"Officer's Certificate": A certificate signed by a Servicing Officer
of the Master Servicer or the Special Servicer, a Responsible Officer of the
Trustee or any authorized officer of the Mortgage Loan Seller, as the case may
be.
"Operating Advisor": With respect to any Mortgage Loan, the advisor
elected pursuant to Section 3.29 hereof.
"Opinion of Counsel": A written opinion of counsel (who must, in
connection with any opinion rendered pursuant hereto with respect to tax matters
or a resignation under Section 6.04, be Independent counsel, but who otherwise
may be salaried counsel for the Depositor, the Trustee, the REMIC Administrator,
the Fiscal Agent, the Master Servicer or the Special Servicer), which written
opinion is acceptable and delivered to the addressee(s).
"Option Price": As defined in Section 3.18(c).
"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 Loan or REO Loan, any advance made by the
Master Servicer, the Trustee or the Fiscal Agent pursuant to Section 4.03.
"Pass-Through Rate": With respect to any Class of Sequential Pay
Certificates, the rate per annum specified as such in respect of such Class of
Certificates in the Preliminary Statement hereto. With respect to the Class XC,
Class XP-1 and Class XP-2 Certificates, for any Distribution Date, the Class XC
Pass-Through Rate, Class XP-1 Pass-Through Rate and Class XP-2 Pass-Through
Rate, respectively. With respect to any Class of Class ES Certificates, for any
Distribution Date, the related Class ES Pass-Through Rate. With respect to any
Class of Class SB Certificates, for any Distribution Date, the related Class SB
Pass-Through Rate. With respect to any Class of Class WB Certificates, the
related Class WB Pass-Through Rate.
"Past Grace Period Loan": With respect to any Master Servicer
Remittance Date, any Loan having any Monthly Payment remaining unpaid past its
Due Date and past any applicable grace period for such Monthly Payment as of the
Determination Date on the same calendar month.
"Payment Priority": With respect to any Class of Certificates (other
than the Class ES Certificates, the Class SB Certificates or the Class WB
Certificates), the priority of the Holders thereof in respect of the Holders of
the other Classes of Certificates to receive distributions out of the Available
Distribution Amount for any Distribution Date. The Payment Priority of the
respective Classes of Certificates shall be, in descending order, as follows:
first, the respective Classes of Senior Certificates; second, the Class B
Certificates; third, the Class C Certificates; fourth, the Class D Certificates;
fifth, the Class E Certificates; sixth, the Class F Certificates; seventh, the
Class G Certificates; eighth, the Class H Certificates; ninth, the Class J
Certificates; tenth, the Class K Certificates; eleventh, the Class L
Certificates; twelfth, the Class M Certificates; thirteenth, the Class N
Certificates; fourteenth, the Class O Certificates; fifteenth, the Class P
Certificates; and last, the respective Classes of Residual Certificates.
"Percentage Interest": With respect to any REMIC II Regular
Certificate, Class ES Certificate, Class SB Certificate or Class WB Certificate,
the portion of the relevant Class evidenced by such Certificate, expressed as a
percentage, the numerator of which is the Certificate Principal Balance or
Certificate Notional Amount, as the case may be, of such Certificate as of the
Closing Date, as specified on the face thereof, and the denominator of which is
the Initial Class Principal Balance or Initial Class Notional Amount, as the
case may be, of the relevant Class. With respect to a Residual Certificate, the
percentage interest in distributions to be made with respect to the relevant
Class, as stated on the face of such Certificate.
"Performance Certification": As defined in Section 8.13(c).
"Performing Loan": As of any date of determination, any Loan as to
which no Servicing Transfer Event then exists.
"Performing Party": As defined in Section 8.13(c).
"Permitted Investments": Any one or more of the following
obligations:
(a) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States;
(b) repurchase obligations with respect to any security described in
clause (a) above, provided that the long-term unsecured debt obligations
of the party agreeing to repurchase such obligations are rated "AA+" by
Fitch and "AAA" by S&P;
(c) federal funds, uncertificated certificates of deposit, time
deposits and bankers' acceptances (having original maturities of not more
than 365 days) of any bank or trust company organized under the laws of
the United States or any state, provided that the short-term unsecured
debt obligations of such bank or trust company are rated no less than
"F-1+" by Fitch, and "A-1+" by S&P;
(d) commercial paper (having original maturities of not more than
365 days) of any corporation incorporated under the laws of the United
States or any state thereof rated no less than "F-1+" by Fitch, and "A-1+"
by S&P;
(e) units of money market funds that maintain a constant asset value
and which are rated in the highest applicable rating category by each of
S&P (i.e. "AAAm" or "AAAmG") and Fitch; and
(f) any other obligation or security which would not result in the
downgrade, qualification (if applicable) or withdrawal of the rating then
assigned by any of the Rating Agencies to any Class of Certificates,
evidence of which shall be confirmed in writing by each Rating Agency to
the Trustee;
provided that no investment described hereunder shall evidence either the right
to receive (a) only interest with respect to such investment or (b) a yield to
maturity greater than 120% of the yield to maturity at par of the underlying
obligations; and provided, further, that no investment described hereunder may
be purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity; and
provided, further, that each investment described hereunder shall, by its terms,
have a predetermined fixed amount of principal due at maturity (that cannot vary
or change) and either a fixed interest rate or variable interest rate tied to a
single interest rate index plus a single fixed spread; and provided, further,
that each investment described hereunder shall be a "cash flow investment", as
defined in the REMIC Provisions; and provided, further, that no investment
described hereunder shall have a maturity in excess of one (1) year; and
provided, further, that no investment described hereunder shall be liquidated
prior to its maturity date; and provided, further, that no investment described
hereunder may have an "r" highlighter or other comparable qualifier attached to
its rating.
"Permitted Mezzanine Loan Holder": With respect to the Wellbridge
Mezzanine Loan, any "qualified transferee" with respect to which each Rating
Agency has confirmed in writing that the holding of the Wellbridge Mezzanine
Loan by such Person would not cause a qualification, downgrade or withdrawal of
any of such Rating Agency's then-current ratings on the Certificates or which
otherwise meets the qualifications set forth in the Wellbridge Mezzanine
Intercreditor Agreement to be a "qualified transferee".
"Permitted Transferee": Any Transferee of a Residual Certificate
other than any of a Plan, a Disqualified Organization, a Disqualified Non-U.S.
Person or a U.S. Person with respect to whom income on a Residual Certificate is
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 or any nominee, agent or middleman of any of the above.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or any agency or political subdivision thereof.
"Phase I Environmental Assessment": A "Phase I assessment" or, in
the case of certain Mortgage Loans having an initial principal balance under
$1,000,000, a transaction screen, as described in, and meeting the criteria of
the American Society for Testing and Materials.
"Plan": As defined in Section 5.02(c).
"Pool REO Account": A segregated custodial account or accounts
created and maintained by the Special Servicer pursuant to Section 3.16(b) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "Midland Loan Services, Inc., as Special Servicer, for the benefit of
LaSalle Bank National Association, as Trustee, in trust for registered Holders
of Banc of America Commercial Mortgage Inc. Commercial Mortgage Pass-Through
Certificates, Series 2003-1, REO Account." Any such account or accounts shall be
an Eligible Account.
"Post CAP Loan": Either the ES Component Mortgage Loan following the
occurrence and during the continuance of an ES Control Appraisal Period or the
SB Component Mortgage Loan following the occurrence and during the continuance
of an SB Control Appraisal Period.
"Prepayment Assumption": The assumption that no Mortgage Loan is
prepaid prior to its Stated Maturity Date such assumption to be used for
determining the accrual of original issue discount, market discount and premium,
if any, on the Mortgage Loans, the Component Mortgage Loan REMIC Regular
Interests, the REMIC I Regular Interests, the REMIC II Regular Certificates and
the Class ES, Class SB and Class WB, and the Certificates for federal income tax
purposes.
"Prepayment Interest Excess": With respect to any Loan that was
subject to a Principal Prepayment in full or in part made on or prior to the
Determination Date in any calendar month but after such Loan's Due Date, any
payment of interest (net of related Master Servicing Fees and exclusive of
Prepayment Premiums) actually collected from the related Mortgagor from and
after such Due Date.
"Prepayment Interest Shortfall": With respect to any Loan that was
subject to a Principal Prepayment in full or in part made after the
Determination Date in any calendar month, the amount of uncollected interest
(determined without regard to any Prepayment Premium that may have been
collected) that would have accrued at a per annum rate equal to the sum of the
Net Mortgage Rate for such Mortgage Loan plus the Trustee Fee Rate, on the
amount of such Principal Prepayment during the period commencing on the date as
of which such Principal Prepayment was applied to such Mortgage Loan and ending
on the last day of such calendar month, inclusive. A Prepayment Interest
Shortfall in respect of the ES Component Mortgage Loan shall be allocated as set
forth in the definition of "Distributable Certificate Interest". A Prepayment
Interest Shortfall in respect of the SB Component Mortgage Loan shall be
allocated as set forth in the definition of "Distributable Certificate
Interest". A Prepayment Interest Shortfall in respect of the Wellbridge Note B
Loan shall be allocated as set forth in the definition of Distributable
Certificate Interest.
"Prepayment Premium": Any premium, penalty or fee paid or payable,
as the context requires, by a Mortgagor in connection with a Principal
Prepayment on, or other early collection of principal of, a Loan or any
successor REO Loan.
"Primary Servicing Fee": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement as of the Closing Date, the monthly fee
payable to the Sub-Servicer by the Master Servicer from the Master Servicing
Fee, which monthly fee accrues at the Primary Servicing Fee Rate.
"Primary Servicing Fee Rate": With respect to each Mortgage Loan
that is subject to a Sub-Servicing Agreement as of the Closing Date, the rate
per annum specified as such in the Mortgage Loan Schedule.
"Primary Servicing Office": With respect to the Master Servicer, the
office thereof primarily responsible for performing its respective duties under
this Agreement, initially located in Los Angeles, California, and, with respect
to the Special Servicer, the office thereof primarily responsible for performing
its respective duties under this Agreement, initially located in Kansas.
"Principal Distribution Amount": With respect to any Distribution
Date, the aggregate of the Current Principal Distribution Amount for such
Distribution Date and, if such Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Principal Distribution Amount for
the preceding Distribution Date, over the aggregate distributions of principal
made on the Sequential Pay Certificates on the preceding Distribution Date.
"Principal Pay Certificates": Collectively, the Sequential Pay
Certificates, the Class ES Certificates, the Class SB Certificates and the Class
WB Certificates.
"Principal Prepayment": Any voluntary payment of principal made by
the Mortgagor on a Loan which is received in advance of its scheduled Due Date
and which is not accompanied by an amount of interest (without regard to any
Prepayment Premium that may have been collected) representing scheduled interest
due on any date or dates in any month or months subsequent to the month of
prepayment.
"Prohibited Actions": As defined in Section 3.21(f).
"Prospectus Supplement": That certain prospectus supplement dated
March 31, 2003, relating to the Class A, Class B and Class C Certificates, that
is a supplement to the Base Prospectus.
"Purchase Option": As defined in Section 3.18(c).
"Purchase Price": With respect to any Mortgage Loan, a price equal
to the unpaid principal balance of the Mortgage Loan as of the date of purchase,
together with (a) all accrued and unpaid interest on the Mortgage Loan at the
related Mortgage Rate to but not including the Due Date in the Collection Period
of purchase, (b) all related unreimbursed Master Servicing Fees, Special
Servicing Fees, Trustee Fees and Servicing Advances with respect to such
Mortgage Loan, (c) all accrued and unpaid Advance Interest in respect of related
Advances, (d) any Additional Trust Fund Expenses in respect of such Mortgage
Loan (including any Additional Trust Fund Expenses previously reimbursed or paid
by the Trust Fund but not so reimbursed by the related Mortgagor or other party
or from Insurance Proceeds or Condemnation Proceeds or otherwise), (e)
Liquidation Fees (if any) payable in connection with a purchase of a Mortgage
Loan and (f) any cost, fees and expenses of enforcement (including attorneys
fees) of a repurchase obligation pursuant to Section 2.03(h) of this Agreement.
With respect to any REO Property, a price equal to the unpaid principal balance
of the related REO Loan as of the date of purchase, together with (a) all
accrued and unpaid interest on such REO Loan at the related Mortgage Rate to but
not including the Due Date in the Collection Period of purchase, (b) all related
unreimbursed Servicing Advances, (c) all accrued and unpaid Advance Interest in
respect of related Advances, (d) any Additional Trust Fund Expenses in respect
of such REO Property (including any Additional Trust Fund Expenses previously
reimbursed or paid by the Trust Fund but not so reimbursed by the related
Mortgagor or other party or from Insurance Proceeds or Condemnation Proceeds or
otherwise), (e) Liquidation Fees (if any) payable in connection with a purchase
of a Mortgage Loan and (f) any cost, fees and expenses of enforcement (including
attorneys fees) of a repurchase obligation pursuant to Section 2.03 of this
Agreement. The Purchase Price of any Mortgage Loan or REO Property is intended
to include, without limitation, principal and interest previously advanced with
respect thereto and not previously reimbursed.
"Qualified Appraiser": In connection with the appraisal of any
Mortgage Loan, Mortgaged Property or REO Property, an Independent MAI-designated
appraiser with at least five (5) years of experience in respect of the relevant
geographic location and property type.
"Qualified Bidder": As defined in Section 7.01(d).
"Qualified Institutional Buyer": As defined in Section 5.02(b).
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Qualifying Substitute Mortgage Loan": In connection with the
replacement of a Defective Mortgage Loan as contemplated by Section 2.03, any
other mortgage loan which, on the date of substitution, (i) has a principal
balance, after deduction of the principal portion of any unpaid Monthly Payment
due on or before the date of substitution, not in excess of the Stated Principal
Balance of the Defective Mortgage Loan; (ii) is accruing interest at a fixed
rate of interest at least equal to that of the Defective Mortgage Loan; (iii)
has the same Due Date as, and a grace period for delinquent Monthly Payments
that is no longer than, the Due Date and grace period, respectively, of the
Defective Mortgage Loan; (iv) is accruing interest on the same basis as the
Defective Mortgage Loan (for example, on the basis of a 360-day year consisting
of twelve 30-day months); (v) has a remaining term to stated maturity not
greater than, and not more than two years less than, that of the Defective
Mortgage Loan and, in any event, has a maturity date not later than two years
prior to the Rated Final Distribution Date; (vi) has a then current
loan-to-value ratio not higher than, and a then current debt service coverage
ratio not lower than, the loan-to-value ratio and debt service coverage ratio,
respectively, of the Defective Mortgage Loan as of the Closing Date; (vii) has
comparable prepayment restrictions to those of the Defective Mortgage Loan,
(viii) will comply (except in a manner that would not be adverse to the
interests of the Certificateholders (as a collective whole) in or with respect
to such mortgage loan), as of the date of substitution, with all of the
representations relating to the Defective Mortgage Loan set forth in or made
pursuant to the Mortgage Loan Purchase and Sale Agreement; (ix) has a Phase I
Environmental Assessment and a property condition report relating to the related
Mortgaged Property in its Servicing File, which Phase I Environmental Assessment
will evidence that there is no material adverse environmental condition or
circumstance at the related Mortgaged Property for which further remedial action
may be required under applicable law, and which property condition report will
evidence that the related Mortgaged Property is in good condition with no
material damage or deferred maintenance; and (x) constitutes a "qualified
replacement mortgage" within the meaning of Section 860G(a)(4) of the Code;
provided, however, that if more than one mortgage loan is to be substituted for
any Defective Mortgage Loan, then all such proposed Replacement Mortgage Loans
shall, in the aggregate, satisfy the requirement specified in clause (i) of this
definition and each such proposed Replacement Mortgage Loan shall, individually,
satisfy each of the requirements specified in clauses (ii) through (x) of this
definition; and provided, further, that no mortgage loan shall be substituted
for a Defective Mortgage Loan unless (x) such prospective Replacement Mortgage
Loan shall be acceptable to the Directing Certificateholder (or, if there is no
Directing Certificateholder then serving, to the Holders of Certificates
representing a majority of the Voting Rights allocated to the Controlling
Class), in its (or their) sole discretion, and (y) each Rating Agency shall have
confirmed in writing to the Trustee that such substitution will not in and of
itself result in an Adverse Rating Event with respect to any Class of Rated
Certificates (such written confirmation to be obtained by, and at the expense
of, the Mortgage Loan Seller effecting the substitution).
"Rated Certificate": Any of the Certificates to which a rating has
been assigned by either Rating Agency at the request of the Depositor.
"Rated Final Distribution Date": As to each Class of Certificates,
other than Class ES Certificates, the Class SB Certificates and the Class WB
Certificates, the Distribution Date in September 2036. As to the Class ES
Certificates, the Class SB Certificates and the Class WB Certificates, the
Distribution Date in April 2036, March 2032, and April 2035 respectively.
"Rating Agency": Each of Fitch and S&P.
"Realized Loss": With respect to each defaulted Loan as to which a
Final Recovery Determination has been made, or with respect to any REO Loan as
to which a Final Recovery Determination has been made as to the related REO
Property, an amount (not less than zero) equal to (i) the unpaid principal
balance of such Loan or REO Loan, as the case may be, as of the Due Date related
to the Collection Period in which the Final Recovery Determination was made,
plus (ii) all accrued but unpaid interest on such Mortgage Loan or REO Loan, as
the case may be, at the related Mortgage Rate to but not including the Due Date
related to the Collection Period in which the Final Recovery Determination was
made, plus (iii) any related unreimbursed Servicing Advances as of the
commencement of the Collection Period in which the Final Recovery Determination
was made, together with any new related Servicing Advances made during such
Collection Period, minus (iv) all payments and proceeds, if any, received in
respect of such Collection Period related to the Loan or REO Loan, as the case
may be, during the Collection Period in which such Final Recovery Determination
was made (net of any related Liquidation Expenses paid therefrom).
With respect to any Loan as to which any portion of the outstanding
principal or accrued interest owed thereunder was forgiven in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Loan granted or agreed to by the
Master Servicer or Special Servicer pursuant to Section 3.20, the amount of such
principal or past due interest (other than any Default Interest) so forgiven.
With respect to any Loan as to which the Mortgage Rate thereon has
been permanently reduced and not recaptured for any period in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Loan granted or agreed to by the
Master Servicer or Special Servicer pursuant to Section 3.20, the amount of the
consequent reduction, if any, in the interest portion of each successive Monthly
Payment due thereon. Each such Realized Loss shall be deemed to have been
incurred on the Due Date for each affected Monthly Payment.
"Record Date": With respect to each Class of Certificates, for any
Distribution Date, the last Business Day of the calendar month immediately
preceding the month in which such Distribution Date occurs.
"Registered Certificates": Any Certificate that has been registered
under the Securities Act.
"Reimbursement Rate": The rate per annum applicable to the accrual
of Advance Interest, which rate per annum shall be equal to the "prime rate" as
published in the "Money Rates" section of The Wall Street Journal, as such
"prime rate" may change from time to time. If The Wall Street Journal ceases to
publish such "prime rate", then the Trustee, in its sole discretion, shall
select an equivalent publication that publishes such "prime rate"; and if such
"prime rate" is no longer generally published or is limited, regulated or
administered by a governmental or quasi-governmental body, then the Trustee
shall select a comparable interest rate index. In either case, such selection
shall be made by the Trustee in its sole discretion and the Trustee shall notify
the Master Servicer and the Special Servicer in writing of its selection.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC Administrator": LaSalle Bank National Association, its
successor in interest, or any successor REMIC administrator appointed as herein
provided.
"REMIC I": A segregated pool of assets subject hereto and to be
administered hereunder, with respect to which a REMIC election is to be made,
consisting of: (i) the Mortgage Loans, other than the ES Component Mortgage Loan
and the SB Component Mortgage Loan, as from time to time are subject to this
Agreement and all payments under and proceeds of such Mortgage Loans received or
receivable after the Cut-off Date (other than payments of principal, interest
and other amounts due and payable on the Mortgage Loans on or before the Cut-off
Date), together with all documents, Escrow Payments and Reserve Funds delivered
or caused to be delivered hereunder by the Mortgage Loan Seller with respect to
such Mortgage Loans, (ii) the ES Component Mortgage Loan REMIC Senior Regular
Interest and the SB Component Mortgage Loan REMIC Senior Regular Interest; (iii)
any REO Property acquired in respect of a Mortgage Loan (other than in respect
of the ES Component Mortgage Loan and the SB Component Mortgage Loan) and all
payments and proceeds of such REO Property; (iv) the rights of the Depositor
under Sections 2, 3, 4, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 of the
Mortgage Loan Purchase and Sale Agreement with respect to such Mortgage Loans
and (v) such amounts on or with respect to clauses (i) or (iii) as from time to
time are deposited in the Distribution Account, the Certificate Account, the
Interest Reserve Account and the REO Account (if established) and the Excess
Liquidation Proceeds Account (if established).
"REMIC I Distribution Account": The segregated account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.04, which shall be entitled "LaSalle Bank National
Association, as Trustee, in trust for Holders of Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2003-1,
REMIC I Distribution Account" and which account shall be an Eligible Account and
a sub-account of the Distribution Account.
"REMIC I Principal Balance": The principal amount of any REMIC I
Regular Interest outstanding as of any date of determination. As of the Closing
Date, the REMIC I Principal Balance of each REMIC I Regular Interest shall equal
the initial REMIC I Principal Balance as set forth in the Preliminary Statement
hereto. On each Distribution Date, the REMIC I Principal Balance of each REMIC I
Regular Interest shall be permanently reduced by all distributions of principal
deemed to have been made in respect of such REMIC I Regular Interest on such
Distribution Date pursuant to Section 4.01(a), and shall be further permanently
reduced on such Distribution Date by all Realized Losses and Additional Trust
Fund Expenses deemed to have been allocated thereto on such Distribution Date
pursuant to Section 4.04(b).
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I, as described in the Preliminary Statement hereto.
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest (other than REMIC I Regular Interest LWBA, REMIC I Regular Interest
LWBB, REMIC I Regular Interest LWBC and REMIC I Regular Interest LWBD) for any
Distribution Date, the Weighted Average Adjusted Net Mortgage Rate. With respect
to REMIC I Regular Interest LWBA, REMIC I Regular Interest LWBB, REMIC I Regular
Interest LWBC and REMIC I Regular Interest LWBD for any Distribution Date, the
related Class WB Pass-Through Rate.
"REMIC I Residual Interest": The sole class of "residual interests"
in REMIC I for purposes of the REMIC Provisions and evidenced by the Class R-I
Certificates.
"REMIC II": A segregated pool of assets subject hereto and to be
administered hereunder, and consisting of all of the REMIC I Regular Interests
and amounts distributed thereon as from time to time are held in the REMIC II
Distribution Account.
"REMIC II Certificate": Any Certificate, other than a Class R-I
Certificate, Class ES Certificate or Class SB Certificate.
"REMIC II Distribution Account": The segregated account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.04, which shall be entitled "LaSalle Bank National
Association, as Trustee, in trust for Holders of Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2003-1,
REMIC II Distribution Account" and which account shall be an Eligible Account
and a sub-account of the Distribution Account.
"REMIC II Regular Certificate": Any REMIC II Certificate, other than
a Class R-II Certificate or Class WB Certificate.
"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, which income,
subject to the terms and conditions of that Section of the Code in its present
form, does not include:
(a) except as provided in Section 856(d)(4) or (6) of the Code, any
amount received or accrued, directly or indirectly, with respect to such
REO Property, if the determination of such amount depends in whole or in
part on the income or profits derived by any Person from such property
(unless such amount is a fixed percentage or percentages of receipts or
sales and otherwise constitutes Rents from Real Property);
(b) any amount received or accrued, directly or indirectly, from any
Person if the Trust Fund owns directly or indirectly (including by
attribution) a ten percent or greater interest in such Person determined
in accordance with Sections 856(d)(2)(B) and (d)(5) of the Code;
(c) any amount received or accrued, directly or indirectly, with
respect to such REO Property if any Person Directly Operates such REO
Property;
(d) any amount charged for services that are not customarily
furnished in connection with the rental of property to tenants in
buildings of a similar class in the same geographic market as such REO
Property within the meaning of Treasury Regulations Section 1.856-4(b)(1)
(whether or not such charges are separately stated); and
(e) rent attributable to personal property unless such personal
property is leased under, or in connection with, the lease of such REO
Property and, for any taxable year of the Trust Fund, such rent is no
greater than 15 percent of the total rent received or accrued under, or in
connection with, the lease.
"REO Account": The Pool REO Account and/or a Loan Pair REO Account,
as applicable.
"REO Acquisition": The acquisition of an REO Property for federal
income tax purposes pursuant to Treasury Regulations Section 1.856-6.
"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 acquired in respect of any
Mortgage Loan or in the case of a Loan Pair, any of the Loans comprising such
Loan Pair. Each REO Loan shall be deemed to provide for monthly payments of
principal and/or interest equal to its Assumed Monthly Payment and otherwise to
have the same terms and conditions as the predecessor Mortgage Loan. Each REO
Loan shall be deemed to have an initial unpaid principal balance and Stated
Principal Balance equal to the unpaid principal balance and Stated Principal
Balance, respectively, of the predecessor Mortgage Loan as of the date of the
related REO Acquisition. In addition, all Monthly Payments (other than any
Balloon Payment), Assumed Monthly Payments (in the case of a Balloon Loan
delinquent in respect of its Balloon Payment) and other amounts due and owing,
or deemed to be due and owing, in respect of the predecessor Mortgage Loan as of
the date of the related REO Acquisition, shall be deemed to continue to be due
and owing in respect of an REO Loan. All amounts payable or reimbursable to the
Master Servicer, the Special Servicer, the Trustee and/or the Fiscal Agent in
respect of the related Mortgage Loan as of the date of the related REO
Acquisition, including, without limitation, any unpaid Servicing Fees and any
unreimbursed Advances, together with any Advance Interest accrued and payable to
the Master Servicer, the Special Servicer, the Trustee and/or the Fiscal Agent
in respect of such Advances, shall continue to be payable or reimbursable to the
Master Servicer, the Special Servicer, the Trustee and/or the Fiscal Agent as
the case may be, in respect of an REO Loan. If the Loans comprising the
Wellbridge A/B Mortgage Loan become REO Loans, amounts received by the Trust
with respect to such REO Loans shall be applied to amounts due and owing in
respect of such REO Loans as provided in Section 4 of the Wellbridge Co-Lender
Agreement and, if the Loans comprising any CBA A/B Mortgage Loan become REO
Loans, amounts received by the Trust with respect to such REO Loans shall be
applied to amounts due and owing in respect of such REO Loans as provided in
Section 4 of related CBA Co-Lender Agreement.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of the Trustee for the benefit of the Certificateholders
(and, in the case of a related Mortgaged Property securing a Loan Pair, for the
benefit of the Certificateholders and the related Companion Loan Noteholders, as
their interests may appear) pursuant to Section 3.09 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 Loan.
"REO Revenues": All income, rents, profits and proceeds derived from
the ownership, operation or leasing of any REO Property.
"Replacement Mortgage Loan" shall mean any mortgage loan that is
substituted by the Mortgage Loan Seller for a Defective Mortgage Loan as
contemplated by Section 2.03.
"Request for Release": A request for release signed by a Servicing
Officer of, as applicable, the Master Servicer or Special Servicer in the form
of Exhibit D attached hereto.
"Request for Review": A request for review signed by a Servicing
Officer of, as applicable, the Master Servicer or Special Servicer in the form
of Exhibit H attached hereto.
"Required Appraisal Loan": As defined in Section 3.19(b).
"Required Claims-Paying Ratings": With respect to any insurance
carrier, claims-paying ability ratings at least equal to the following minimum
ratings assigned to such carrier by at least one of the other following parties
and, in any event, by each Rating Agency that assigned a rating to the
claims-paying ability of such insurance carrier: Fitch ("A" or better), S&P ("A"
or better) and A.M. Best ("A: VIII" or better) or any insurance carrier backed
or guaranteed by an insurer with such required ratings; provided, however, that
a rating by A.M. Best shall be disregarded and shall not be applicable as one of
the two required ratings except with respect to a fidelity bond or errors and
omissions insurance maintained by a Sub-Servicer and then only to the extent in
force as of the Closing Date. Notwithstanding the preceding sentence, an
insurance carrier with lower or fewer claims-paying ability ratings shall be
deemed to have the "Required Claims-Paying Ratings" if the applicable Rating
Agency has confirmed in writing that such insurance carrier shall not result, in
and of itself, in a downgrading, withdrawal or qualification (if applicable) of
the then current rating assigned by such Rating Agency to any Class of
Certificates, unless, with respect to policies maintained by borrowers, a higher
claims-paying ability rating is required under any of the Mortgage Loan
documents.
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Loan, any amounts delivered by
the related Mortgagor (and not previously disbursed) to be held in escrow by or
on behalf of the mortgagee representing reserves for principal and interest
payments, repairs, replacements, capital improvements (including, without
limitation, tenant improvements and leasing commissions), and/or environmental
testing and remediation with respect to the related Mortgaged Property.
"Residual Certificate": Any Class R-I or Class R-II Certificate.
"Resolution Extension Period": The 90-day period following the end
of the applicable Initial Resolution Period.
"Responsible Officer": When used with respect to the Trustee, any
officer assigned to the Corporate Trust Services Group, any vice president, any
assistant vice president, any assistant secretary, any assistant treasurer, or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers to whom a particular
matter is referred by the Trustee because of such officer's knowledge of and
familiarity with the particular subject. When used with respect to any
Certificate Registrar (other than the Trustee), any officer or assistant officer
thereof.
"S&P": Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or its successor 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 Master Servicer, the Special Servicer, the REMIC Administrator and
the Fiscal Agent, and specific ratings of Standard & Poor's Ratings Services, a
division of the XxXxxx-Xxxx Companies, Inc. herein referenced shall be deemed to
refer to the equivalent ratings of the party so designated.
"Xxxxxxxx-Xxxxx Certification": As defined in Section 8.13.
"SB Component Mortgage Loan": The Mortgage Loan identified on the
Mortgage Loan Schedule as Loan No. 57081.
"SB Component Mortgage Loan Accrued Component Interest": In respect
of the SB Component Mortgage Loan Components for each Distribution Date an
amount equal to one calendar month's interest at the applicable interest rate
for each SB Component which in the case of the SB Senior Component is equal to
5.18338217287389% per annum and in the case of the SB Component Mortgage Loan
SB-A Component, the SB Component Mortgage Loan SB-B Component, the SB Component
Mortgage Loan SB-C Component, the SB Component Mortgage Loan SB-D Component and
the SB Component Mortgage Loan SB-E Component, respectively, is equal to the
Pass-Through Rate of the Class SB-A, Class SB-B, Class SB-C, Class SB-D and
Class SB-E Certificates, respectively.
"SB Component Mortgage Loan Available Distribution Amount": With
respect to the SB Component Mortgage Loan and any Distribution Date, an amount
equal to (a) the balance on deposit in the Distribution Account as of 11:30 a.m.
(New York City time) on such Distribution Date (or such later time on such date
as of which distributions are made on the Certificates) relating to the SB
Component Mortgage Loan, any P&I Advances made by the Master Servicer, the
Trustee or the Fiscal Agent to cover uncollected Monthly Payments due and/or
Assumed Monthly Payments deemed due during the related Collection Period with
respect to the SB Component Mortgage Loan, and any Compensating Interest
Payments made by the Master Servicer to cover Prepayment Interest Shortfalls
incurred during the related Collection Period with respect to the SB Component
Mortgage Loan, and for the Distribution Date occurring in each March, the
related Withheld Amounts remitted to the Distribution Account pursuant to
Section 4.05 with respect to the SB Component Mortgage Loan, net of (b) any
portion of the amounts described in clause (a) of this definition that
represents one or more of the following: (i) collected Monthly Payments with
respect to the SB Component Mortgage Loan that are due on a Due Date following
the end of the related Collection Period, (ii) any payments of principal
(including, without limitation, Principal Prepayments) and interest, Liquidation
Proceeds and Insurance Proceeds received after the end of the related Collection
Period with respect to the SB Component Mortgage Loan, (iii) Prepayment
Premiums, (iv) any amounts payable or reimbursable to any Person from the
Distribution Account pursuant to any of clauses (ii) through (vi) of Section
3.05(b), (v) any amounts deposited in the Distribution Account in error, (vi)
any amounts payable or reimbursable to any Person from the Certificate Account
pursuant to clauses (ii) through (xx) of Section 3.05(a), and (vii) with respect
to the SB Component Mortgage Loan and any Distribution Date relating to the one
(1) month period preceding the Distribution Date in each February (and in any
January of a year which is not a leap year), an amount equal to the related
Withheld Amount pursuant to Section 4.05; and (c) provided that the SB Component
Mortgage Loan Available Distribution Amount for the Final Distribution Date
shall be calculated without regard to clauses (b)(i) and (b)(ii) of this
definition.
"SB Component Mortgage Loan Component": Each of the SB Component
Mortgage Loan Senior Component, the SB Component Mortgage Loan SB-A Component,
the SB Component Mortgage Loan SB-B Component, the SB Component Mortgage Loan
SB-C Component, the SB Component Mortgage Loan SB-D Component and the SB
Component Mortgage Loan SB-E Component.
"SB Component Mortgage Loan Component Principal Entitlement": In the
absence of a monetary event of default or other material event of default under
the SB Component Mortgage Loan principal will be paid on the SB Component
Mortgage Loan Senior Component and the SB Component Mortgage Loan SB-A
Component, SB Component Mortgage Loan SB-B Component, SB Component Mortgage Loan
SB-C Component, SB Component Mortgage Loan SB-D Component and SB Component
Mortgage Loan SB-E Component, pro rata (in accordance with their respective
outstanding principal balances). If any event of default described in the prior
sentence exists with respect to the SB Component Mortgage Loan, principal will
be paid first to the SB Component Mortgage Loan Senior Component until its
outstanding principal balance is reduced to zero and then sequentially to each
of the SB Component Mortgage Loan SB-A Component, SB Component Mortgage Loan
SB-B Component, SB Component Mortgage Loan SB-C Component, SB Component Mortgage
Loan SB-D Component and SB Component Mortgage Loan SB-E Component until the
principal balance of each such Component is reduced to zero. Accordingly, the
"SB Component Mortgage Loan Component Principal Entitlement" with respect to any
SB Component is (a) prior to the occurrence of any monetary event of default or
other material event of default under the SB Component Mortgage Loan, an amount
equal to such SB Component's pro rata share of the SB Component Mortgage Loan
Principal Distribution Amount and (b) after the occurrence of any monetary event
of default or other material event of default under the SB Component Mortgage
Loan, an amount equal to the lesser of (i) the outstanding principal balance of
such SB Component and (ii) the portion of the Class SB Component Mortgage Loan
Principal Distribution Amount remaining after giving effect to all distributions
of higher priority on such Distribution Date.
"SB Component Mortgage Loan Current Principal Distribution Amount":
For any Distribution Date will, in general, equal the aggregate of the
following:
(i) the principal portions of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments due or deemed
due, as the case may be, in respect of the SB Component Mortgage
Loan for the related Due Date occurring during the related
Collection Period;
(ii) all Principal Prepayments received on the SB Component
Mortgage Loan during the related Collection Period;
(iii) with respect to the SB Component Mortgage Loan if its
Stated Maturity Date occurred during or prior to the related
Collection Period, any payment of principal (exclusive of any
Principal Prepayment and any amount described in clause (iv) below)
that was made by or on behalf of the related Mortgagor during the
related Collection Period, net of any portion of such payment that
represents a recovery of the principal portion of any Monthly
Payment (other than a Balloon Payment) due, or the principal portion
of any Assumed Monthly Payment deemed due, in respect of the SB
Component Mortgage Loan on a Due Date during or prior to the related
Collection Period and not previously recovered;
(iv) all Liquidation Proceeds (net of Liquidation Expenses)
and Insurance Proceeds received on or in respect of the SB Component
Mortgage Loan during the related Collection Period that were
identified and applied by the Master Servicer as recoveries of
principal thereof, in each case net of any portion of such amounts
that represents a recovery of the principal portion of any Monthly
Payment (other than a Balloon Payment) due, or the principal portion
of any Assumed Monthly Payment deemed due, in respect of the SB
Component Mortgage Loan on a Due Date during or prior to the related
Collection Period and not previously recovered; and
(v) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance Proceeds and REO Revenues received on or in respect of the
Class SB Component Mortgage Loan during the related Collection
Period that were identified and applied by the Master Servicer as
recoveries of principal of the Class SB Component Mortgage Loan, in
each case net of any portion of such amounts that represents a
recovery of the principal portion of any Monthly Payment (other than
a Balloon Payment) due, or of the principal portion of any Assumed
Monthly Payment deemed due, in respect of the Class SB Component
Mortgage Loan on a Due Date during or prior to the related
Collection Period and not previously recovered.
"SB Component Mortgage Loan Principal Distribution Amount": With
respect to any Distribution Date, the aggregate of the SB Component Mortgage
Loan Current Principal Distribution Amount for such Distribution Date and, if
such Distribution Date is subsequent to the initial Distribution Date, the
excess, if any, of the SB Component Mortgage Loan Current Principal Distribution
Amount for the preceding Distribution Date, over the aggregate distributions of
principal made on the SB Component Mortgage Loan Senior Component and the Class
SB Certificates on the preceding Distribution Date.
"SB Component Mortgage Loan REMIC Senior Regular Interest": A
separate non-certificated beneficial ownership interest in the Component
Mortgage Loan REMIC issued hereunder and designated as a "regular interest" in
the Component Mortgage Loan REMIC, as set forth in the Preliminary Statement
hereto.
"SB Component Mortgage Loan SB-A Component": One of the six SB
Component Mortgage Loan Components and that corresponds to the Class SB-A
Certificates.
"SB Component Mortgage Loan SB-B Component": One of the six SB
Component Mortgage Loan Components and that corresponds to the Class SB-B
Certificates.
"SB Component Mortgage Loan SB-C Component": One of the six SB
Component Mortgage Loan Components and that corresponds to the Class SB-C
Certificates.
"SB Component Mortgage Loan SB-D Component": One of the six SB
Component Mortgage Loan Components and that corresponds to the Class SB-D
Certificates.
"SB Component Mortgage Loan SB-E Component": One of the six SB
Component Mortgage Loan Components and that corresponds to the Class SB-E
Certificates.
"SB Component Mortgage Loan Senior Balance": With respect to the SB
Component Mortgage Loan Senior Component, the principal balance of the SB
Component Mortgage Loan Senior Component outstanding from time to time which, as
of the Closing Date is equal to the amount set forth in the Preliminary
Statement. On each Distribution Date, the SB Component Mortgage Loan Senior
Balance shall be reduced by the amount of any distributions of principal
allocated to SB Component Mortgage Loan REMIC Senior Regular Interest on such
Distribution Date pursuant to Section 4.01(j)(ii) or 9.01, as applicable, and
shall be further reduced by the amount of any Realized Losses and Additional
Trust Fund Expenses incurred with respect to the SB Component Mortgage Loan
allocated to any Class of Sequential Pay Certificates on such Distribution Date
pursuant to Section 4.04. Distributions in respect of a reimbursement of
Realized Losses and Additional Trust Fund Expenses in respect of the SB
Component Mortgage Loan previously allocated to any Class of Sequential Pay
Certificates shall not constitute distributions of principal and shall not
result in reduction of the SB Component Mortgage Loan Senior Balance.
"SB Component Mortgage Loan Senior Component": One of the six SB
Component Mortgage Loan Components, represented by the SB Component Mortgage
Loan REMIC Senior Regular Interest.
"SB Component Mortgage Loan Senior Component Principal Distribution
Amount": As defined in Section 4.01(j)(ii).
"SB Component Mortgage Loan Subordinate Balance": With respect to
each SB Component Mortgage Loan Subordinate Component, the aggregate principal
amount of SB Component Mortgage Loan Subordinate Components outstanding from
time to time which, on any date, shall equal the Class Principal Balance of the
Corresponding Class SB Certificates on such date. On each Distribution Date,
such SB Component Mortgage Loan Subordinate Balance shall be reduced by the
amount of any distributions of principal allocated to the Corresponding Class SB
Certificates on such Distribution Date pursuant to Section 4.01(i)(v), (viii),
(xi), (xiv), (xvii) or 9.01, as applicable, and shall be further reduced by the
amount of any Realized Losses and Additional Trust Fund Expenses incurred with
respect to the SB Component Mortgage Loan allocated to the Corresponding Class
of Class SB Certificates on such Distribution Date pursuant to Section 4.04(a).
"SB Component Mortgage Loan Subordinate Component": Any of the
undivided subordinate ownership interests in the Component Mortgage Loan REMIC
represented by each of the Class SB-A, Class SB-B, Class SB-C, Class SB-D and
Class SB-E Certificates.
"SB Control Appraisal Period": If the outstanding aggregate
principal balance of all of the SB Subordinate Components of the SB Component
Mortgage (net of any Appraisal Reduction Amounts, principal payments, Realized
Losses and unreimbursed Additional Trust Fund Expenses) is less than 25% of its
original principal balance.
"SB Controlling Class": As of any date of determination, the
outstanding Class of Class SB Certificates with the lowest payment priority that
has a then outstanding Certificate Balance at least equal to 25% of its initial
Certificate Balance (or, if no Class of Class SB Certificates has a Certificate
Balance at least equal to 25% of its initial Certificate Balance, then the SB
Controlling Class shall be the outstanding Class of Class SB Certificates with
the then largest outstanding Class principal balance). The SB Controlling Class
as of the Delivery Date will be the Class SB-E Certificates.
"SB Controlling Class Holder": As defined in Section 3.29.
"SB Controlling Holder": With respect to any date of determination
(a) prior to the occurrence of a SB Control Appraisal Period, the SB Controlling
Class Holder and (b) during the occurrence and the continuance of a SB Control
Appraisal Period, the Directing Certificateholder.
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Loan, any security
agreement, chattel mortgage or similar document or 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 Loan.
"Senior Certificate": Any Class A-1, Class A-2, Class XC, Class XP-1
and Class XP-2 Certificate.
"Senior Principal Distribution Cross-Over Date": The first
Distribution Date as of which the aggregate Class Principal Balance of the Class
A-1 Certificates and Class A-2 Certificates outstanding immediately prior to
such Distribution Date exceeds the sum of (a) the aggregate Stated Principal
Balance of the Mortgage Pool (less the aggregate ES Component Mortgage Loan
Subordinate Component Balance of the ES Component Mortgage Loan Subordinate
Components, the aggregate SB Component Mortgage Loan Subordinate Component
balance of the SB Component Mortgage Loan Subordinate Components and the then
outstanding principal balance of the Wellbridge Note B Loan) that will be
outstanding immediately following such Distribution Date, plus (b) the lesser of
(i) the Principal Distribution Amount for such Distribution Date and (ii) the
portion of the Available Distribution Amount for such Distribution Date that
will remain after the distributions of interest to be made on the Class A-1
Certificates and Class A-2 Certificates on such Distribution Date have been so
made.
"Sequential Pay Certificate": Any 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 O or Class P Certificate.
"Servicer Reports": As defined in Section 4.02 (a).
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": Subject to Section 3.19(d), all customary,
reasonable and necessary "out of pocket" costs and expenses incurred or to be
incurred, as the context requires, by the Master Servicer or, with respect to
the Specially Serviced Loans, by the Master Servicer at the direction of the
Special Servicer or by the Special Servicer (or, if applicable, the Trustee or
the Fiscal Agent) in connection with the servicing of a Loan after a default,
delinquency or other unanticipated event, or in connection with the
administration of any REO Property, including, but not limited to, the cost of
(a) compliance with the obligations of the Master Servicer set forth in Sections
3.03(c) and 3.09, (b) the preservation, insurance, restoration, protection and
management of a Mortgaged Property, (c) obtaining any Liquidation Proceeds or
Insurance Proceeds in respect of any Loan or REO Property, (d) any enforcement
or judicial proceedings with respect to a Mortgaged Property, including, without
limitation, foreclosures, and (e) the operation, management, maintenance and
liquidation of any REO Property; provided that notwithstanding anything herein
to the contrary, "Servicing Advances" shall not include allocable overhead of
the Master Servicer or the Special Servicer, such as costs for office space,
office equipment, supplies and related expenses, employee salaries and related
expenses and similar internal costs and expenses, or costs incurred by either
such party in connection with its purchase of any Loan or REO Property pursuant
to any provision of this Agreement. All Emergency Advances made by the Master
Servicer at the direction of the Special Servicer hereunder shall be considered
"Servicing Advances" for the purposes hereof.
"Servicing Fees": With respect to each Mortgage Loan and REO Loan,
the Master Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents (other than documents required to be
part of the related Mortgage File), including, without limitation, the related
Phase I Environmental Site Assessment in the possession of the Master Servicer
or the Special Servicer and relating to the origination and servicing of any
Mortgage Loan or the administration of any REO Property.
"Servicing Officer": Any officer or authorized signatory of the
Master Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of Mortgage Loans, whose name and specimen
signature appear on a list of such officers and authorized signatories furnished
by such party to 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(d).
"Servicing Retained Bid": As defined in Section 7.01(d).
"Servicing Return Date": With respect to any Corrected Loan, the
date that servicing thereof is returned by the Special Servicer to the Master
Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master Servicer
and the Special Servicer subject to applicable law and the express terms of the
relevant Mortgage Loans and in the case of a Loan Pair, the related Co-Lender
Agreement, to service and administer the Loans and any REO Properties for which
such Person is responsible hereunder: (a) with the same care, skill, prudence
and diligence as is normal and usual in its general mortgage servicing and REO
property management activities on behalf of third parties or on behalf of
itself, whichever is higher, with respect to mortgage loans and REO properties
that are comparable to those for which it is responsible hereunder; (b) with a
view to the timely collection of all scheduled payments of principal and
interest under the Loans, the full collection of all Prepayment Premiums that
may become payable under the Loans and, in the case of the Special Servicer, if
a Loan comes into and continues in default and if, in the good faith and
reasonable judgment of the Special Servicer, no satisfactory arrangements can be
made for the collection of the delinquent payments (including payments of
Prepayment Premiums), the maximization of the recovery on such Loan to the
Certificateholders, and, in the case of a Loan Pair, on behalf of the related
Companion Loan Noteholders as a collective whole, on a net present value basis;
and (c) without regard to: (i) any known relationship that the Master Servicer
(or any Affiliate thereof) or the Special Servicer (or any Affiliate thereof),
as the case may be, may have with the related Mortgagor or with any other party
to this Agreement; (ii) the ownership of any Certificate or Companion Loan by
the Master Servicer (or any Affiliate thereof) or the Special Servicer (or any
Affiliate thereof), as the case may be; (iii) the obligation of the Master
Servicer to make Advances, (iv) the obligation of the Special Servicer to make,
or direct the Master Servicer to make, Servicing Advances; (v) the right of the
Master Servicer (or any Affiliate thereof) or the Special Servicer (or any
Affiliate thereof), as the case may be, to receive reimbursement of costs, or
the sufficiency of any compensation payable to it, hereunder or with respect to
any particular transaction; or (vi) any ownership, servicing and/or management
by the Master Servicer (or any Affiliate thereof) or the Special Servicer (or
any Affiliate thereof), as the case may be, of any other mortgage loans or real
property.
"Servicing Transfer Event" shall mean, with respect to any Loan or
Loan Pair, any of the following events:
(a) the related Mortgagor has failed to make when due any Monthly
Payment (including a Balloon Payment) or any other payment required under
the related Mortgage Loan documents, which failure continues, or the
Master Servicer determines, in its reasonable, good faith judgment, will
continue, unremedied (i) except in the case of a delinquent Balloon
Payment, for 60 days beyond the date on which the subject payment was due,
and (ii) solely in the case of a delinquent Balloon Payment, for one
Business Day beyond the related maturity date or, if the related Mortgagor
has delivered to the Master Servicer, on or before the related maturity
date, a refinancing commitment reasonably acceptable to the Master
Servicer, for such longer period, not to exceed 60 days beyond the related
maturity date, during which the refinancing would occur; or
(b) the Master Servicer has determined, in its reasonable, good
faith judgment, that a default in the making of a Monthly Payment
(including a Balloon Payment) or any other material payment required under
the related Mortgage Loan documents is likely to occur within 30 days and
either (i) the related Mortgagor has requested a material modification of
the payment terms of the Loan or (ii) such default is likely to remain
unremedied for at least the period contemplated by clause (a) of this
definition; or
(c) the Master Servicer has determined, in its reasonable, good
faith judgment, that a default, other than as described in clause (a) or
(b) of this definition, has occurred that may materially impair the value
of the related Mortgaged Property as security for the Loan, which default
has continued unremedied for the applicable cure period under the terms of
the Loan (or, if no cure period is specified, for 60 days); or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary action against the
related Mortgagor 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, marshalling of assets
and liabilities or similar proceeding, or for the winding-up or
liquidation of its affairs, shall have been entered against the related
Mortgagor; or
(e) the related Mortgagor shall have consented to the appointment of
a conservator, receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceeding of or
relating to such Mortgagor or of or relating to all or substantially all
of its property; or
(f) the related Mortgagor shall have admitted in writing its
inability to pay its debts generally as they become due, filed a petition
to take advantage of any applicable insolvency or reorganization statute,
made an assignment for the benefit of its creditors, or voluntarily
suspended payment of its obligations; or
(g) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the
related Mortgaged Property.
A Servicing Transfer Event with respect to any Loan shall cease to
exist:
(w) in the case of the circumstances described in clause (a) above,
if and when the related Mortgagor has made three consecutive full and timely
Monthly Payments under the terms of such Mortgage Loan (as such terms may be
changed or modified in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or by reason of a modification, waiver or
amendment granted or agreed to by the Master Servicer or the Special Servicer
pursuant to Section 3.20);
(x) in the case of the circumstances described in clauses (b), (d),
(e) and (f) above, if and when such circumstances cease to exist in the
reasonable, good faith judgment of the Special Servicer;
(y) in the case of the circumstances described in clause (c) above,
if and when such default is cured in the reasonable, good faith judgment of the
Special Servicer; and
(z) in the case of the circumstances described in clause (g) above,
if and when such proceedings are terminated.
"Similar Law": As defined in Section 5.02(c).
"Single-Purpose Entity": A Person, other than an individual, whose
organizational documents provide that it is formed solely for the purpose of
owning the related Mortgaged Property, Mortgaged Properties securing other Loans
and assets incidental to the ownership and operation of such Mortgaged Property
or Properties, and which has agreed, either in such organizational documents or
the loan documents relating to any related Loan, that it (a) does not engage in
any business unrelated to such property and the financing thereof; (b) does not
have any indebtedness other than as permitted by the related Mortgage, (c)
maintains its own books, records and accounts, in each case which are separate
and apart from the books, records and accounts of any other Person; (d) conducts
business in its own name; (e) does not guarantee or assume the debts or
obligations of any other person; (f) does not commingle its assets or funds with
those of any other Person; (g) transacts business with affiliates on an arm's
length basis; and (h) holds itself out as being a legal entity separate and
apart from any other Person. In addition, such entity's organizational documents
provide that any dissolution and winding up or insolvency filing for such entity
requires either the unanimous consent of all partners or members, as applicable,
or the consent of an independent Person (whether as a partner, member, or
director in such entity or in any Person that is the managing member or general
partner of such entity or otherwise), and either such organizational documents
or the terms of the mortgage loan documents provide that such organizational
documents may not be amended without the consent of the lender as regards such
single-purpose entity requirements.
"Single Certificate": For purposes of Section 4.02(a), a Certificate
of any Class of REMIC II Regular Certificates, Class ES Certificates, Class SB
Certificates or Class WB Certificates evidencing a $1,000 denomination or, in
the case of a Class X Certificate, a 100% Percentage Interest.
"Special Servicer": Midland Loan Services, Inc., its successor in
interest, or any successor special servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Loan and each REO Loan, the fee designated as such and payable to the Special
Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Loan and each REO Loan, 0.25% (25 basis points) per annum.
"Specially Serviced Loan": Any Loan as to which there then exists a
Servicing Transfer Event. Upon the occurrence of a Servicing Transfer Event with
respect to any Loan, such Loan shall remain a Specially Serviced Loan until the
earliest of (i) its removal from the Trust Fund, (ii) an REO Acquisition with
respect to the related Mortgaged Property, and (iii) the cessation of all
existing Servicing Transfer Events with respect to such Loan.
"Startup Day": With respect to each of the Component Mortgage Loan
REMIC, REMIC I and REMIC II, the day designated as such in Section 10.01(c).
"Stated Maturity Date": With respect to any Loan, the Due Date on
which the last payment of principal is due and payable under the terms of the
related Mortgage Note as in effect on the Closing Date, without regard to any
change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Loan granted or agreed to by the Master Servicer or Special
Servicer pursuant to Section 3.20.
"Stated Principal Balance": With respect to any Mortgage Loan (and
any successor REO Loan), a principal amount initially equal to the Cut-off Date
Balance of such Mortgage Loan, that is permanently reduced on each Distribution
Date (to not less than zero) by (i) all payments (or P&I Advances in lieu
thereof) of, and all other collections allocated as provided in Section 1.02 to,
principal of or with respect to such Mortgage Loan (or successor REO Loan) that
are (or, if they had not been applied to cover any Additional Trust Fund
Expense, would have been) distributed to Certificateholders on such Distribution
Date, and (ii) the principal portion of any Realized Loss incurred in respect of
such Mortgage Loan (or successor REO Loan) during the related Collection Period.
With respect to any Companion Loan (and any successor REO Loan), a principal
amount initially equal to the Cut-off Date Balance of such Companion Loan, that
is permanently reduced (to not less than zero) by (i) all payments (or P&I
Advances in lieu thereof) of, and all other collections allocated as provided in
Section 1.02 to, principal of or with respect to such Companion Loan (or
successor REO Loan) that are (or, if they had not been applied to cover any
Additional Trust Fund Expense, would have been) distributed to the related
Companion Loan Noteholders, and (ii) the principal portion of any Realized Loss
incurred in respect of such Companion Loan (or successor REO Loan) during the
related Collection Period. Notwithstanding the foregoing, if a Liquidation Event
occurs in respect of any Loan or REO Property, then the "Stated Principal
Balance" of such Mortgage Loan or of the related REO Loan, as the case may be,
shall be zero commencing as of the Distribution Date in the Collection Period
next following the Collection Period in which such Liquidation Event occurred.
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicer Termination Compensation": As defined in Section
3.22(d).
"Sub-Servicer Termination Fee": As defined in Section 3.22(d).
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, on the one hand, and any Sub-Servicer, on the
other hand as provided in Section 3.22, as the same may be modified or amended.
"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 O
or Class P Certificate or a Residual Certificate.
"Substitution Shortfall Amount": An amount equal to the excess if
any of the difference between the Purchase Price of the Deleted Mortgage Loan
calculated as of the date of substitution and the Stated Principal Balance of
such Qualifying Substitute Mortgage Loan as of the date of substitution.
"Successful Bidder": As defined in Section 7.01(d).
"Tax Matters Person": With respect to each of the Component Mortgage
Loan REMIC, REMIC I and REMIC II, the Person designated as the "tax matters
person" of such REMIC in the manner provided under Treasury Regulations Section
1.860F-4(d) and Treasury Regulations Section 301.6231(a)(7)-1. The "Tax Matters
Person" for each of the Component Mortgage Loan REMIC, REMIC I and REMIC II is
the Holder of Certificates evidencing the largest Percentage Interest in the
related Class of Residual Certificates.
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of the Component Mortgage Loan REMIC, REMIC I and
REMIC II due to its classification as a REMIC under the REMIC Provisions,
together with any and all other information, reports or returns that may be
required to be furnished to the Certificateholders or filed with the Internal
Revenue Service or any other governmental taxing authority under any applicable
provisions of federal or Applicable State Law.
"Termination Strip": As defined in Section 3.22(d).
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section
5.02(d)(i)(B).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust": The common law trust created hereby.
"Trust Fund": Collectively, all of the assets of the Component
Mortgage Loan REMIC, REMIC I and REMIC II.
"Trustee": LaSalle Bank National Association, in its capacity as
Trustee hereunder, its successor in interest, or any successor trustee appointed
as herein provided.
"Trustee Fee": The fee payable to the Trustee on each Distribution
Date for its services as Trustee hereunder, in an aggregate amount equal to one
(1) month's interest at the Trustee Fee Rate in respect of each Loan and REO
Loan, calculated on the Stated Principal Balance as of the Due Date in the
immediately preceding Collection Period and for the same number of days (i.e.,
on the basis of, as applicable, a 360-day year consisting of twelve (12) thirty
(30) day months or the actual number of days elapsed during each calendar month
in a 360-day year) respecting which any related interest payment due on such
Loan or deemed to be due on such REO Loan is computed under the terms of the
related Mortgage Note (as such terms may be changed or modified at any time
following the Closing Date) and applicable law.
"Trustee Fee Rate": A rate of 0.0020% per annum.
"Trustee's Website": The website maintained by the Trustee and
initially located at "xxx.xxxxxxxx.xxx", or at such other address as the Trustee
may designate from time to time.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed (if
required by the UCC) and filed pursuant to the Uniform Commercial Code, as in
effect in the relevant jurisdiction.
"UCC-1", "UCC-2" and "UCC-3": UCC financing statements on Form
UCC-1, Form UCC-2 and Form UCC-3, respectively.
"Uncertificated Accrued Interest": With respect to the ES Component
Mortgage Loan REMIC Senior Regular Interest or SB Component Mortgage Loan REMIC
Senior Regular Interest, for any Distribution Date, one (1) month's interest at
the interest rate applicable to such ES Component Mortgage Loan REMIC Senior
Regular Interest or SB Component Mortgage Loan REMIC Senior Regular Interest, as
applicable, for such Distribution Date, accrued on the Uncertificated Principal
Balance of such ES Component Mortgage Loan REMIC Senior Regular Interest or SB
Component Mortgage Loan REMIC Senior Regular Interest, as applicable,
outstanding immediately prior to such Distribution Date. With respect to any
REMIC I Regular Interest, for any Distribution Date, one (1) month's interest at
the REMIC I Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, accrued on the REMIC I Principal Balance of such REMIC I
Regular Interest outstanding immediately prior to such Distribution Date. The
Uncertificated Accrued Interest in respect of any ES Component Mortgage Loan
REMIC Senior Regular Interest, SB Component Mortgage Loan REMIC Senior Regular
Interest or REMIC I Regular Interest for any Distribution Date shall be deemed
to have accrued during the applicable Interest Accrual Period.
"Uncertificated Distributable Interest": With respect to any ES
Component Mortgage Loan REMIC Senior Regular Interest or SB Component Mortgage
Loan REMIC Senior Regular Interest for any Distribution Date, the Uncertificated
Accrued Interest in respect of such ES Component Mortgage Loan REMIC Senior
Regular Interest or SB Component Mortgage Loan REMIC Senior Regular Interest, as
applicable, for such Distribution Date, reduced (to not less than zero) by the
amount of Prepayment Interest Shortfalls, if any, for such Distribution Date,
that relate to the ES Component Mortgage Loan or SB Component Mortgage Loan, as
applicable, and are allocable to the REMIC II Regular Certificates in accordance
with the definition of "Distributable Certificate Interest" for such
Distribution Date. With respect to any REMIC I Regular Interest, for any
Distribution Date (other than REMIC I Regular Interest LWBA, REMIC I Regular
Interest LWBB, REMIC I Regular Interest LWBC and REMIC I Regular Interest LWBD),
the Uncertificated Accrued Interest in respect of such REMIC I Regular Interest
for such Distribution Date, reduced (to not less than zero) by the product of
(i) the Net Aggregate Prepayment Interest Shortfall, if any, for such
Distribution Date (other than to the extent allocable to the ES Component
Mortgage Loan subordinate components, the SB Component Mortgage Loan subordinate
components and the Wellbridge Note B Loan), multiplied by (ii) a fraction, the
numerator of which is the Uncertificated Accrued Interest in respect of such
REMIC I Regular Interest for such Distribution Date, and the denominator of
which is the aggregate Uncertificated Accrued Interest in respect of all the
REMIC I Regular Interests for such Distribution Date. With respect to REMIC I
Regular Interest LWBA, REMIC I Regular Interest LWBB, REMIC I Regular Interest
LWBC and REMIC I Regular Interest LWBD for any Distribution Date, interest
accrued at the related Class WB Pass-Through Rate less Prepayment Interest
Shortfalls allocated in respect of the Wellbridge Note B.
"Uncertificated Principal Balance": With respect to any ES Component
Mortgage Loan REMIC Senior Regular Interest or SB Component Mortgage Loan REMIC
Senior Regular Interest, (i) on or prior to the first Distribution Date, an
amount equal to the initial principal amount of such ES Component Mortgage Loan
REMIC Senior Regular Interest or SB Component Mortgage Loan REMIC Senior Regular
Interest 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
related ES Component Mortgage Loan Senior Balance or SB Component Mortgage Loan
Senior Balance, as applicable, on the Distribution Date immediately prior to
such date of determination.
"Underwriter": Each of Banc of America Securities LLC, Deutsche Bank
Securities Inc., Xxxxxxx, Xxxxx & Co. and Xxxxxx Xxxxxxx & Co. Incorporated.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in the applicable
Treasury regulations) created or organized in, or under the laws of, the United
States any State thereof or the District of Columbia, including an entity
treated as a corporation or partnership for federal income tax purposes, or 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 the trust and one or more such
U.S. Persons have the authority to control all substantial decisions of the
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).
"USPAP": The Uniform Standards of Professional Appraisal Practices.
"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, 98% of the Voting Rights shall be allocated among the Holders
of the various outstanding Classes of Sequential Pay Certificates in proportion
to the respective Class Principal Balances of their Certificates, and 2% of the
Voting Rights shall be allocated to the Holders of the Class X Certificates
(allocated, pro rata, between the Class XP and Class XC Certificates based upon
their Notional Amounts). Neither the Class R-I Certificates nor the Class R-II
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.
"WB Controlling Class": As of any date of determination, the
outstanding Class of Class WB Certificates with the lowest payment priority that
has a then outstanding Certificate Balance at least equal to 25% of its initial
Certificate Balance (or, if no Class of Class WB Certificates has a Certificate
Balance at least equal to 25% of its initial Certificate Balance, then the WB
Controlling Class shall be the outstanding Class of Class WB Certificates with
the then largest outstanding Class principal balance). The WB Controlling Class
as of the Delivery Date will be the Class WB-D Certificates.
"WB Controlling Class Holder": As defined in Section 3.29.
"Weighted Average Adjusted Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the respective Adjusted Net Mortgage
Rates for all the Mortgage Loans (in the case of the ES Component Mortgage Loan,
the ES Component Mortgage Loan Senior Component only, and in the case of the SB
Component Mortgage Loan, the SB Component Mortgage Loan Senior Component only),
other than the Wellbridge Note B Loan, and REO Loans, excluding any Companion
Loan which may be an REO Loan, weighted on the basis of the respective Stated
Principal Balances (less (a) with respect to the ES Component Mortgage Loan, the
Class Principal Balance of the Class ES Certificates and (b) with respect to the
SB Component Mortgage Loan, the Class Principal Balance of the Class SB
Certificates) of such Mortgage Loans and REO Loans outstanding immediately prior
to such Distribution Date.
"Wellbridge A/B Mortgage Loan": The Wellbridge Senior Note A-1,
together with the Wellbridge Senior Companion Notes and the Wellbridge Note B,
each of which is secured by the same Mortgage on the Wellbridge Mortgaged
Property. References herein to the Wellbridge A/B Mortgage Loan shall be
construed to refer to the aggregate indebtedness under the related Wellbridge
Senior Notes and the related Wellbridge Note B.
"Wellbridge Co-Lender Agreement": With respect to the Wellbridge A/B
Mortgage Loan, the related intercreditor and servicing agreement by and between
the holders of the Wellbridge Senior Notes and the holder of the Wellbridge Note
B relating to the relative rights of such holders of the Wellbridge Senior Notes
and Wellbridge Note B, as the same may be further amended from time to time in
accordance with the terms thereof.
"Wellbridge Companion Loan Noteholders": The holders of the Mortgage
Notes for the Wellbridge Senior Companion Notes.
"Wellbridge Companion Loan Securities": For so long as either (a)
the Wellbridge Senior Note A-1 or a successor REO Loan with respect to the
Wellbridge Senior Note A-1, or (b) the Wellbridge Note B or a successor REO Loan
with respect to the Wellbridge Note B is part of the Mortgage Pool, any class of
securities backed by the Wellbridge Senior Companion Notes.
"Wellbridge Control Appraisal Period": If the outstanding principal
balance of the Wellbridge Note B Loan (net of any Appraisal Reduction Amounts,
Principal payments, Realized Losses and unreimbursed Additional Trust Fund
Expenses)) is less than 25% of its original principal balance.
"Wellbridge Controlling Holder": With respect to any date of
determination (a) prior to the occurrence of a Wellbridge Control Appraisal
Period, the holder of the Wellbridge Note B Loan and (b) following the
occurrence and during the continuance of a Wellbridge Control Appraisal Period,
the Trust Fund.
"Wellbridge Mezzanine Intercreditor Agreement": That certain
Intercreditor Agreement, dated as of February 7, 2003 by and between Bank of
America and iStar Finance Sub V LLC.
"Wellbridge Mezzanine Lender": iStar Finance Sub V LLC, or its
permitted successors or assigns.
"Wellbridge Mezzanine Loan": That certain mezzanine loan related to
the Wellbridge A/B Mortgage which is evidenced by that certain loan agreement,
dated as of February 7, 2003 by and between WELL-MEZ (MULTI) LLC and the
Wellbridge Mezzanine Lender.
"Wellbridge Mortgage Loan": The Wellbridge Note A-1. The Mortgage
Loan is identified as Loan No. 56783 on the Mortgage Loan Schedule.
"Wellbridge Mortgaged Property": The fitness center properties which
secure the Wellbridge A/B Mortgage Loan.
"Wellbridge Non-Securitized Note": On any date of determination any
Wellbridge Note that is not included in a securitization or a collateralized
debt obligation in which interests in such Wellbridge Note are issued or
created. On the date hereof the Wellbridge Note A-2 and Wellbridge Note A-3 are
Wellbridge Non-Securitized Notes.
"Wellbridge Note": Each of the Wellbridge Senior Note A-1, the
Wellbridge Senior Companion Note A-2, Wellbridge Senior Companion Note A-3 and
the Wellbridge Note B.
"Wellbridge Note B": With respect to the Wellbridge A/B Mortgage
Loan, the related promissory note made by the Mortgagor under the Wellbridge A/B
Mortgage Loan and secured by the Mortgage on the Wellbridge Mortgaged Property
which is included in the Trust and is subordinate in right of payment to the
Wellbridge Senior Notes.
"Wellbridge Note B Holder": The holder of the Mortgage Note for the
Wellbridge Note B Loan.
"Wellbridge Note B Loan": The Wellbridge Note B.
"Wellbridge Noteholders": Collectively, the holders of the Mortgage
Notes for the Wellbridge Mortgage Loan, the Wellbridge Note B Holder and the
Wellbridge Senior Companion Loan Noteholders.
"Wellbridge Purchase Option Holder": The WB Controlling Class
Holder.
"Wellbridge Securitized Note": As defined in Section 4.03(f).
"Wellbridge Senior Companion Loan Noteholders": The holder or
holders of the Wellbridge Senior Companion Note A-2 and the Wellbridge Senior
Companion Note A-3.
"Wellbridge Senior Companion Note A-2": With respect to the
Wellbridge A/B Mortgage Loan, the related promissory note made by the Mortgagor
under the Wellbridge A/B Mortgage Loan and secured by the Mortgage on the
Wellbridge Mortgaged Property which is not included in the Trust and which is
senior in right of payment to the Wellbridge Note B and pari passu in right of
payment to the Wellbridge Senior Note A-1 and the Wellbridge Senior Companion
Note A-3.
"Wellbridge Senior Companion Note A-3": With respect to the
Wellbridge A/B Mortgage Loan, the related promissory note made by the Mortgagor
under the Wellbridge A/B Mortgage Loan and secured by the Mortgage on the
Wellbridge Mortgaged Property which is not included in the Trust and which is
senior in right of payment to the Wellbridge Note B and pari passu in right of
payment to the Wellbridge Senior Note A-1 Note and the Wellbridge Senior
Companion Note A-2.
"Wellbridge Senior Companion Notes": For so long as either: (a) the
Wellbridge Note A-1 or successor REO Loan with respect to the Wellbridge Note
A-1 and/or (b) the Wellbridge Note B or successor REO Loan with respect to the
Wellbridge Note B are part of the Mortgage Pool, the Wellbridge Senior Companion
Note A-2 and the Wellbridge Senior Companion Note A-3. The Wellbridge Senior
Companion Notes are not included in the Mortgage Pool.
"Wellbridge Senior Note A-1": With respect to the Wellbridge A/B
Mortgage Loan, the Mortgage Note included in the Trust (identified as Loan No.
56783 on the Mortgage Loan Schedule), which is senior in right of payment to the
Wellbridge Note B and which is pari passu in right of payment to the Wellbridge
Senior Companion Note A-2 and the Wellbridge Senior Companion Note A-3.
"Wellbridge Senior Notes": The Wellbridge Senior Note A-1, the
Wellbridge Senior Companion Note A-2 and the Wellbridge Senior Companion Note
A-3.
"Wellbridge Trust Mortgage Loan": Either of the Wellbridge Mortgage
Loan or the Wellbridge Note B Loan both of which are included in the Trust.
"Withheld Amounts": As defined in Section 4.05.
"Within Grace Period Loan": With respect to any Master Servicer
Remittance Date, any Loan having any Monthly Payment remaining unpaid past its
Due Date, as of the close of business on the Determination Date in the same
calendar month, but which is not delinquent past the applicable grace period for
such Monthly Payment as of the close of business on such Determination Date.
"Workout Fee": With respect to each Corrected Loan, the fee
designated as such and payable to the Special Servicer pursuant to the second
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Loan as to which
a Workout Fee is payable, 1.0% (100 basis points).
SECTION 1.02 Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts collected by or on behalf of the Trust in respect of
any Cross-Collateralized Group in the form of payments from Mortgagors,
Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds, shall be
applied among the Mortgage Loans constituting such Cross-Collateralized Group in
accordance with the express provisions of the related Mortgage Loan documents
and, in the absence of such express provisions, in accordance with the Servicing
Standard. All amounts collected by or on behalf of the Trust in respect of or
allocable to any particular Mortgage Loan in the form of payments from
Mortgagors, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds
shall be applied to amounts due and owing under the related Mortgage Note and
Mortgage (including for principal and accrued and unpaid interest) in accordance
with the express provisions of the related Mortgage Loan documents and, in the
absence of such express provisions or if and to the extent that such terms
authorize the lender to use its discretion, shall be applied: first, as a
recovery of any related and unreimbursed Servicing Advances and interest thereon
and, if applicable, unpaid related Liquidation Expenses and any outstanding
related Additional Trust Fund Expenses; second, as a recovery of accrued and
unpaid interest on such Mortgage Loan to, but not including, the date of receipt
by or on behalf of the Trust (or, in the case of a full Monthly Payment from any
Mortgagor, through the related Due Date); third, as a recovery of principal of
such Mortgage Loan then due and owing, including by reason of acceleration of
the Mortgage Loan following a default thereunder (or, if a Liquidation Event has
occurred in respect of such Mortgage Loan, as a recovery of principal to the
extent of its entire remaining unpaid principal balance); fourth, unless a
Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery
of amounts to be currently applied to the payment of, or escrowed for the future
payment of, real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items; fifth, unless a Liquidation Event has occurred in
respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then
required to be held in escrow; sixth, as a recovery of any Prepayment Premium
then due and owing under such Mortgage Loan; seventh, as a recovery of any
Default Charges then due and owing under such Mortgage Loan; eighth, as a
recovery of any assumption fees and modification fees then due and owing under
such Mortgage Loan; ninth, as a recovery of any other amounts then due and owing
under such Mortgage Loan other than remaining unpaid principal; and, tenth, as a
recovery of any remaining principal of such Mortgage Loan to the extent of its
entire remaining unpaid principal balance.
(b) Collections by or on behalf of the Trust in respect of each REO
Property, exclusive of amounts to be applied to the payment of the costs of
operating, managing, maintaining and disposing of such REO Property, shall be
treated: first, as a recovery of any related and unreimbursed Servicing Advances
and interest thereon and, if applicable, unpaid Liquidation Expenses; second, as
a recovery of accrued and unpaid interest on the related REO Loan to, but not
including, the Due Date in the Collection Period of receipt, by or on behalf of
the Trust, exclusive, however, of any portion of such accrued and unpaid
interest that constitutes Default Interest; third, as a recovery of principal of
the related REO Loan to the extent of its entire unpaid principal balance;
fourth, as a recovery of any Prepayment Premium or deemed to be due and owing in
respect of the related REO Loan; fifth, as a recovery of any Default Charges
deemed to be due and owing in respect of the related REO Loan; and, sixth, as a
recovery of any other amounts deemed to be due and owing in respect of the
related REO Loan.
(c) Insofar as amounts received in respect of any Mortgage Loan or
REO Property and allocable to shared fees and shared charges owing in respect of
such Mortgage Loan or the related REO Loan, as the case may be, that constitute
Additional Master Servicing Compensation payable to the Master Servicer and/or
Additional Special Servicing Compensation payable to the Special Servicer, are
insufficient to cover the full amount of such fees and charges, such amounts
shall be allocated between such of those fees and charges as are payable to the
Master Servicer, on the one hand, and such of those fees and charges as are
payable to the Special Servicer, on the other, pro rata in accordance with their
respective entitlements.
(d) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the Master Servicer and
reflected in the appropriate monthly report from the Master Servicer and in the
appropriate monthly Trustee Report as provided in Section 4.02.
If an expense under this Agreement relates in the reasonable
judgment of the Master Servicer, the Special Servicer or the Trustee, as
applicable, primarily to the administration of the Trust Fund, any REMIC formed
hereunder or to any determination respecting the amount, payment or avoidance of
any tax under the REMIC Provisions or the actual payment of any REMIC tax or
expense, or this Agreement states that any expense is solely "an expense of the
Trust Fund" or words of similar import, then such expense shall not be allocated
to, deducted or reimbursed from, or otherwise charged against any Companion Loan
Noteholder and such Companion Loan Noteholder shall not suffer any adverse
consequences as a result of the payment of such expense.
SECTION 1.03 Cross-Collateralized Mortgage Loans.
(a) Notwithstanding anything herein to the contrary, it is hereby
acknowledged that the groups of Mortgage Loans identified on the Mortgage Loan
Schedule as being cross-collateralized with each other are, in the case of each
such particular group of Mortgage Loans, by their terms, cross-defaulted and
cross-collateralized with each other. For purposes of reference only in this
Agreement, and without in any way limiting the servicing rights and powers of
the Master Servicer and/or the Special Servicer, with respect to any
Cross-Collateralized Mortgage Loan (or successor REO Loan), the Mortgaged
Property (or REO Property) that relates or corresponds thereto shall be the
property identified in the Mortgage Loan Schedule as corresponding thereto. The
provisions of this Agreement, shall be interpreted in a manner consistent with
this Section 1.03; provided that, if there exists with respect to any
Cross-Collateralized Group only one original of any document referred to in the
definition of "Mortgage File" covering all the Mortgage Loans in such
Cross-Collateralized Group, then the inclusion of the original of such document
in the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
SECTION 1.04 Incorporation of Preliminary Statement.
The parties hereto acknowledge that the Preliminary Statement at the
beginning of this Agreement constitutes a part of this Agreement.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law
trust be established pursuant to this Agreement and further such trust be
designated as "Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2003-1". LaSalle Bank National Association is
hereby appointed, and does hereby agree to act, as Trustee hereunder and, in
such capacity, to hold the Trust Fund in trust for the exclusive use and benefit
of all present and future Certificateholders. It is not intended that this
Agreement create a partnership or a joint-stock association.
(b) The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, sell, set over and otherwise convey to the
Trustee, in trust, without recourse, for the benefit of the Certificateholders
(and for the benefit of the other parties to this Agreement as their respective
interests may appear) all the right, title and interest of the Depositor, in, to
and under (i) the Mortgage Loans and all documents included in the related
Mortgage Files and Servicing Files, (ii) the Mortgage Loan Purchase and Sale
Agreement and (iii) all other assets included or to be included in the Trust
Fund. Such assignment includes (i) the Mortgage Loans as from time to time are
subject to this Agreement and all scheduled payments of principal and interest
under and proceeds of such Mortgage Loans received after the Cut-off Date (other
than payments of principal, interest and other amounts due and payable on the
Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong and be promptly remitted to the Depositor) together
with all documents delivered or caused to be delivered hereunder with respect to
such Mortgage Loans by the Mortgage Loan Seller; (ii) any REO Property acquired
in respect of a Mortgage Loan, and (iii) such funds or assets as from time to
time are deposited in the Certificate Account, the Distribution Account, the
REMIC I Distribution Account, the REMIC II Distribution Account, the Component
Mortgage Loan Distribution Account, the Interest Reserve Account, the Excess
Liquidation Proceeds Account and the REO Account (if established) and, in the
case of a Mortgage Loan included in a Loan Pair is subject to the related
Co-Lender Agreement. This conveyance is subject to the rights of the
Sub-Servicers pursuant to the Sub-Servicing Agreements which rights are subject
in any event to this Agreement.
Under United States generally accepted accounting principles, the
Depositor shall report: (i) its acquisition of the Mortgage Loans from the
Mortgage Loan Seller, pursuant to the Mortgage Loan Purchase and Sale Agreement,
as a purchase of such Mortgage Loans from the Mortgage Loan Seller; and (ii) its
transfer of the Mortgage Loans to the Trustee, pursuant to this Section 2.01(b),
as a sale of such Mortgage Loans to the Trustee. In connection with the
foregoing, the Depositor shall cause all of its records to reflect such
acquisitions as purchases and such transfer as a sale (in each case, as opposed
to a secured loan).
After the Depositor's transfer of the Mortgage Loans to the Trustee
pursuant to this Section 2.01(b), the Depositor shall not take any action
inconsistent with the Trust's ownership of the Mortgage Loans.
In connection with the Depositor's assignment pursuant to Section
2.01(b) above, the Depositor hereby represents and warrants that it has
contractually obligated the Mortgage Loan Seller, at the Mortgage Loan Seller's
expense, pursuant to the Mortgage Loan Purchase and Sale 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 and any Additional Collateral (other than Reserve Funds) for each Loan
acquired by the Depositor from the Mortgage Loan Seller. In addition, with
respect to each Loan under which any Additional Collateral is in the form of a
Letter of Credit as of the Closing Date, the Depositor hereby represents and
warrants that it has contractually obligated the Mortgage Loan Seller to cause
to be prepared, executed and delivered to the issuer of each such Letter of
Credit such notices, assignments and acknowledgments as are required under such
Letter of Credit to assign, without recourse, to the Trustee the Mortgage Loan
Seller's rights as the beneficiary thereof and drawing party thereunder;
provided that the originals of such letter of credit shall be delivered to the
Master Servicer. The Depositor shall deliver to the Trustee on or before the
Closing Date a fully executed counterpart of the Mortgage Loan Purchase and Sale
Agreement. None of the Trustee, the Fiscal Agent, any Custodian, the Master
Servicer or the Special Servicer shall be liable for any failure by any Mortgage
Loan Seller or the Depositor to comply with the document delivery requirements
of any Mortgage Loan Purchase and Sale Agreement and this Section 2.01(b).
The conveyance of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and is intended by the parties hereto
to constitute an absolute transfer of such Mortgage Loans and such other related
rights and property by the Depositor to the Trustee for the benefit of the
Certificateholders. Furthermore, it is not intended that such conveyance be a
pledge of security for a loan. If such conveyance is determined to be a pledge
of security for a loan, however, the Depositor and the Trustee intend that the
rights and obligations of the parties to such loan shall be established pursuant
to the terms of this Agreement. The Depositor and the Trustee also intend and
agree that, in such event, (i) this Agreement shall constitute a security
agreement under applicable law, (ii) the Depositor shall be deemed to have
granted to the Trustee (in such capacity) a first priority security interest in
all of the Depositor's right, title and interest in and to the assets
constituting the Trust Fund, including the Mortgage Loans subject hereto from
time to time, all principal and interest received on or with respect to such
Mortgage Loans after the Closing Date (other than scheduled payments of interest
and principal due and payable on such Mortgage Loans on or prior to the related
Due Date in April 2003 or, in the case of a Replacement Mortgage Loan, on or
prior to the related date of substitution), all amounts held from time to time
in the Certificate Account, the Distribution Account, the REMIC I Distribution
Account, the REMIC II Distribution Account, the Component Mortgage Loan
Distribution Account, the Interest Reserve Account, the Excess Liquidation
Proceeds Account, or the REO Account, and all reinvestment earnings on such
amounts, and all of the Depositor's right, title and interest under the Mortgage
Loan Purchase and Sale Agreement, (iii) the possession by the Trustee or its
agent of the Mortgage Notes with respect to the Mortgage Loans subject hereto
from time to time and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" or possession by a purchaser or person designated by such
secured party for the purpose of perfecting such security interest under
applicable law, and (iv) notifications to, and acknowledgments, receipts or
confirmations from, Persons holding such property, shall be deemed to be
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Trustee for the purpose
of perfecting such security interest under applicable law.
(c) As soon as reasonably possible, and in any event within 75 days
after the later of (i) the Closing Date (or, in the case of a Replacement
Mortgage Loan substituted as contemplated by Section 2.03, after the related
date of substitution) and (ii) the date on which all recording information
necessary to complete the subject document is received by the Trustee, the
Trustee shall complete (to the extent necessary), and shall submit for recording
or filing, as the case may be, in the appropriate office for real property
records or UCC Financing Statements, as applicable, each assignment of Mortgage
and assignment of Assignment of Leases in favor of the Trustee referred to in
clauses (iv) and (v) of the definition of "Mortgage File" that has been received
by the Trustee or a Custodian on its behalf and each original UCC-2 and UCC-3 in
favor of the Trustee referred to in clause (viii) of the definition of "Mortgage
File" that has been received by the Trustee or a Custodian on its behalf. Each
such assignment shall reflect that it should be returned by the public recording
office to the Trustee following recording, and each such UCC-2 and UCC-3 shall
reflect that the file copy thereof should be returned to the Trustee following
filing; provided that in those instances where the public recording office
retains the original assignment of Mortgage or assignment of Assignment of
Leases the Trustee shall obtain therefrom a certified copy of the recorded
original at the expense of the Mortgage Loan Seller. The Trustee may assume for
purposes of recordation of each UCC-2 and UCC-3, that the Mortgage File
containing the related UCC-1 includes one state level UCC Financing Statement
filing in the state of incorporation of the related Borrower for each Mortgaged
Property (or with respect to any Loan that has two or more related Borrowers,
the state of incorporation of each such Borrower). The Mortgage Loan Seller will
deliver to the Trustee the UCC Financing Statements, completed pursuant to
Revised Article 9 of the UCC, on the new national forms, in recordable form, to
be recorded pursuant to this Section 2.01(c). The Trustee will submit such UCC
Financing Statements for filing in the state of incorporation as so indicated on
the documents provided. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Trustee shall direct the Mortgage Loan Seller to prepare or cause to be prepared
promptly, pursuant to the Mortgage Loan Purchase and Sale Agreement, a
substitute therefor or cure such defect, as the case may be, and thereafter the
Trustee shall, upon receipt thereof, cause the same to be duly recorded or
filed, as appropriate with any re-recording, re-filing or rejection expenses at
the expense of the Mortgage Loan Seller. If the Mortgage Loan Seller has been so
notified and has not prepared a substitute document or cured such defect, as the
case may be, within 60 days, the Trustee shall promptly notify the Master
Servicer, the Special Servicer, the Rating Agencies, the Directing
Certificateholder, the ES Controlling Holder (if the ES Component Mortgage Loan
is involved), the SB Controlling Holder (if the SB Component Mortgage Loan is
involved), the related CBA B Note Holder (if the related CBA Mortgage Loan is
involved) (and the Trustee has knowledge of such Holder) or the Wellbridge
Controlling Holder and Wellbridge Companion Loan Noteholders (if a Wellbridge
Trust Mortgage Loan is involved) (and the Trustee has knowledge of such Holder).
The Mortgage Loan Seller shall be responsible for paying the reasonable fees and
out-of-pocket expenses of the Trustee in connection with the above-referenced
recording and filing of documents insofar as it relates to the Mortgage Loans
transferred by the Mortgage Loan Seller and acquired by the Depositor from the
Mortgage Loan Seller, all as more particularly provided for in the Mortgage Loan
Purchase and Sale Agreement.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor hereby represents and warrants that it has
contractually obligated the Mortgage Loan Seller, at the Mortgage Loan Seller's
expense, pursuant to the Mortgage Loan Purchase and Sale Agreement, to deliver
to and deposit with, or cause to be delivered to and deposited with, the Master
Servicer or its designee, on or before the Closing Date, the following items:
(i) asset summaries delivered to the Rating Agencies, originals or copies of all
financial statements, appraisals, environmental/engineering reports, leases,
rent rolls and tenant estoppels in the possession or under the control of the
Mortgage Loan Seller that relate to the Mortgage Loans transferred by the
Mortgage Loan Seller to the Depositor and, to the extent they are not required
to be a part of a Mortgage File in accordance with the definition thereof,
originals or copies of all documents, certificates, letters of credit and
opinions in the possession or under the control of the Mortgage Loan Seller that
were delivered by or on behalf of the related Mortgagors in connection with the
origination of such Loans and that are reasonably required for the ongoing
administration and servicing of such Loans; and (ii) all unapplied Reserve Funds
and Escrow Payments in the possession or under the control of the Mortgage Loan
Seller that relate to, and that are required for the ongoing administration and
servicing of, the Mortgage Loans transferred by the Mortgage Loan Seller to the
Depositor. The Master Servicer shall hold all such documents, records and funds
on behalf of the Trustee in trust for the benefit of the Certificateholders.
(e) In the event a Mortgage Loan is repurchased by the Mortgage Loan
Seller, the Trustee shall re-assign any rights that the Mortgage Loan Seller had
with respect to representations and warranties made by a third party originator
to the Mortgage Loan Seller under the Mortgage Loan Purchase and Sale Agreement
to the Mortgage Loan Seller in respect of any such Mortgage Loan.
SECTION 2.02 Acceptance of the Component Mortgage Loan REMIC and
REMIC I by Trustee.
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt by it or a Custodian on its behalf of, subject to the
provisions of Section 2.01 and to the further review provided for in this
Section 2.02, and further subject to the Schedule of Exceptions attached hereto
as Schedule III, of, with respect to each Mortgage Loan, an original Mortgage
Note endorsed to the Trustee and declares that it or a Custodian on its behalf
holds and will hold the documents delivered or caused to be delivered by the
Mortgage Loan Seller in respect of the Mortgage Loans, and that it holds and
will hold all other assets included in the Component Mortgage Loan REMIC and
REMIC I in trust for the exclusive use and benefit of all present and future
Certificateholders and the Trustee as holder of the Component Mortgage Loan
REMIC Senior Regular Interests and the REMIC I Regular Interests. To the extent
that the Mortgage File for a Mortgage Loan included in a Loan Pair relates to a
Companion Loan, the Trustee shall also hold such Mortgage File for the use and
benefit of the related Companion Loan Noteholders.
(b) On or about the 75th day following the Closing Date (and, if any
exceptions are noted or if the recordation/filing contemplated by Section
2.01(c) has not been completed (based solely on receipt by the Trustee of the
particular documents showing evidence of the recordation/filing), every 90 days
thereafter until the earliest of (i) the date on which such exceptions are
eliminated and such recordation/filing has been completed, (ii) the date on
which all the affected Mortgage Loans are removed from the Trust Fund, and (iii)
the second anniversary of the Closing Date), the Trustee or a Custodian on its
behalf shall review the documents delivered to it or such Custodian with respect
to each Mortgage Loan, and the Trustee shall, subject to Sections 1.03, 2.02(c)
and 2.02(d), certify in writing (substantially in the form of Exhibit F) to each
of the other parties hereto, the Mortgage Loan Seller, the Directing
Certificateholder, the ES Controlling Holder (if the ES Component Mortgage Loan
is involved), the SB Controlling Holder (if the SB Component Mortgage Loan is
involved), the related CBA B Note Holder (if the related CBA Mortgage Loan is
involved) (and the Trustee has knowledge of such Holder) or the Wellbridge
Controlling Holder and Wellbridge Companion Loan Noteholders (if the Wellbridge
A/B Mortgage Loan is involved) (and the Trustee has knowledge of such Holder),
that, as to each Mortgage Loan then subject to this Agreement (except as
specifically identified in any exception report annexed to such certification):
(i) the original Mortgage Note specified in clause (i) of the definition of
"Mortgage File" and all allonges thereto, if any (or a copy of such Mortgage
Note, together with a lost note affidavit certifying that the original of such
Mortgage Note has been lost), the original or copy of documents specified in
clauses (ii) through (vii) and (xii) of the definition of "Mortgage File" and,
in the case of a wellness center property, the documents specified in clause
(viii) of the definition of "Mortgage File" (without regard to the
parenthetical), have been received by it or a Custodian on its behalf; (ii) if
such report is due more than 180 days after the Closing Date, the
recordation/filing contemplated by Section 2.01(c) has been completed (based
solely on receipt by the Trustee of the particular recorded/filed documents);
and (iii) all documents received by it or any Custodian with respect to such
Mortgage Loan have been reviewed by it or by such Custodian on its behalf and
(A) appear regular on their face (handwritten additions, changes or corrections
shall not constitute irregularities if initialed by the Mortgagor), (B) appear
to have been executed and (C) purport to relate to such Mortgage Loan. The
Trustee may assume that, for purposes of reviewing the items in clause (viii) of
the definition of Mortgage File and completing the certification attached hereto
as Exhibit F, the related UCC-1 includes one state level UCC Financing Statement
filing in the state of incorporation of the related Borrower for each Mortgaged
Property (or with respect to any Loan that has two or more related Borrowers,
the state of incorporation of each such Borrower). At any time subsequent to the
second anniversary of the Closing Date, the Trustee shall, upon request and at
the requesting party's expense, prepare and deliver to the requesting party
(including any Certificateholder or Certificate Owner) an updated version of the
exception report provided for in the prior sentence.
(c) If the Mortgage Loan Seller substitutes a Replacement Mortgage
Loan for any Defective Mortgage Loan as contemplated by Section 2.03, the
Trustee or a Custodian on its behalf shall review the documents delivered to it
or such Custodian with respect to such Replacement Mortgage Loan, and the
Trustee shall deliver a certification comparable to that described in the prior
paragraph, in respect of such Replacement Mortgage Loan, on or about the 30th
day following the related date of substitution (and, if any exceptions are
noted, every 90 days thereafter until the earliest of (i) the date on which such
exceptions are eliminated and all related recording/filing has been completed,
(ii) the date on which such Replacement Mortgage Loan is removed from the Trust
Fund and (iii) the second anniversary of the date on which such Replacement
Mortgage Loan was added to the Trust Fund). At any time subsequent to the second
anniversary of the date on which such Replacement Mortgage Loan is added to the
Trust Fund, the Trustee shall, upon request, prepare and deliver to the
requesting party (including any Certificateholder or Certificate Owner) an
updated version of the exception report provided for in the prior sentence.
(d) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation (i) to determine whether any of
the documents specified in clauses (iii), (v), (vi) and (viii) through (xii) the
definition of "Mortgage File" exist or are required to be delivered by the
Mortgage Loan Seller in respect of any Mortgage Loan, 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
valid, legal, effective, genuine, binding, enforceable, sufficient or
appropriate for the represented purpose or that they are other than what they
purport to be on their face. Notwithstanding the foregoing, with respect to
Letters of Credit referenced in clause (xii) of the definition of "Mortgage
File" the Trustee shall perform the review set forth in Section
2.02(b)(iii)(A)-(C). Furthermore, except as expressly provided in Section
2.02(b), none of the Trustee, the Master Servicer, the Special Servicer or any
Custodian shall have any responsibility for determining whether the text of any
assignment or endorsement is in proper or recordable form, whether the requisite
recording of any document is in accordance with the requirements of any
applicable jurisdiction, or whether a blanket assignment is permitted in any
applicable jurisdiction.
(e) In performing the reviews contemplated by subsections (b) and
(c) above, the Trustee may conclusively rely on the Mortgage Loan Seller as to
the purported genuineness of any such document and any signature thereon. It is
understood that the scope of the Trustee's review of the Mortgage Files is
limited solely to confirming that the documents specified in clauses (i) through
(v), in clause (vii) and, in the case of any Mortgage Loan secured by a Mortgage
on a wellness center, in clause (viii) of the definition of "Mortgage File",
have been received and such additional information as will be necessary for
delivering the certifications required by subsections (a) and (b) above.
SECTION 2.03 Mortgage Loan Seller's Repurchase or Substitution of
Mortgage Loans for Material Document Defects and
Material Breaches.
(a) If any party hereto discovers, or receives written notice from a
non-party, that a Document Defect or Breach exists with respect to any Mortgage
Loan, then such party shall give prompt written notice thereof to the other
parties hereto, including (unless it is the party that discovered the Document
Defect or Breach) the Trustee. Upon the Trustee's discovery or receipt of notice
that a Document Defect or Breach exists with respect to any Mortgage Loan, the
Trustee shall notify the Directing Certificateholder, the ES Controlling Holder
(if the ES Component Mortgage Loan is involved), the SB Controlling Holder (if
the SB Component Mortgage Loan is involved), the related CBA B Note Holder (if
the related CBA A/B Mortgage Loan is involved) or the Wellbridge Controlling
Holder and Wellbridge Companion Loan Noteholders (if the Wellbridge A/B Mortgage
Loan is involved) (and the Trustee has knowledge of such Holder), and the
Mortgage Loan Seller.
(b) If necessary, the Trustee shall request the Mortgage Loan Seller
to comply with Section 4(c) of the Mortgage Loan Purchase and Sale Agreement
with respect to any Document Defect or other deficiency in a Mortgage File
relating to a Mortgage Loan. If the Trustee becomes aware of any failure on the
part of the Mortgage Loan Seller to do so, the Trustee shall promptly notify the
Master Servicer and the Special Servicer.
(c) Promptly upon its becoming aware of any Material Document Defect
or Material Breach with respect to any Mortgage Loan, the Master Servicer shall
(and the Special Servicer may) notify the Mortgage Loan Seller in writing of
such Material Document Defect or Material Breach, as the case may be, and direct
the Mortgage Loan Seller that it must, not later than 90 days from the receipt
by such parties of such notice (such 90-day period, the "Initial Resolution
Period"), correct or cure such Material Document Defect or Material Breach, as
the case may be, in all material respects, or repurchase the affected Mortgage
Loan (as, if and to the extent required by the Mortgage Loan Purchase and Sale
Agreement), at the applicable Purchase Price; provided that if the Mortgage Loan
Seller certifies to the Trustee in writing (i) that such Material Document
Defect or Material Breach, as the case may be, does not relate to whether the
affected Mortgage Loan is a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code, (ii) that such Material Document Defect or Material
Breach, as the case may be, is capable of being cured but not within the
applicable Initial Resolution Period, (iii) that such party commenced and is
diligently proceeding with the cure of such Material Document Defect or Material
Breach, as the case may be, within the applicable Initial Resolution Period, and
(iv) that such party anticipates that such Material Document Defect or Material
Breach, as the case may be, will be cured within an additional 90-day period (a
copy of which certification shall be delivered by the Trustee to the Master
Servicer, the Special Servicer and the Directing Certificateholder, the ES
Controlling Holder (if the ES Component Mortgage Loan is involved), the SB
Controlling Holder (if the SB Component Mortgage Loan is involved), the related
CBA B Note Holder (if the related CBA A/B Mortgage Loan is involved) (and the
Trustee has knowledge of such Holder) or the Wellbridge Controlling Holder and
Wellbridge Companion Loan Noteholders (if the Wellbridge A/B Mortgage Loan is
involved) (and the Trustee has knowledge of such Holder), then the Mortgage Loan
Seller shall have an additional 90-day period to complete such correction or
cure (or, if it fails to complete such correction or cure, to repurchase the
affected Mortgage Loan); and provided, further, that, in lieu of effecting any
such repurchase (but, in any event, no later than such repurchase would have to
have been completed), the Mortgage Loan Seller shall be permitted, during the
three-month period following the Startup Day for REMIC I (or during the two-year
period following such Startup Day if the affected Mortgage Loan is a "defective
obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the Code and
Treasury Regulations Section 1.860G-2(f)), to replace the affected Mortgage
Loan, other than the ES Component Mortgage Loan, the SB Component Mortgage Loan,
the Wellbridge Mortgage Loan or the Wellbridge Note B Loan, with one or more
Qualifying Substitute Mortgage Loans and to pay a cash amount equal to the
applicable Substitution Shortfall Amount, subject to any other applicable terms
and conditions of the Mortgage Loan Purchase and Sale Agreement and this
Agreement. If any substitution for a Deleted Mortgage Loan is not completed in
all respects by the end of the three-month (or, if applicable, the two-year)
period contemplated by the preceding sentence, the Mortgage Loan Seller shall be
barred from doing so (and, accordingly, will be limited to the cure/repurchase
remedies contemplated hereby), and no party hereto shall be liable thereto for
any loss, liability or expense resulting from the expiration of such period. If
any Mortgage Loan is to be repurchased or replaced as contemplated by this
Section 2.03, the Master Servicer shall designate the Certificate Account as the
account to which funds in the amount of the applicable Purchase Price or
Substitution Shortfall Amount (as the case may be) are to be wired, and the
Master Servicer shall promptly notify the Trustee when such deposit is made. Any
such repurchase or replacement of a Mortgage Loan shall be on a whole loan,
servicing released basis.
(d) With respect to any Cross-Collateralized Mortgage Loan, the
repurchase requirements of this Section 2.03 shall apply to any other Mortgage
Loans with which such Mortgage Loan is cross-collateralized or cross-defaulted.
(e) Whenever one or more mortgage loans are substituted for a
Defective Mortgage Loan by the Mortgage Loan Seller as contemplated by this
Section 2.03, the Master Servicer shall direct such party effecting the
substitution to deliver the related Mortgage File to the Trustee, to certify
that such substitute mortgage loan satisfies or such substitute mortgage loans
satisfy, as the case may be, all of the requirements of the definition of
"Qualifying Substitute Mortgage Loan" and to send such certification to the
Trustee. No mortgage loan may be substituted for a Defective Mortgage Loan as
contemplated by this Section 2.03 if the Mortgage Loan to be replaced was itself
a Replacement Mortgage Loan, in which case, absent a cure of the relevant
Material Breach or Material Document Defect, the affected Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each corresponding
Deleted Mortgage Loan (if any) after the related Due Date in April 2003 and on
or prior to the related date of substitution, shall be part of the Trust Fund.
Monthly Payments due with respect to each Replacement Mortgage Loan (if any) on
or prior to the related date of substitution, and Monthly Payments due with
respect to each corresponding Deleted Mortgage Loan (if any) after the related
date of substitution, shall not be part of the Trust Fund and are to be remitted
by the Master Servicer to the party effecting the related substitution promptly
following receipt.
(f) If any Mortgage Loan is to be repurchased or replaced by the
Mortgage Loan Seller as contemplated by this Section 2.03, the Master Servicer
shall direct the Mortgage Loan Seller to amend the Mortgage Loan Schedule to
reflect the removal of any Deleted Mortgage Loan and, if applicable, the
substitution of the related Replacement Mortgage Loan(s); and, upon its receipt
of such amended Mortgage Loan Schedule, the Master Servicer shall deliver or
cause the delivery of such amended Mortgage Loan Schedule to the other parties
hereto. Upon any substitution of one or more Replacement Mortgage Loans for a
Deleted Mortgage Loan, such Replacement Mortgage Loan(s) shall become part of
the Trust Fund and be subject to the terms of this Agreement in all respects.
(g) Upon receipt of a Request for Release (in the form of Exhibit D
attached hereto) and an Officer's Certificate from the Master Servicer to the
effect that the full amount of the Purchase Price or Substitution Shortfall
Amount (as the case may be) for any Mortgage Loan repurchased or replaced by the
Mortgage Loan Seller as contemplated by this Section 2.03 has been deposited in
the Certificate Account, and further, if applicable, upon receipt of the
Mortgage File for each Replacement Mortgage Loan (if any) to be substituted for
a Deleted Mortgage Loan, together with the certification referred to in Section
2.03(f) from the party effecting the substitution, if any, the Trustee shall (i)
release or cause the release of the Mortgage File and any Additional Collateral
held by or on behalf of the Trustee for the Deleted Mortgage Loan to the party
effecting the repurchase/substitution or its designee and (ii) execute and
deliver such instruments of release, transfer and/or assignment, in each case
without recourse, as shall be provided to it and are reasonably necessary to
vest in the party effecting the repurchase/substitution or its designee the
ownership of the Deleted Mortgage Loan, and the Master Servicer shall notify the
applicable Mortgagors of the transfers of the Deleted Mortgage Loan(s) and any
Replacement Mortgage Loan(s). In connection with any such repurchase or
substitution by the Mortgage Loan Seller, each of the Master Servicer and the
Special Servicer shall deliver to the party effecting the
repurchase/substitution or its designee any portion of the related Servicing
File, together with any Escrow Payments, Reserve Funds and Additional
Collateral, held by or on behalf of the Master Servicer or the Special Servicer,
as the case may be, with respect to the Deleted Mortgage Loan, in each case at
the expense of the party effecting the repurchase/substitution. The reasonable
"out-of-pocket" costs and expenses incurred by the Master Servicer, the Special
Servicer, the Trustee and/or the Fiscal Agent pursuant to this Section 2.03(g),
shall be payable to each of them, first, by the Mortgage Loan Seller to the
extent the Mortgage Loan Seller was required to repurchase the affected Mortgage
Loan, and then as Servicing Advances in respect of the affected Mortgage Loan.
(h) The Mortgage Loan Purchase and Sale Agreement provides the sole
remedies available to the Certificateholders, or the Trustee on their behalf,
respecting any Breach or Document Defect. If the Mortgage Loan Seller defaults
on its obligations to repurchase or replace any Mortgage Loan as contemplated by
this Section 2.03, the Master Servicer shall (and the Special Servicer may)
promptly notify the Trustee in writing, and the Trustee shall notify the
Certificateholders. Thereafter, the Master Servicer shall take such actions on
behalf of the Trust with respect to the enforcement of such repurchase/
substitution obligations (and if the Master Servicer is notified or otherwise
becomes aware of a default on the part of the Mortgage Loan Seller in respect of
its obligations under Section 4 of the Mortgage Loan Purchase and Sale
Agreement, the Master Servicer shall also take such actions on behalf of the
Trust with respect to the enforcement of such obligations of the Mortgage Loan
Seller), including the institution and prosecution of appropriate legal
proceedings, as the Master Servicer shall determine are in the best interests of
the Certificateholders (taken as a collective whole). Any and all reasonable
"out-of-pocket" costs and expenses incurred by the Master Servicer, the Special
Servicer and/or the Trustee pursuant to this Section 2.03(h), including
reasonable attorney fees and expenses to the extent not collected from the
Mortgage Loan Seller because the Mortgage Loan Seller either failed, or was not
required, to cure the subject actual or alleged Breach or Document Defect or
repurchase/replace the affected related Mortgage Loan, shall constitute
Servicing Advances in respect of the affected Mortgage Loan.
Without limiting the Trustee's duties under this Section 2.03, the
Trustee irrevocably designates the Special Servicer, with respect to the
Specially Serviced Loans, and the Master Servicer, with respect to Performing
Loans, for the benefit of Certificateholders to use reasonable efforts to
enforce, after notice to the Trustee, any of the obligations of the Mortgage
Loan Seller under the Mortgage Loan Purchase and Sale 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 or Master Servicer, as the case may be, shall reasonably
determine is in the best interests of the Certificateholders (taken as a
collective whole). All out of pocket expenses (including attorney's fees and
litigation costs and expenses) incurred by the Special Servicer or Master
Servicer, as the case may be, in carrying out its obligations hereunder shall be
reimbursable to the Special Servicer or Master Servicer, as the case may be, and
constitute Additional Trust Fund Expenses. The Trustee shall upon request
promptly furnish or cause to be furnished to the Special Servicer or Master
Servicer, as the case may be, limited powers of attorney and other documents
necessary, delivered to it by the Special Servicer or Master Servicer, as the
case may be, for execution, or appropriate to enable the Special Servicer or
Master Servicer, as the case may be, to carry out such enforcement duties
subject to Section 3.01(c).
SECTION 2.04 Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of the
other parties to this Agreement and for the benefit of the Certificateholders
and the Companion Loan Noteholders, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor,
and the performance and compliance with the terms of this Agreement by the
Depositor, will not violate the Depositor's certificate of incorporation
or bylaws or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the
breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Depositor, enforceable against the Depositor
in accordance with the terms hereof, except as such enforcement may be
limited by (A) applicable bankruptcy, insolvency, receivership,
reorganization, liquidation, fraudulent transfer, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Depositor's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Depositor to perform its obligations under this Agreement or the
financial condition of the Depositor.
(vi) The transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any such
approvals as have been obtained, and is not subject to any bulk transfer
or similar law in effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor which would prohibit the
Depositor from entering into this Agreement or, in the Depositor's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Depositor to perform its obligations
under this Agreement or the financial condition of the Depositor.
(viii) Immediately prior to the transfer of the Mortgage Loans by
the Depositor to the Trustee hereunder, the Depositor had good and
marketable title to, and was the sole owner of, each such Mortgage Loan,
free and clear of any and all liens, encumbrances and other interests on,
in or to such Mortgage Loan.
(ix) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Depositor of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings and recordings of Mortgage Loan documents and assignments thereof
that are contemplated by this Agreement to be completed after the Closing
Date.
(x) The Depositor has been solvent at all relevant times prior to,
and will not be rendered insolvent by, its transfer of the Mortgage Loans
to the Trustee, pursuant to Section 2.01(b).
(xi) After giving effect to its transfer of the Mortgage Loans to
the Trustee, pursuant to Section 2.01(b), the value of the Depositor's
assets, either taken at their present fair saleable value or at fair
valuation, will exceed the amount of the Depositor's debts and
obligations, including contingent and unliquidated debts and obligations
of the Depositor, and the Depositor will not be left with unreasonably
small assets or capital with which to engage in and conduct its business.
(xii) The Depositor does not intend to, and does not believe that it
will, incur debts or obligations beyond its ability to pay such debts and
obligations as they mature.
(xiii) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Depositor are pending or contemplated.
(xiv) Immediately prior to the transfer of the Mortgage Loans to the
Trustee for the benefit of the Certificateholders pursuant to this
Agreement, the Depositor had such right, title and interest in and to each
Mortgage Loan as was transferred to it by the Mortgage Loan Seller
pursuant to the Mortgage Loan Purchase and Sale Agreement. The Depositor
has not transferred any of its right, title and interest in and to the
Mortgage Loans to any Person other than the Trustee.
(xv) Except for any actions that are the express responsibility of
another party hereunder or under any Mortgage Loan Purchase and Sale
Agreement, and further except for actions that the Depositor is expressly
permitted to complete subsequent to the Closing Date, the Depositor has
taken all actions required under applicable law to effectuate the transfer
of all of its right, title and interest in and to the Mortgage Loans by
the Depositor to the Trustee.
(b) Upon discovery by any of the parties hereto of a breach of any
of the foregoing representations and warranties which materially and adversely
affects the interests of the Certificateholders or any party hereto, the party
discovering such breach shall give prompt written notice to each of the other
parties hereto.
SECTION 2.05 Representations and Warranties of the Master
Servicer.
(a) The Master Servicer hereby represents and warrants to the other
parties hereto and for the benefit of the Certificateholders and the Companion
Loan Noteholders, as of the Closing Date, that:
(i) The Master Servicer is duly organized, validly existing and in
good standing as a national banking association under the laws of the
United States of America, and the Master Servicer is in compliance with
the laws of each State in which any Mortgaged Property is located to the
extent necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not violate the Master Servicer's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its assets,
which default, in the Master Servicer's good faith and reasonable
judgment, is likely to materially and adversely affect the ability of the
Master Servicer to perform its obligations under this Agreement.
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Master Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit the Master Servicer from entering into this Agreement or, in the
Master Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Master Servicer
to perform its obligations under this Agreement or the financial condition
of the Master Servicer.
(vii) Each officer or employee of the Master Servicer that has
responsibilities concerning the servicing and administration of the Loans
is covered by errors and omissions insurance in the amounts and with the
coverage required by Section 3.07(c). None of the Master Servicer or, any
of its officers or employees that is involved in the servicing or
administration of the Mortgage Loans has been refused such coverage or
insurance.
(viii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Master Servicer of the
transactions contemplated herein, except for those consents, approvals,
authorizations and orders that previously have been obtained and those
filings and registrations that previously have been completed.
(ix) The Master Servicer has examined each of the Sub-Servicing
Agreements entered into by the Master Servicer that will be in effect as
of the Closing Date with respect to the Loans, and each such Sub-Servicing
Agreement complies with the requirements of Section 3.22(a) in all
material respects.
(b) The representations and warranties of the Master Servicer set
forth in Section 2.05(a) shall survive the execution and delivery of this
Agreement and inure to the benefit of the Persons for whose benefit they were
made for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties which
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Master Servicer (if any) shall be deemed to have
made, as of the date of its succession, each of the representations set forth in
Section 2.05(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.05(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
SECTION 2.06 Representations and Warranties of the Special
Servicer.
(a) The Special Servicer hereby represents and warrants to the other
parties hereto and for the benefit of the Certificateholders and the Companion
Loan Noteholders, as of the Closing Date, that:
(i) The Special Servicer is duly organized, validly existing and in
good standing as a corporation 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, will not violate the Special Servicer's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its assets,
which default, in the Special Servicer's reasonable judgment, is likely to
materially and adversely effect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer.
(iii) The Special Servicer has the full corporate power and
authority to enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, except as such
enforcement may be limited by (A) applicable bankruptcy, receivership,
insolvency, reorganization, liquidation, fraudulent transfer, moratorium
and other laws affecting the enforcement of creditors' rights generally,
and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer, the outcome
of which in the Special Servicer's 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 or employee of the Special Servicer that has
responsibilities concerning the servicing and administration of the 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, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Special Servicer of the
transactions contemplated herein, except for those consents, approvals,
authorizations and orders that previously have been obtained and those
filings and registrations that previously have been completed.
(b) The representations and warranties of the Special Servicer set
forth in Section 2.06(a) shall survive the execution and delivery of this
Agreement and inure to the benefit of the Persons for whose benefit they were
made for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties which
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Special Servicer (if any) shall be deemed to have
made, as of the date of its succession, each of the representations set forth in
Section 2.06(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.06(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
SECTION 2.07 Representations and Warranties of the Trustee and the
REMIC Administrator.
(a) LaSalle Bank National Association both in its capacity as
Trustee and in its capacity as REMIC Administrator (the "Bank"), hereby
represents and warrants to the other parties hereto and for the benefit of the
Certificateholders and the Companion Loan Noteholders, as of the Closing Date,
that:
(i) The Bank is a national bank duly organized, validly existing and
in good standing under the laws of the United States and is, shall be or,
if necessary, shall appoint a co-trustee that is, in compliance with the
laws of each State in which any Mortgaged Property is located to the
extent necessary to ensure the enforceability of each Loan and to perform
its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Bank, and
the performance and compliance with the terms of this Agreement by the
Bank, do not violate the Bank's organizational documents or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets, which default, in the Bank's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Bank to perform its obligations under
this Agreement or the financial condition of the Bank.
(iii) The Bank 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 Bank, enforceable against the Bank in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Bank 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 Bank's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Bank to perform
its obligations under this Agreement or the financial condition of the
Bank.
(vi) No litigation is pending or, to the best of the Bank's
knowledge, threatened against the Bank which would prohibit the Bank from
entering into this Agreement or, in the Bank's good faith and reasonable
judgment, is likely to materially and adversely affect either the ability
of the Bank to perform its obligations under this Agreement or the
financial condition of the Bank.
(vii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Bank of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed.
(b) The representations and warranties of the Bank set forth in
Section 2.07(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any of the parties
hereto of a breach of any of such representations and warranties which
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Trustee or REMIC Administrator (if any and
regardless of whether the Trustee and the REMIC Administrator are different
Persons) shall be deemed to have made, as of the date of its succession, each of
the representations set forth in Section 2.07(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.07(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization. In any such case, the term "Bank" shall be deemed to mean such
successor Trustee or the REMIC Administrator, as appropriate.
SECTION 2.08 Execution, Authentication and Delivery of Class ES
Certificates and Class SB Certificates; Creation of
Component Mortgage Loan REMIC Regular Interests and
Component Mortgage Loan REMIC Residual Interest.
Concurrently with the assignment and in exchange for the ES
Component Mortgage Loan and the SB Component Mortgage Loan, (a) the Trustee
agrees to hold the ES Component Mortgage Loan and the SB Component Mortgage Loan
included in the Component Mortgage Loan REMIC, (b) the Trustee acknowledges the
issuance of the Component Mortgage Loan REMIC Regular Interests and the
Component Mortgage Loan REMIC Residual Interest, (c) the Depositor assigns the
Component Mortgage Loan REMIC Senior Regular Interests to the Trustee as assets
of REMIC I pursuant to Section 2.09, and (d) the Certificate Registrar, pursuant
to the written request of the Depositor executed by an officer of the Depositor,
has executed, and the Authenticating Agent has authenticated and delivered to or
upon the order of the Depositor, the Class ES Certificates and Class SB
Certificates in authorized denominations. The Component Mortgage Loan REMIC
Residual Interest is evidenced by the Class R-I Certificates issued pursuant to
Section 2.09. The interests evidenced by the Component Mortgage Loan REMIC
Residual Interest, together with the Component Mortgage Loan REMIC Senior
Regular Interests, the Class ES Certificates and the Class SB Certificates,
constitute the entire beneficial ownership of the Component Mortgage Loan REMIC.
The rights of the Holders of the Class R-I Certificates as owners of the
Component Mortgage Loan REMIC Residual Interest, and the rights of the Class ES
Certificateholders, the Class SB Certificateholders and REMIC I (as holder of
the Component Mortgage Loan REMIC Senior Regular Interests) to receive
distributions from the proceeds of the Component Mortgage Loan REMIC in respect
of the Component Mortgage Loan REMIC Residual Interest and the Component
Mortgage Loan REMIC Regular Interests, respectively, and all ownership interests
evidenced or constituted by the Class ES Certificates, the Class SB
Certificates, the Component Mortgage Loan REMIC Residual Interest and the
Component Mortgage Loan REMIC Senior Regular Interests, shall be as set forth in
this Agreement.
SECTION 2.09 Issuance of the Class R-I Certificates; Creation of
the REMIC I Regular Interests.
Concurrently with the assignment to the Trustee of the assets
included in REMIC I, and in exchange therefor, at the direction of the
Depositor, the REMIC I Regular Interests have been issued hereunder and the
Trustee has executed, authenticated and delivered to or upon the order of the
Depositor, in exchange for such assets and the Component Mortgage Loan REMIC
Residual Interest issued pursuant to Section 2.08, the Class R-I Certificates in
authorized denominations. The REMIC I Residual Interest evidenced by the Class
R-I Certificates, together with the REMIC I Regular Interests, constitute the
entire beneficial ownership of REMIC I. The rights of the Class R-I
Certificateholders and the Trustee for the benefit of REMIC II to receive
distributions from the proceeds of REMIC I in respect of the Class R-I
Certificates and the REMIC I Regular Interests, respectively, shall be as set
forth in this Agreement.
SECTION 2.10 Conveyance of REMIC I Regular Interests; Acceptance
of REMIC II by the Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery hereof, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the Holders of the REMIC II
Certificates. The Trustee acknowledges the assignment to it of the REMIC I
Regular Interests and declares that it holds and will hold the same in trust for
the exclusive use and benefit of all present and future Holders of the REMIC II
Certificates.
SECTION 2.11 Issuance of the REMIC II Certificates.
Concurrently with the assignment to the Trustee of the REMIC I
Regular Interests, and in exchange therefor, at the direction of the Depositor,
the Trustee has executed, authenticated and delivered to or upon the order of
the Depositor, the REMIC II Certificates in authorized denominations. The
interests evidenced by the REMIC II Certificates constitute the entire
beneficial ownership of REMIC II. The rights of the Holders of the REMIC II
Certificates to receive distributions from the proceeds of REMIC II shall be as
set forth in this Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01 Administration of the Loans.
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Loans and any REO Properties that it is obligated to
service and administer pursuant to this Agreement on behalf of the Trustee, and
in the best interests and for the benefit of the Certificateholders and, in the
case of a Loan Pair, on behalf of the related Companion Loan Noteholders (as a
collective whole) in accordance with any and all applicable laws, the terms of
this Agreement, the terms of the respective Loans and in the case of a Loan
Pair, the related Co-Lender Agreement, and, to the extent consistent with the
foregoing, in accordance with the Servicing Standard. Without limiting the
foregoing, and subject to Section 3.21, (i) the Master Servicer shall service
and administer all Performing Loans, and (ii) the Special Servicer shall service
and administer (x) each Loan (other than a Corrected Loan) as to which a
Servicing Transfer Event has occurred and is continuing, and (y) each REO
Property; provided, however, that the Master Servicer shall continue to collect
information and prepare all reports to the Trustee required hereunder with
respect to any Specially Serviced Loans and REO Properties (and the related REO
Loans), and further to render such incidental services with respect to any
Specially Serviced Loans and REO Properties as are specifically provided for
herein; and provided, further, that the Special Servicer shall render such
incidental services with respect to Performing Loans as are specifically
provided for herein. The Master Servicer shall not, on behalf of the Trust,
obtain title to a Mortgaged Property.
(b) Subject to Section 3.01(a) the Master Servicer and the Special
Servicer shall each have full power and authority, acting alone or through
Sub-Servicers, to do or cause to be done any and all things in connection with
such servicing and administration which it may deem necessary or desirable.
Without limiting the generality of the foregoing, each of the Master Servicer
(with respect to Performing Loans) and the Special Servicer (with respect to
Specially Serviced Loans), in its own name or in the name of the Trustee, is
hereby authorized and empowered by the Trustee to execute and deliver, on behalf
of the Certificateholders, the Trustee or any of them: (i) any and all financing
statements, control agreements, continuation statements and other documents or
instruments necessary to perfect or maintain the lien created by any Mortgage or
other security document in the related Mortgage File on the related Mortgaged
Property and other related collateral; (ii) any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments; and (iii) subject to Sections 3.08 and 3.20,
any and all assumptions, modifications, waivers, substitutions, extensions,
amendments and consents. Subject to Section 3.10, the Trustee shall, at the
written request of a Servicing Officer of the Master Servicer or the Special
Servicer, furnish, or cause to be so furnished, to the Master Servicer or the
Special Servicer, as appropriate, any limited powers of attorney and other
documents (each of which shall be prepared by the Master Servicer or the Special
Servicer, as applicable) necessary or appropriate to enable it to carry out its
servicing and administrative duties hereunder; provided, that the Trustee shall
not be held liable for any misuse of any such power of attorney by the Master
Servicer or the Special Servicer and the Trustee will be indemnified pursuant
to, and subject to the limitations set forth in, Section 8.05 for any losses or
expenses it incurs due to the Master Servicer's use of such power of attorney.
(c) Notwithstanding anything contained herein to the contrary,
neither the Master Servicer nor the Special Servicer shall without the Trustee's
written consent: (i) initiate any action, suit or proceeding solely under the
Trustee's name without indicating the Master Servicer's or such Special
Servicer's, as applicable, representative capacity, or (ii) take any action with
the intent to cause, and which actually does cause, the Trustee to be registered
to do business in any state.
The Master Servicer and/or the Special Servicer shall indemnify the
Trustee for any and all costs, liabilities and expenses incurred by the Trustee
in connection with the negligent or willful misuse of such powers of attorney by
the Master Servicer or the Special Servicer, as applicable.
(d) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee and, unless they are the same Person, each other 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 parties hereto acknowledge that each A/B Mortgage Loan is
subject to the terms and conditions of the related Co-Lender Agreement and, with
respect to the Wellbridge A/B Mortgage Loan, the Wellbridge Mezzanine
Intercreditor Agreement. The parties hereto further recognize the respective
rights and obligations of the "Note A-1 Holder," the "Note A-2 Holder," the
"Note A-3 Holder" and the "Note B Holder" under the Wellbridge Co-Lender
Agreement and of the "Lenders" under each CBA Co-Lender Agreement, including
with respect to (i) the allocation of collections on or in respect of (x) the
Wellbridge A/B Mortgage Loan in accordance with Sections 3 and 4 of the
Wellbridge Co-Lender Agreement and (y) each CBA A/B Mortgage Loan in accordance
with Sections 3 and 4 of the related CBA Co-Lender Agreement, (ii) the making of
payments to (x) the "Note A-1 Holder," the "Note A-2 Holder," the "Note A-3
Holder" and the "Note B Holder" in accordance with Sections 3 and 4 of the
Wellbridge Co-Lender Agreement and (z) the "Lenders" in accordance with Sections
3 and 4 of each CBA Co-Lender Agreement, and (iii) the purchase of (x) the
Wellbridge Mortgage Loan by the Wellbridge Note B Holder or its designee in
accordance with Section 8 of the Wellbridge Co-Lender Agreement and (z) any CBA
Mortgage Loan by the related CBA B Noteholder in accordance with Section 8 of
the related CBA Co-Lender Agreement.
In the event that a Mortgage Loan included in a Loan Pair is no
longer part of the Trust Fund and the servicing and administration of such A/B
Mortgage Loan is to be governed by a separate servicing agreement and not by
this Agreement, as contemplated by Section 2 of the Wellbridge Co-Lender
Agreement, in the case of the Wellbridge A/B Mortgage Loan, and Section 16 of
the related CBA Co-Lender Agreement, in the case of a CBA A/B Mortgage Loan, the
Master Servicer and, if such A/B Mortgage Loan is then being specially serviced
hereunder, the Special Servicer, shall continue to act in such capacities under
such separate servicing agreement, which agreement shall be reasonably
acceptable to the Master Servicer and/or the Special Servicer, as the case may
be, and shall contain servicing and administration, limitation of liability,
indemnification and servicing compensation provisions substantially similar to
the corresponding provisions of this Agreement, except for the fact that such
A/B Mortgage Loan and the related Mortgaged Properties shall be the sole assets
serviced and administered thereunder and the sole source of funds thereunder.
Prior to the Wellbridge A/B Mortgage Loan being serviced under any separate
servicing agreement, the Rating Agencies then rating the Wellbridge Companion
Loan Securities shall have provided written confirmation that the servicing of
the Wellbridge A/B Mortgage Loan under such agreement would not result in a
downgrade, qualification or withdrawal of any of the ratings assigned by such
Rating Agencies with respect to any class of Wellbridge Companion Loan
Securities.
Notwithstanding the foregoing, if, at such time as a Mortgage Loan
included in a Loan Pair shall no longer be part of the Trust Fund, a separate
servicing agreement with respect to such A/B Mortgage Loan has not been entered
into or, in the case of the Wellbridge A/B Mortgage Loan the rating confirmation
from the Rating Agencies referred to above has not been obtained, then, until
such time as a separate servicing agreement is entered into and such rating
confirmation is obtained, and notwithstanding that such Mortgage Loan is no
longer part of the Trust Fund, the Master Servicer and, if applicable, the
Special Servicer shall continue to service such A/B Mortgage Loan or any related
REO Property, as the case may be, under this Agreement as if it were a separate
servicing agreement, for the benefit of the parties under the related Co-Lender
Agreement, with: (i) such A/B Mortgage Loan and the related Mortgaged Property
constituting the sole assets thereunder; and (ii) references to the "Trustee,"
"Trust," "Certificateholders" (or any sub-group thereof) and the "Directing
Certificateholder" being construed to refer to the new "Note A-1 Holder" under
the Wellbridge Co-Lender Agreement or the new "A Noteholder" under the related
CBA Co-Lender Agreement, as applicable. Subject to any express provision
contained in the related Co-Lender Agreement to the contrary, nothing herein
shall be deemed to override the provisions of a Co-Lender Agreement with respect
to the rights of the Companion Loan Noteholders thereunder and with respect to
the servicing and administration duties and obligations with respect to the A/B
Mortgage Loans, in the event of any inconsistency between the provisions of a
Co-Lender Agreement and the provisions of this Agreement or as to any matter on
which such Co-Lender Agreement is silent or makes reference to this Agreement,
this Agreement shall govern.
SECTION 3.02 Collection of Mortgage Loan Payments.
(a) The Master Servicer (with respect to Performing Loans) and the
Special Servicer (with respect to Specially Serviced Loans) shall undertake
reasonable efforts to collect all payments called for under the terms and
provisions of the Loans and shall follow such collection procedures as are
consistent with applicable law, the express terms of this Agreement and the
related Loan documents and, to the extent consistent with the foregoing, the
Servicing Standard. Consistent with the foregoing, the Special Servicer (as to
Specially Serviced Loans) may waive any Default Charges in connection with any
specific delinquent payment on a Loan it is obligated to service hereunder.
Consistent with the foregoing and in each case subject to the Servicing
Standard, the Master Servicer (or if applicable a Sub-Servicer) may grant a one
time waiver of Default Charges in connection with a late payment, provided that
for any waiver thereafter of Default Charges in connection with a Mortgage Loan
that is thirty (30) days or more past due, and with respect to which Advances,
Advance Interest or Additional Trust Fund Expenses have been incurred and remain
unreimbursed to the Trust, the Master Servicer must obtain the consent of the
Directing Certificateholder before granting such waiver subject to the
obligation of the Master Servicer to act in accordance with applicable law and
the Servicing Standard. The Directing Certificateholder's consent shall be
deemed granted if it has not responded in writing (which may be via fax or
e-mail) within ten (10) Business Days of its receipt of such request.
(b) (i) At least ninety (90) days prior to the maturity date of each
Balloon Loan, the Master Servicer shall send a notice to the related Mortgagor
of such maturity date (with a copy to be sent to the Special Servicer) and shall
request written confirmation that the Balloon Payment will be paid by such
maturity date.
(ii) Within 60 days after the Closing Date, the Master Servicer
shall notify each provider of a Letter of Credit for any Loan that the
Master Servicer or the Special Servicer, on behalf of the Trustee for the
benefit of the Certificateholders, shall be the beneficiary under each
such Letter of Credit. The Master Servicer shall maintain and execute each
such Letter of Credit, if applicable, in accordance with the related Loan
documents.
All amounts received by the Trust with respect to an A/B Mortgage
Loan shall be applied to amounts due and owing thereunder (including for
principal and accrued and unpaid interest) in accordance with the express
provisions of this Agreement, the related Mortgage Notes, the related Mortgage,
the related loan agreement, if any, and the related Co-Lender Agreement.
SECTION 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Servicing Advances; Reserve
Accounts.
(a) The Master Servicer shall, as to all the Loans, establish and
maintain one or more accounts (the "Servicing Accounts"), into which all Escrow
Payments received by it with respect to the Loans shall be deposited and
retained. Subject to any terms of the related Loan documents that specify the
nature of the account in which Escrow Payments shall be held, each Servicing
Account shall be an Eligible Account. Withdrawals of amounts so collected in
respect of any Loan (and interest earned thereon) from a Servicing Account may
be made only: (i) to effect payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and comparable items in respect of
related Mortgaged Property; (ii) to reimburse the Master Servicer, the Special
Servicer, or the Trustee as applicable, for any unreimbursed Servicing Advances
made thereby to cover any of the items described in the immediately preceding
clause (i); (iii) to refund to the related Mortgagor any sums as may be
determined to be overages; (iv) to pay interest or other income, if required and
as described below, to the related Mortgagor on balances in the Servicing
Account (or, if and to the extent not payable to the related Mortgagor, to pay
such interest or other income (up to the amount of any Net Investment Earnings
in respect of such Servicing Account for each Collection Period) to the Master
Servicer); (v) disburse Insurance Proceeds if required to be applied to the
repair or restoration of the related Mortgaged Property; or (vi) to clear and
terminate the Servicing Account at the termination of this Agreement in
accordance with Section 9.01. The Master Servicer shall pay or cause to be paid
to the related Mortgagor interest, if any, earned on the investment of funds in
Servicing Accounts maintained thereby, if required by law or the terms of the
related Loan. If the Master Servicer shall deposit in a Servicing Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from such Servicing Account, any provision herein to the contrary
notwithstanding. The Special Servicer shall within two (2) Business Days after
receipt deliver all Escrow Payments received by it to the Master Servicer for
deposit in the applicable Servicing Account.
(b) The Master Servicer shall as to each Loan (including each
Specially Serviced Loan) (i) maintain accurate records with respect to the
related Mortgaged Property reflecting the status of real estate taxes,
assessments and other similar items that are or may become a lien thereon and
the status of insurance premiums and any ground rents payable in respect thereof
and (ii) use reasonable efforts consistent with the Servicing Standard to
obtain, from time to time, all bills for the payment of such items (including
renewal premiums) and effect payment thereof prior to the applicable penalty or
termination date. For purposes of effecting any such payment, the Master
Servicer shall apply Escrow Payments as allowed under the terms of the related
Loan documents; provided that if such Loan does not require the related
Mortgagor to escrow for the payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and similar items, each of the Master
Servicer and the Special Servicer shall use reasonable efforts, as to those
Loans it is obligated to service hereunder, and subject to and in accordance
with the Servicing Standard, enforce the requirement of the related Mortgage
that the Mortgagor make payments in respect of such items at the time they first
become due.
(c) In accordance with the Servicing Standard, but subject to
Section 3.11(h), the Master Servicer shall make a Servicing Advance with respect
to each Property (including each Mortgaged Property relating to a Specially
Serviced Loan) all such funds as are necessary for the purpose of effecting the
timely payment of (i) real estate taxes, assessments and other similar items,
(ii) ground rents (if applicable), and (iii) premiums on Insurance Policies, in
each instance prior to the applicable penalty or termination date if and to the
extent that (x) Escrow Payments (if any) collected from the related Mortgagor
are insufficient to pay such item when due, and (y) the related Mortgagor has
failed to pay such item on a timely basis; provided that, in the case of amounts
described in the preceding clause (i), the Master Servicer shall not make a
Servicing Advance of any such amount until the Master Servicer (in accordance
with the Servicing Standard) has actual knowledge that the Mortgagor has not
made such payments and reasonably anticipates that such amounts will not be paid
by the related Mortgagor on or before the applicable penalty date. All such
Advances shall be reimbursable in the first instance from related collections
from the Mortgagor and further as provided in Section 3.05. No costs incurred by
the Master Servicer in effecting the payment of real estate taxes, assessments
and, if applicable, ground rents on or in respect of such Mortgaged Properties
shall, for purposes hereof, including calculating monthly distributions to
Certificateholders, be added to the respective unpaid principal balances or
Stated Principal Balances of the related Loans, notwithstanding that the terms
of such Loans so permit; provided that this sentence shall not be construed to
limit the rights of the Master Servicer on behalf of the Trust or, if a Loan
Pair is involved, the related Companion Loan Noteholders, to enforce any
obligations of the related Mortgagor under such Loan.
(d) The Master Servicer shall establish and maintain, as applicable,
one or more accounts (the "Reserve Accounts"), in which all Reserve Funds, if
any, received by it with respect to the Loans shall be deposited and retained.
As and to the extent consistent with the Servicing Standard and the related Loan
documents, the Master Servicer may make withdrawals of amounts so deposited, and
draws under any Letter of Credit delivered in lieu of Reserve Funds, to pay for,
or to reimburse the related Mortgagor in connection with, the costs associated
with the related tenant improvements, leasing commissions, repairs,
replacements, capital improvements and/or environmental testing and remediation,
litigation and/or other special expenses at or with respect to the related
Mortgaged Property for which such Reserve Funds were intended or such Letter of
Credit was delivered and, in the case of a Reserve Fund constituting debt
service reserve accounts, to apply amounts on deposit therein in respect of
principal and interest on the related Mortgage Loan. In addition, as and to the
extent consistent with the Servicing Standard and the related Loan documents,
the Master Servicer may make withdrawals of amounts so deposited, and draws
under any Letter of Credit so delivered, to prepay the Loan in the event certain
leasing or other economic criteria are not satisfied at the related Mortgaged
Property (but only if such prepayment is required by the related Loan documents
or continuing to hold such funds or Letter of Credit as Additional Collateral is
not consistent with the Servicing Standard), or to release such amounts to the
related Mortgagor or otherwise apply such amounts for any other appropriate
purpose in the event that such criteria are satisfied, and the Master Servicer
may return any Letter of Credit so delivered to the related Mortgagor. Subject
to the terms of the related Loan documents, each Reserve Account shall be an
Eligible Account. Interest and other income, if any, earned on funds on deposit
in any Reserve Account held by the Master Servicer (to the extent of any Net
Investment Earnings with respect to such Reserve Account for any Collection
Period), shall be for the benefit of and payable to the Master Servicer, unless
otherwise required to be paid to the related Mortgagor by law or the terms of
the related Loan. Any out-of-pocket expenses incurred by the Master Servicer to
enable the Master Servicer to make any draw under any Letter of Credit shall
constitute a Servicing Advance, and the Master Servicer shall make reasonable
efforts to recover such expenses from the related Mortgagor to the extent the
Mortgagor is required to pay such expenses under the terms of the related Loan
documents.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Loan, the Master 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 Loan, the Master 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 by the related Loan documents 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 Master
Servicer shall determine whether the related Mortgagor has failed to perform its
obligations under the related Loan and report any such failure to the Special
Servicer, the Trustee, the Directing Certificateholder, the ES Controlling
Holder (if the ES Component Mortgage Loan is involved), the SB Controlling
Holder (if the SB Component Mortgage Loan is involved), the related CBA B Note
Holder (if the related CBA Mortgage Loan is involved) or the Wellbridge
Controlling Holder and Wellbridge Companion Loan Noteholders (if the Wellbridge
A/B Mortgage Loan is involved) within a reasonable time after the date as of
which such actions or remediations are required to be or to have been taken or
completed. The Master Servicer shall promptly give written notice to the
Trustee, the Special Servicer and the Directing Certificateholder, the ES
Controlling Holder (if the ES Component Mortgage Loan is involved), the SB
Controlling Holder (if the SB Component Mortgage Loan is involved), the related
CBA B Note Holder (if the related CBA Mortgage Loan is involved) or the
Wellbridge Controlling Holder and Wellbridge Companion Loan Noteholders (if the
Wellbridge A/B Mortgage Loan is involved) if the Master Servicer shall determine
that any Mortgagor has failed to perform its obligations under the related Loan
documents in respect of environmental matters.
SECTION 3.04 Certificate Account, the Distribution Account, the
Component Mortgage Loan REMIC Distribution Account,
the REMIC II Distribution Account, Excess Liquidation
Proceeds Account and Loan Pair Custodial Account.
(a) The Master Servicer shall segregate and hold all funds collected
and received by it in connection with the Mortgage Pool separate and apart from
its own funds and general assets. The Master Servicer shall establish and
maintain one or more accounts (collectively, the "Certificate Account"), held on
behalf of the Trustee in trust for the benefit of the Certificateholders. The
Certificate Account shall be an Eligible Account. The Master Servicer shall
deposit or cause to be deposited in the Certificate Account, within one (1)
Business Day of receipt (in the case of payments by Mortgagors or other
collections on or in respect of the Mortgage Loans) or as otherwise required
hereunder, 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,
interest and any other amounts due and payable on the Mortgage Loans on or
before the Cut-off Date, which payments shall be delivered promptly to the
applicable Mortgage Loan Seller or its related designee, with negotiable
instruments endorsed as necessary and appropriate without recourse):
(i) all payments, from whatever source, or transfers from a debt
service reserve account, on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments, from whatever source, or transfers from a debt
service reserve account, on account of interest on the Mortgage Loans
including Default Interest;
(iii) all Prepayment Premiums received in respect of the Mortgage
Loans;
(iv) all payments, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of the Mortgage Loans;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Certificate Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket or master single insurance
policy;
(vii) any amounts required to be transferred to the Certificate
Account from the REO Account pursuant to Section 3.16(c);
(viii) any amounts representing payments made by Mortgagors that are
allocable to cover items in respect of which Servicing Advances have been
made;
(ix) any proceeds from the repurchase or substitution of Mortgage
Loans under Section 2.03 of this Agreement; and
(x) insofar as they do not constitute Escrow Payments, any amounts
paid by a Mortgagor specifically to cover items for which a Servicing
Advance has been made or that represent a recovery of property protection
expenses from a Mortgagor;
provided that any amounts described above (other than clause (v) above)
that relate to a Loan Pair or any related REO Property (other than
Liquidation Proceeds derived from the sale of the related Mortgage Loan to
or through the related Companion Loan Noteholder pursuant to the related
Co-Lender Agreement or as a Specially Serviced Loan pursuant to Section
3.18) shall be deposited in the related Loan Pair Custodial Account, and,
in any such case, shall thereafter be transferred to the Certificate
Account as provided in Section 3.05(f).
The foregoing requirements for deposit in the Certificate Account
shall be exclusive. Without limiting the generality of the foregoing, actual
payments from Mortgagors in the nature of Escrow Payments, late payment charges,
assumption fees, assumption application fees, earnout fees, extension fees,
modification fees, charges for beneficiary statements or demands and amounts
collected for checks returned for insufficient funds, need not be deposited by
the Master Servicer in the Certificate Account. The Master Servicer shall
promptly deliver to the Special Servicer any of the foregoing items received by
it, if and to the extent that such items constitute Additional Special Servicing
Compensation payable to the Special Servicer. If the Master Servicer shall
deposit in the Certificate Account any amount not required to be deposited
therein, it may at any time withdraw such amount from the Certificate Account,
any provision herein to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) above with respect to any Loan (for the avoidance of doubt, not
including any REO Loan), the Special Servicer shall promptly, but in no event
later than one (1) Business Day after receipt of available funds, remit such
amounts to the Master Servicer for deposit into the Certificate Account in
accordance with the second preceding paragraph, unless the Special Servicer
determines, consistent with the Servicing Standard, that a particular item
should not be deposited because of a restrictive endorsement. Any such amounts
received by the Special Servicer with respect to an REO Property (other than an
REO Property related to a Loan Pair) shall be deposited by the Special Servicer
into the REO Account and remitted to the Master Servicer for deposit into the
Certificate Account pursuant to Section 3.16(c). With respect to any such
amounts paid by check to the order of the Special Servicer, the Special Servicer
shall endorse such check to the order of the Master Servicer unless the Special
Servicer determines, consistent with the Servicing Standard, that a particular
item cannot be so endorsed and delivered because of a restrictive endorsement.
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") to be held in trust for the
benefit of the Trust as holder of the Component Mortgage Loan REMIC Senior
Regular Interests, as holder of the REMIC I Regular Interests, and for the
Certificateholders. The Distribution Account shall be an Eligible Account. On or
prior to 1:00 p.m. New York City time on each Master Servicer Remittance Date,
the Master Servicer shall deliver to the Trustee, for deposit in the
Distribution Account, an aggregate amount of immediately available funds equal
to the Master Servicer Remittance Amount for such Master Servicer Remittance
Date. If, at 3:00 p.m., New York City time, on any Master Servicer Remittance
Date, the Trustee has not received the Master Servicer Remittance Amount, the
Trustee shall provide notice to the Master Servicer in the same manner as
required by Section 4.03(a) hereof with respect to P&I Advances.
In the event that the Master Servicer fails to remit the Master
Servicer Remittance Amount for such Master Servicer Remittance Date on the
related Master Servicer Remittance Date, the Master Servicer shall pay to the
Trustee interest at the Reimbursement Rate on the Master Servicer Remittance
Amount for the period from and including such Master Servicer Remittance Date to
but excluding the related Distribution Date.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee for deposit in the Distribution Account:
(i) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03(a);
(ii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.19(e) in connection with Prepayment Interest
Shortfalls; and
(iii) any Liquidation Proceeds paid by the Master Servicer or a
Majority Certificateholder of the Controlling Class in connection with the
purchase of all of the Mortgage Loans and any REO Properties pursuant to
Section 9.01, exclusive of the portion of such Liquidation Proceeds
required to be deposited in the Certificate Account pursuant to Section
9.01.
The Trustee shall, upon receipt, deposit in the Distribution Account
any and all amounts received or advanced by the Trustee that are required by the
terms of this Agreement to be deposited therein.
All such amounts deposited in respect of the ES Component Mortgage
Loan shall be deemed to be deposited in the Component Mortgage Loan REMIC
Distribution Account and, on each Distribution Date, deemed to be distributed to
the REMIC I Distribution Account in respect of the related Component Mortgage
Loan REMIC Senior Regular Interest pursuant to Sections 4.01(i)(i), (ii) and
(iii) hereof, distributed to the Corresponding Class of Class ES Certificates in
respect of the ES Component Mortgage Loan Subordinate Component pursuant to
Sections 4.01(i)(iv) to (xxvii) hereof and distributed to the Class R-I
Certificates in respect of the Component Mortgage Loan REMIC Residual Interest
pursuant to Section 4.01(i)(xxviii) hereof.
All such amounts deposited in respect of the SB Component Mortgage
Loan shall be deemed to be deposited in the Component Mortgage Loan REMIC
Distribution Account and, on each Distribution Date, deemed to be distributed to
the REMIC I Distribution Account in respect of the related Component Mortgage
Loan REMIC Senior Regular Interest pursuant to Sections 4.01(j)(i), (ii) and
(iii) hereof, distributed to the Corresponding Class of Class SB Certificates in
respect of the SB Component Mortgage Loan Subordinate Component pursuant to
Sections 4.01(j)(iv) to (xviii) hereof and distributed to the Class R-I
Certificates in respect of the Component Mortgage Loan REMIC Residual Interest
pursuant to Section 4.01(j)(xix) hereof.
(c) (i) The Trustee shall establish and maintain the REMIC I
Distribution Account, as a sub-account of the Distribution Account, in the
name of the Trustee, in trust for the benefit of the Certificateholders
(other than the Class ES Certificateholders, the Class SB
Certificateholders, the Class R-I Certificateholders in respect of the
Component Mortgage Loan REMIC Residual Interest). The REMIC I Distribution
Account shall be established and maintained as an Eligible Account or as a
sub-account of the Distribution Account. With respect to each Distribution
Date, the Trustee shall withdraw or be deemed to withdraw from the REMIC I
Distribution Account and deposit or be deemed to deposit in the REMIC II
Distribution Account on or before such date the amount of the Available
Distribution Amount (including P&I Advances) and Prepayment Premiums to be
distributed in respect of the REMIC I Regular Interests pursuant to
Section 4.01(a)(i) and Section 4.01(c)(iv) hereof on such date.
(ii) The Trustee shall establish and maintain the REMIC II
Distribution Account, as a sub-account of the Distribution Account, in the
name of the Trustee, in trust for the benefit of the REMIC II
Certificateholders. The REMIC II Distribution Account shall be established
and maintained as an Eligible Account or as a sub-account of the
Distribution Account. With respect to each Distribution Date, the Trustee
shall withdraw or be deemed to withdraw from the REMIC II Distribution
Account the amount of the Available Distribution Amount (including P&I
Advances) and Prepayment Premiums to be distributed in respect of the
REMIC II Certificates pursuant to Section 4.01(b)(i) and Section
4.01(c)(i) hereof on such date.
(iii) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Component Mortgage Loan REMIC Distribution
Account") to be held in trust for the benefit of the Trust as holder of
the Component Mortgage Loan REMIC Senior Regular Interests, as holder of
the REMIC I Regular Interests and for the Certificateholders. The
Component Mortgage Loan REMIC Distribution Account shall at all times be
an Eligible Account or a sub-account of an Eligible Account.
(d) Funds in the Certificate Account may be invested only in
Permitted Investments in accordance with the provisions of Section 3.06. The
Master Servicer shall give notice to the other parties hereto of the location of
the Certificate Account as of the Closing Date and of the new location of the
Certificate Account prior to any change thereof. The Distribution Account, the
Component Mortgage Loan REMIC Distribution Account, the REMIC I Distribution
Account, the REMIC II Distribution Account and the Excess Liquidation Proceeds
Account shall be established at the Corporate Trust Office of the Trustee as of
the Closing Date, and the Trustee shall give notice to the other parties hereto
of the new location of the Distribution Account, the Component Mortgage Loan
REMIC Distribution Account, the REMIC I Distribution Account, the REMIC II
Distribution Account and the Excess Liquidation Proceeds Account prior to any
change thereof. Funds in the Excess Liquidation Proceeds Account shall remain
uninvested.
The Trustee shall establish and maintain one or more accounts or
sub-accounts (collectively, the "Excess Liquidation Proceeds Account") to be
held in trust for the benefit of the Certificateholders. Each account that
constitutes the Excess Liquidation Proceeds Account shall be an Eligible
Account. On each Master Servicer Remittance Date, the Master Servicer shall
withdraw from the Certificate Account and remit to the Trustee for deposit in
the Excess Liquidation Proceeds Account all Excess Liquidation Proceeds received
during the Collection Period ending on the Business Day prior to such Master
Servicer Remittance Date. Notwithstanding the foregoing, any Excess Liquidation
Proceeds with respect to the ES Component Mortgage Loan or SB Component Mortgage
Loan shall be deemed to be distributed by the Component Mortgage Loan REMIC in
respect of the Component Mortgage Loan REMIC Residual Interest and then
deposited in the Excess Liquidation Proceeds Account in respect of REMIC I.
(e) The Master Servicer shall establish and maintain one or more
Loan Pair Custodial Accounts in which the Master Servicer shall deposit or cause
to be deposited within one (1) Business Day of receipt (in the case of payments
by Mortgagors or other collections on or in respect of a Loan Pair) or as
otherwise required hereunder, 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, interest and any other amounts due and payable on such Loan Pair
on or before the Cut-off Date, which payments shall be held as provided in the
related Co-Lender Agreement):
(i) all payments, from whatever source, or transfers from a debt
service reserve account, on account of principal, including Principal
Prepayments, on such Loan Pair;
(ii) all payments, from whatever source, or transfers from a debt
service reserve account, on account of interest on such Loan Pair;
(iii) all Prepayment Premiums received in respect of such Loan Pair;
(iv) all payments, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of such Loan Pair;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in such Loan Pair Custodial
Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
with respect to such Loan Pair resulting from a deductible clause in a
blanket or master single insurance policy;
(vii) any amounts required to be transferred from the related REO
Account pursuant to Section 3.16(c);
(viii) any amounts representing payments made by Mortgagors that are
allocable to cover items in respect of which Servicing Advances have been
made; and
(ix) insofar as they do not constitute Escrow Payments, any amounts
paid by the related Mortgagor with respect to the Loan Pair specifically
to cover items for which a Servicing Advance has been made or that
represent a recovery of property protection expenses from a Mortgagor.
The foregoing requirements for deposit in the Loan Pair Custodial Account
shall be exclusive. Without limiting the generality of the foregoing, actual
payments from Mortgagors in the nature of Escrow Payments, Reserve Funds,
assumption fees, assumption application fees, earnout fees, extension fees,
modification fees, charges for beneficiary statements or demands and amounts
collected for checks returned for insufficient funds, need not be deposited by
the Master Servicer in the Loan Pair Custodial Account. The Master Servicer
shall promptly deliver to the Special Servicer any of the foregoing items
received by it, if and to the extent that such items constitute Additional
Special Servicing Compensation payable to the Special Servicer. If the Master
Servicer shall deposit in the Loan Pair Custodial Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
such Loan Pair Custodial Account, any provision herein to the contrary
notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through (iv)
and (viii) above with respect to such Loan Pair (for the avoidance of doubt, not
including any REO Loan), the Special Servicer shall promptly, but in no event
later than one (1) Business Day after receipt of available funds, remit such
amounts to the Master Servicer for deposit into the applicable Loan Pair
Custodial Account in accordance with the second preceding paragraph, unless the
Special Servicer determines, consistent with the Servicing Standard, that a
particular item should not be deposited because of a restrictive endorsement.
Any such amounts received by the Special Servicer with respect to an REO
Property (other than an REO Property that is not related to a Loan Pair) shall
be deposited by the Special Servicer into the related REO Account and remitted
to the Master Servicer for deposit into the related Loan Pair Custodial Account
pursuant to Section 3.16(c). With respect to any such amounts paid by check to
the order of the Special Servicer, the Special Servicer shall endorse such check
to the order of the Master Servicer unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item cannot be so
endorsed and delivered because of a restrictive endorsement.
Funds in a Loan Pair Custodial Account may only be invested in Permitted
Investments in accordance with the provisions of Section 3.06. The Master
Servicer shall give notice to the Trustee, the Special Servicer, the Depositor,
the related CBA B Noteholder (if a CBA A/B Mortgage Loan is involved) and the
Wellbridge Note B Holder and the Wellbridge Senior Companion Loan Noteholders
(if the Wellbridge A/B Mortgage Loan is involved) the location of each Loan Pair
Custodial Account as of the Closing Date and of the new location of a Loan Pair
Custodial Account prior to any change thereof.
SECTION 3.05 Permitted Withdrawals From the Certificate Account,
the Distribution Account, the Loan Pair Custodial
Accounts and the Excess Liquidation Proceeds Account.
(a) The Master Servicer may, from time to time, make withdrawals
from the Certificate Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee no later than 4:00 p.m. (New York time)
for deposit in the Distribution Account, the Master Servicer Remittance
Amount for, and, to the extent permitted or required by Section 4.03(a),
as applicable, any P&I Advances to be made on, each Master Servicer
Remittance Date;
(ii) to reimburse the Master Servicer, the Trustee or the Fiscal
Agent, as applicable, for xxxxxxxxxxxx X&X Advances made thereby (in each
case, with its own funds), the Master Servicer's, the Trustee's and the
Fiscal Agent's, as the case may be, respective rights to reimbursement
pursuant to this clause (ii) with respect to any P&I Advance (other than
Nonrecoverable P&I Advances, which are reimbursable pursuant to clause
(vii) below) being limited to amounts that represent Late Collections of
interest and principal received in respect of the particular Mortgage Loan
or REO Loan as to which such P&I Advance was made (net of related Master
Servicing Fees and/or Workout Fees) (exclusive of each Mortgage Loan or
REO Loan included in a Loan Pair);
(iii) to pay to the Master Servicer earned and unpaid Master
Servicing Fees in respect of each Mortgage Loan and REO Loan (exclusive of
each Mortgage Loan or REO Loan included in a Loan Pair), the Master
Servicer's right to payment pursuant to this clause (iii) with respect to
any Mortgage Loan or REO Loan (exclusive of each Mortgage Loan or REO Loan
included in a Loan Pair) being payable from, and limited to, amounts
received on or in respect of such Mortgage Loan (whether in the form of
payments, Liquidation Proceeds, Condemnation Proceeds or Insurance
Proceeds) or such REO Loan (whether in the form of REO Revenues,
Liquidation Proceeds or Insurance Proceeds) that are allocable as a
recovery of interest thereon;
(iv) to pay to the Special Servicer, out of general collections on
the Mortgage Loans and any REO Properties, earned and unpaid Special
Servicing Fees in respect of each Specially Serviced Loan and REO Loan
(exclusive of each Companion Loan);
(v) to pay to the Special Servicer earned and unpaid Workout Fees
and Liquidation Fees to which it is entitled pursuant to, and from the
sources contemplated by Section 3.11(c);
(vi) to reimburse itself, the Special Servicer, the Trustee or the
Fiscal Agent, as applicable, for any unreimbursed Servicing Advances made
thereby (in each case, with its own funds), the Master Servicer's, the
Special Servicer's, the Trustee's and the Fiscal Agent's, as the case may
be, respective rights to reimbursement pursuant to this clause (vi) with
respect to any Servicing Advance (other than Nonrecoverable Servicing
Advances, which are reimbursable pursuant to clause (vii) below) being
limited to (A) payments made by the related Mortgagor that are allocable
to cover the item in respect of which such Servicing Advance was made, and
(B) Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and,
if applicable, REO Revenues received in respect of the particular Mortgage
Loan or REO Property (exclusive of each Mortgage Loan or REO Loan included
in a Loan Pair or any REO Property securing a Loan Pair) as to which such
Servicing Advance was made;
(vii) to reimburse the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent, as applicable, out of general collections on
the Mortgage Loans and any REO Properties (exclusive of each Companion
Loan), for any unreimbursed Advances made thereby that have been
determined to be Nonrecoverable Advances;
(viii) to pay the Trustee, the Fiscal Agent, the Master Servicer, or
the Special Servicer as applicable, any Advance Interest due and owing
thereto out of Default Charges collected on the Mortgage Pool, as and to
the extent contemplated by Section 3.27;
(ix) to the extent that, during any Collection Period, the Master
Servicer has reimbursed or is reimbursing itself, the Special Servicer,
the Trustee or the Fiscal Agent, as applicable, for any unreimbursed
Advance pursuant to clause (ii), (vi) or (vii) above or pursuant to
Section 3.03, and insofar as payment has not already been made, and the
Default Charges then on deposit in the Certificate Account is not
sufficient to make such payment pursuant to clause (viii) above, to pay
the Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent, as the case may be, out of general collections on the Mortgage
Loans and any REO Properties (exclusive of each Mortgage Loan or REO Loan
included in a Loan Pair or any REO Property securing a Loan Pair), any
related Advance Interest accrued and payable on the portion of such
Advance so reimbursed or being reimbursed;
(x) to pay any outstanding expense, other than Advance Interest,
that was incurred with respect to any Mortgage Loan or REO Loan (exclusive
of each Mortgage Loan or REO Loan included in a Loan Pair) and that, if
paid from a source other than Default Charges collected on the Mortgage
Pool, would constitute an Additional Trust Fund Expense, such payment to
be made out of Default Charges collected on the Mortgage Pool, as and to
the extent contemplated by Section 3.27;
(xi) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the Special Servicer any items of Additional
Special Servicing Compensation to which it is entitled, in each case from
funds on deposit in the Certificate Account from time to time;
(xii) to pay any unpaid Liquidation Expenses incurred with respect
to any Mortgage Loan or REO Property (exclusive of each Mortgage Loan or
REO Loan included in a Loan Pair or any REO Property securing a Loan Pair)
such payments to be made, first, out of payments, Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds and, if applicable, REO
Revenues received in respect of such Mortgage Loan or REO Property, as the
case may be, and then, out of general collections on other Mortgage Loans
and REO Properties (exclusive of each Mortgage Loan or REO Loan included
in a Loan Pair or any REO Property securing a Loan Pair);
(xiii) to pay, in accordance with Section 3.11(i), out of general
collections on the Mortgage Loans and any REO Properties (exclusive of
each Mortgage Loan or REO Loan included in a Loan Pair or any REO Property
securing a Loan Pair), certain servicing expenses that would, if advanced,
constitute Nonrecoverable Servicing Advances;
(xiv) to pay, out of general collections on the Mortgage Loans and
any REO Properties (exclusive of each Mortgage Loan or REO Loan included
in a Loan Pair or any REO Property securing a Loan Pair), costs and
expenses incurred by the Trust Fund pursuant to Section 3.09(c) (other
than the costs of environmental testing, which are to be covered by, and
reimbursable as, a Servicing Advance);
(xv) to pay itself, the Special Servicer, the Depositor, the
Trustee, or any of their respective directors, officers, members,
managers, employees and agents, as the case may be, out of general
collections on the Mortgage Loans and any REO Properties any amounts
payable to any such Person pursuant to Section 6.03, Section 7.01(b),
Section 8.05(b), or Section 8.13, as applicable;
(xvi) to pay, out of general collections on the Mortgage Loans and
REO Properties (exclusive of each Mortgage Loan or REO Loan included in a
Loan Pair or any REO Property securing a Loan Pair), for the cost of
recording this Agreement in accordance with Section 11.02(a);
(xvii) to pay, out of general collections on the Mortgage Loans and
any REO Properties (exclusive of each Mortgage Loan or REO Loan included
in a Loan Pair or any REO Property securing a Loan Pair), any reasonable
out-of-pocket cost or expense (including the reasonable fees of tax
accountants and attorneys) incurred by the Trustee pursuant to Section
3.17(b) in connection with providing advice to the Special Servicer;
(xviii) to pay to the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent or the Depositor, as the case may be, any amount
specifically required to be paid to such Person at the expense of the
Trust Fund under any provision of this Agreement to which reference is not
made in any other clause of this Section 3.05(a) (exclusive of any such
amount arising in respect of a Mortgage Loan included in a Loan Pair), it
being acknowledged that this clause (xviii) shall not be construed to
modify any limitation otherwise set forth in this Agreement on the time at
which any Person is entitled to payment or reimbursement of any amount or
the funds from which any such payment or reimbursement is permitted to be
made;
(xix) to pay the Master Servicer, the Special Servicer, the Mortgage
Loan Seller, a Controlling Class Certificateholder or any other particular
Person, as the case may be, with respect to each Mortgage Loan (exclusive
of each Mortgage Loan included in a Loan Pair), if any, previously
purchased or otherwise removed from the Trust Fund by such Person pursuant
to or as contemplated by this Agreement, all amounts received thereon
subsequent to the date of purchase;
(xx) to transfer Excess Liquidation Proceeds (exclusive of Excess
Liquidation Proceeds received with respect to a Mortgage Loan included in
a Loan Pair) to the Excess Liquidation Proceeds Account in accordance with
Section 3.04(d);
(xxi) to withdraw any amounts deposited in error; and
(xxii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Certificate Account at any particular
time (after withdrawing any portion of such amounts deposited in the Certificate
Account in error) are insufficient to satisfy all payments, reimbursements and
remittances to be made therefrom as set forth in clauses (ii) through (xx)
above, then the corresponding withdrawals from the Certificate Account shall be
made in the following priority and subject to the following rules: (A) if the
payment, reimbursement or remittance is to be made from a specific source of
funds, then such payment, reimbursement or remittance shall be made from that
specific source of funds on a pro rata basis with any and all other payments,
reimbursements and remittances to be made from such specific source of funds;
and (B) if the payment, reimbursement or remittance can be made from any funds
on deposit in the Certificate Account, then (following any withdrawals made from
the Certificate Account in accordance with the immediately preceding clause (A)
above) such payment, reimbursement or remittance shall be made from such general
funds remaining on a pro rata basis with any and all other payments,
reimbursements or remittances to be made from such general funds; provided that
any reimbursements of Advances in respect of any particular Mortgage Loan or REO
Property out of the Certificate Account pursuant to any of clauses (ii), (vi)
and (vii) above, and any payments of interest thereon out of the Certificate
Account pursuant to either of clauses (viii) and (ix) above, shall be made (to
the extent of their respective entitlements to such reimbursements and/or
payments): first, to the Fiscal Agent; and second, to the Trustee; and third,
pro rata, to the Master Servicer and Special Servicer. Any amounts withdrawn
from the Certificate Account pursuant to clauses (ii) through (xvi) above that
are specific to the ES Component Mortgage Loan and the SB Component Mortgage
Loan shall be allocated to the Component Mortgage Loan REMIC (in respect of the
ES Component Mortgage Loan and the SB Component Mortgage Loan, as applicable);
any amount so withdrawn that is specific to a Majority Mortgage Loan shall be
allocated to REMIC I; and any amount so withdrawn that is not specific to a
particular Mortgage Loan shall be allocated by the REMIC Administrator between
REMIC I and the Component Mortgage Loan REMIC in proportion to the Stated
Principal Balances of their related Mortgage Loans.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis (and on a property-by-property basis for REO
Loans) when appropriate, in connection with any withdrawal from the Certificate
Account pursuant to clauses (ii) through (xix) above sufficient to determine the
amounts attributable to the Component Mortgage Loan REMIC (with respect to the
ES Component Mortgage Loan and the SB Component Mortgage Loan) and REMIC I (with
respect to the Majority Mortgage Loans).
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer) from the Certificate
Account amounts permitted to be paid to it (or to such third party contractors)
therefrom promptly upon receipt of a certificate of a Servicing Officer of the
Special Servicer describing the item and amount to which the Special Servicer
(or such third party contractors) is entitled. The Master Servicer may rely
conclusively on any such certificate and shall have no duty to re-calculate the
amounts stated therein. The Special Servicer shall keep and maintain separate
accounting for each Specially Serviced Loan and REO Property, on a loan-by-loan
and property-by-property basis, for the purpose of justifying any request for
withdrawal from the Certificate Account.
(b) The Trustee may, from time to time, make withdrawals from the
Component Mortgage Loan REMIC Distribution Account and REMIC I Distribution
Account for any of the following purposes (the order set forth below not
constituting an order of priority for such withdrawals):
(i) to be deemed to transfer from the Component Mortgage Loan REMIC
Distribution Account to the REMIC I Distribution Account amounts
distributable in respect of each Component Mortgage Loan REMIC Senior
Regular Interest and to make distributions to the Class ES Certificates,
Class SB Certificates and Class R-I Certificates pursuant to Sections
4.01(i) and 4.01(j), as applicable, and as contemplated by Section
3.04(c)(iii); and to be deemed to transfer from the REMIC I Distribution
Account to the REMIC II Distribution Account on or before the related
Distribution Date the Available Distribution Amount and the Class WB
Available Distribution Amount as provided in Section 4.01(a)(ii) and
Prepayment Premiums to be distributed in respect of the REMIC I Regular
Interests, as contemplated by Section 4.01(c)(i);
(ii) to pay the Trustee accrued and unpaid Trustee Fees pursuant to
Section 8.05(a) and to reimburse the Trustee for any other amounts to
which it is entitled to be reimbursed from the Distribution Account
pursuant to this Agreement;
(iii) to pay the Trustee or any of its respective directors,
officers, employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05(b);
(iv) as contemplated by Section 11.01(h), to pay for the reasonable
costs of the Opinions of Counsel sought by the Trustee as contemplated by
Section 11.01(a) or 11.01(d) in connection with any amendment to this
Agreement requested by the Trustee which amendment is in furtherance of
the rights and interests of Certificateholders;
(v) to pay for the reasonable costs of the Opinions of Counsel
sought by the Trustee as contemplated by Section 11.02(a);
(vi) to (A) pay any and all federal, state and local taxes imposed
on the Component Mortgage Loan REMIC, REMIC I or REMIC II or on the assets
or transactions of any such REMIC, together with all incidental costs and
expenses, and any and all reasonable expenses relating to tax audits, if
and to the extent that either (1) none of the Trustee, the Master
Servicer, the Special Servicer or the REMIC Administrator is liable
therefor pursuant to Section 10.01(d) and/or Section 10.01(h) or (2) any
such Person that may be so liable has failed to timely make the required
payment, and (B) reimburse the REMIC Administrator for reasonable expenses
incurred by and reimbursable to it by the Trust pursuant to Section
10.01(d) and/or Section 10.01(h); and
(vii) to transfer from the Component Mortgage Loan REMIC
Distribution Account (in respect of the ES Component Mortgage Loan Senior
Component and the SB Component Mortgage Loan Senior Component) and the
REMIC I Distribution Account to the Interest Reserve Account an amount
equal to the Withheld Amounts for the one (1) month period preceding the
Distribution Date in each February (and in any January of a year which is
not a leap year) pursuant to Section 4.05; and
(viii) to clear and terminate the Component Mortgage Loan REMIC
Distribution Account and the REMIC I Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
Taxes imposed on the Component Mortgage Loan REMIC, REMIC I or REMIC
II shall be allocated to the related REMIC, and amounts withdrawn from the
Distribution Account pursuant to clauses (ii) through (v) above shall be
allocated by the REMIC Administrator between REMIC I and the Component Mortgage
Loan REMIC in proportion to the Stated Principal Balances of their related
Mortgage Loans (minus, in the case of the Component Mortgage Loan REMIC, the
Class Principal Balance of the Corresponding Class ES Certificates and the Class
Principal Balance of the Corresponding Class SB Certificates).
(c) The Trustee shall be deemed to make withdrawals from the REMIC
II Distribution Account for any of the following purposes: (i) to make
distributions to Certificateholders (other than Holders of the Class R-I
Certificates, the Class ES Certificates and the Class SB Certificates) on each
Distribution Date pursuant to Section 4.01(b), Section 4.01(c)(i) or Section
9.01, as applicable; and (ii) to clear and terminate the REMIC II Distribution
Account at the termination of this Agreement pursuant to Section 9.01.
(d) On each Distribution Date, the Trustee shall withdraw from the
Excess Liquidation Proceeds Account and deposit in the Distribution Account, for
distribution on such Distribution Date, an amount equal to the lesser of (i) the
entire amount, if any, then on deposit in the Excess Liquidation Proceeds
Account and (ii) the excess, if any, of the aggregate amount distributable on
such Distribution Date pursuant to Sections 4.01(a) and 4.01(b), over the
Available Distribution Amount for such Distribution Date (calculated without
regard to such transfer from the Excess Liquidation Proceeds Account to the
Distribution Account); provided that on the Business Day prior to the Final
Distribution Date, the Trustee shall withdraw from the Excess Liquidation
Proceeds Account and deposit in the Distribution Account, for distribution on
such Distribution Date, any and all amounts then on deposit in the Excess
Liquidation Proceeds Account.
(e) The Trustee, the Depositor, the Master Servicer and the Special
Servicer shall in all cases have a right prior to the Certificateholders to any
particular funds on deposit in the Certificate Account and the Distribution
Account from time to time for the reimbursement or payment of compensation,
Advances (with interest thereon at the Reimbursement Rate) and their respective
expenses hereunder, but only if and to the extent such compensation, Advances
(with interest) and expenses are to be reimbursed or paid from such particular
funds on deposit in the Certificate Account or the Distribution Account pursuant
to the express terms of this Agreement.
(f) The Master Servicer may (and, with respect to clause (i),
shall), from time to time, make withdrawals from each Loan Pair Custodial
Account, for any of the following purposes (the order set forth below not
constituting an order of priority for such withdrawals):
(i) to make remittances each month no later than the Master Servicer
Remittance Date, in an aggregate amount of immediately available funds
equal to the applicable Loan Pair Remittance Amount, to the related
Companion Loan Noteholders and to the Certificate Account for the benefit
of the Trust (as holder of the related Mortgage Loan or any related REO
Loan), in accordance with Sections 3 and 4 of the Wellbridge Co-Lender
Agreement (provided that Liquidation Proceeds, net of fees and expenses,
relating to the repurchase of any Wellbridge Senior Companion Note by the
related mortgage loan seller or the purchase of any Wellbridge Senior
Companion Note by the holder of any other Wellbridge Senior Companion Note
shall be remitted solely to the holders of such Wellbridge Senior
Companion Note, and Liquidation Proceeds relating to the repurchase of the
Wellbridge Mortgage Loan or the Wellbridge Note B Loan by the Mortgage
Loan Seller or the purchase of the Wellbridge Mortgage Loan or Wellbridge
Note B Loan by the holder of any other Companion Loan shall be remitted
solely to the Distribution Account subject to deduction therefrom for fees
and reimbursements pursuant to this Section 3.05(f)) and Section 3 or 4,
as applicable, of each CBA Co-Lender Agreement, such remittances to the
Trustee to be made into the Distribution Account;
(ii) to reimburse the Master Servicer, the Trustee or the Fiscal
Agent, as applicable, for xxxxxxxxxxxx X&X Advances made with respect to
such Loan Pair (in each case, with its own funds), the Master Servicer's,
the Trustee's and the Fiscal Agent's, as the case may be, respective
rights to reimbursement pursuant to this clause (ii) with respect to any
P&I Advance (other than Nonrecoverable P&I Advances, which are
reimbursable pursuant to clause (vii) below) being limited to amounts that
represent Late Collections of interest and principal received in respect
of the particular Loan Pair as to which such P&I Advance was made (net of
related Master Servicing Fees and/or Workout Fees) (as such reimbursement
is subordinated with respect to P&I Advances made on the Wellbridge Note B
as set forth in Section 4.03 of this Agreement and in the Wellbridge
Co-Lender Agreement);
(iii) to pay to the Master Servicer earned and unpaid Master
Servicing Fees in respect of such Loan Pair and related REO Loan, the
Master Servicer's right to payment pursuant to this clause (iii) with
respect to any Loan Pair or REO Loan being payable from, and limited to,
amounts received on or in respect of such Loan Pair (whether in the form
of payments, Liquidation Proceeds, Condemnation Proceeds or Insurance
Proceeds) or such REO Loan (whether in the form of REO Revenues,
Liquidation Proceeds or Insurance Proceeds) that are allocable as a
recovery of interest thereon;
(iv) to pay to the Special Servicer, out of general collections on
such Loan Pair and related REO Properties, earned and unpaid Special
Servicing Fees in respect of such Loan Pair and related REO Properties;
(v) to pay to the Special Servicer earned and unpaid Workout Fees
and Liquidation Fees to which it is entitled pursuant to, and from the
sources contemplated by Section 3.11(c);
(vi) to reimburse itself, the Special Servicer, the Trustee or the
Fiscal Agent, as applicable, for any unreimbursed Servicing Advances with
respect to such Loan Pair or related REO Property made thereby (in each
case, with its own funds), the Master Servicer's, the Special Servicer's,
the Trustee's and the Fiscal Agent's, as the case may be, respective
rights to reimbursement pursuant to this clause (vi) with respect to any
Servicing Advance (other than Nonrecoverable Servicing Advances, which are
reimbursable pursuant to clause (vii) below) being limited to (A) payments
made by the related Mortgagor that are allocable to cover the item in
respect of which such Servicing Advance was made, and (B) Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds and, if applicable,
REO Revenues received in respect of such Loan Pair or REO Property as to
which such Servicing Advance was made;
(vii) to reimburse the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent, as applicable, out of general collections on
such Loan Pair or REO Property, for any unreimbursed related Advances made
thereby that have been determined to be Nonrecoverable Advances;
(viii) to pay the Trustee, the Fiscal Agent, the Master Servicer, or
the Special Servicer as applicable, any Advance Interest due and owing
thereto out of Default Charges collected on such Loan Pair, as and to the
extent contemplated by Section 3.27;
(ix) to the extent that, during any Collection Period, the Master
Servicer has reimbursed or is reimbursing itself, the Special Servicer,
the Trustee or the Fiscal Agent, as applicable, for any unreimbursed
Advance pursuant to clause (ii), (vi) or (vii) above or pursuant to
Section 3.03, and insofar as payment has not already been made, and the
Default Charges then on deposit in such Loan Pair Custodial Account is not
sufficient to make such payment pursuant to clause (viii) above, to pay
the Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent, as the case may be, out of general collections on such Loan Pair
and related REO Property, any related Advance Interest accrued and payable
on the portion of such Advance so reimbursed or being reimbursed;
(x) to pay any outstanding expense, other than Advance Interest,
that was incurred with respect to such Loan Pair and that, if paid from a
source other than Default Charges collected on such Loan Pair, would
constitute an Additional Trust Fund Expense, such payment to be made out
of Default Charges collected on such Loan Pair, as and to the extent
contemplated by Section 3.27;
(xi) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the Special Servicer any items of Additional
Special Servicing Compensation to which it is entitled, in each case from
funds collected on such Loan Pair that are on deposit in such Loan Pair
Custodial Account from time to time;
(xii) to pay any unpaid Liquidation Expenses incurred with respect
to such Loan Pair or REO Property, such payments to be made, first, out of
payments, Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds and, if applicable, REO Revenues received in respect of such Loan
Pair or REO Property, as the case may be, and then, out of general
collections on such Loan Pair or REO Property;
(xiii) to pay, in accordance with Section 3.11(i), out of general
collections on such Loan Pair and REO Property, certain servicing expenses
that would, if advanced, constitute Nonrecoverable Servicing Advances;
(xiv) to pay, out of general collections on such Loan Pair and REO
Property, costs and expenses incurred by the related Companion Loan
Noteholder pursuant to Section 3.09(c) (other than the costs of
environmental testing, which are to be covered by, and reimbursable as, a
Servicing Advance);
(xv) to pay itself, the Special Servicer, the Depositor, the
Trustee, the Fiscal Agent, or any of their respective directors, officers,
members, managers, employees and agents, as the case may be, out of
general collections on such Loan Pair or REO Property, any amounts payable
to any such Person pursuant to Section 6.03, Section 7.01(b) or Section
8.05(b), as applicable with respect to such Loan Pair;
(xvi) [RESERVED];
(xvii) to pay, out of general collections on such Loan Pair and REO
Property, any reasonable out-of-pocket cost or expense (including the
reasonable fees of tax accountants and attorneys) incurred by the Trustee
pursuant to Section 3.17(b) in connection with providing advice to the
Special Servicer with respect to such Loan Pair;
(xviii) to pay to the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent or the Depositor, as the case may be, to the
extent that such amount is related to the Mortgage Loan included in such
Loan Pair, any amount specifically required to be paid to such Person at
the expense of the Trust Fund under any provision of this Agreement to
which reference is not made in any other clause of this Section 3.05(f),
it being acknowledged that this clause (xviii) shall not be construed to
modify any limitation otherwise set forth in this Agreement on the time at
which any Person is entitled to payment or reimbursement of any amount or
the funds from which any such payment or reimbursement is permitted to be
made;
(xix) to pay the Master Servicer, the Special Servicer, the Mortgage
Loan Seller, a Controlling Class Certificateholder or any other particular
Person, as the case may be, with respect to the Mortgage Loan related to
such Loan Pair, if any, previously purchased or otherwise removed from the
Trust Fund by such Person pursuant to or as contemplated by this
Agreement, all amounts received thereon subsequent to the date of
purchase;
(xx) to transfer Excess Liquidation Proceeds related to the Mortgage
Loan included in such Loan Pair to the Excess Liquidation Proceeds Account
in accordance with Section 3.04(e);
(xxi) to withdraw any amounts deposited into such Loan Pair
Custodial Account in error; and
(xxii) to clear and terminate such Loan Pair Custodial Account at
the termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in such Loan Pair Custodial Account at any
particular time (after withdrawing any portion of such amounts deposited in the
Loan Pair Custodial Account in error) are insufficient to satisfy all payments,
reimbursements and remittances to be made therefrom as set forth in clauses (ii)
through (xx) above, then the corresponding withdrawals from such Loan Pair
Custodial Account shall be made in the following priority and subject to the
following rules: (A) if the payment, reimbursement or remittance is to be made
from a specific source of funds, then such payment, reimbursement or remittance
shall be made from that specific source of funds on a pro rata basis with any
and all other payments, reimbursements and remittances to be made from such
specific source of funds; and (B) if the payment, reimbursement or remittance
can be made from any funds on deposit in such Loan Pair Custodial Account, then
(following any withdrawals made from such Loan Pair Custodial Account in
accordance with the immediately preceding clause (A) above) such payment,
reimbursement or remittance shall be made from such general funds remaining on a
pro rata basis with any and all other payments, reimbursements or remittances to
be made from such general funds; provided that any reimbursements of Advances in
respect of such Loan Pair or REO Property out of such Loan Pair Custodial
Account pursuant to any of clauses (ii), (vi) and (vii) above, and any payments
of interest thereon out of such Loan Pair Custodial Account pursuant to either
of clauses (viii) and (ix) above, shall be made (to the extent of their
respective entitlements to such reimbursements and/or payments): first, to the
Fiscal Agent; second, to the Trustee; and third, pro rata, to the Master
Servicer and Special Servicer.
Notwithstanding anything to the contrary in this Section 3.05(f),
the Master Servicer acknowledges its obligations under the Wellbridge Co-Lender
Agreement to remit funds thereunder then due and owing to the Wellbridge Senior
Companion Loan Noteholders in the time frames set forth therein.
Notwithstanding anything contained in this Agreement to the
contrary, the Master Servicer or the Special Servicer, as applicable, shall be
permitted (but shall have no affirmative obligation whatsoever or be otherwise
required under this Agreement) to structure the time of recoveries of
Nonrecoverable Advances in such a manner as the Master Servicer or the Special
Servicer, as applicable, determines, in accordance with the Servicing Standard,
is in the best interest of the Certificateholders as a collective whole which
may include being reimbursed for Nonrecoverable Advances in installments over
time; provided, further, that, if the Master Servicer or the Special Servicer
elect to be reimbursed for any Nonrecoverable Advance in installments over time
as contemplated by the preceding proviso, then such party shall not be entitled
to interest payable out of the Trust Fund from and after the date that such
party could have first been reimbursed for such Advance out of the Certificate
Account (it being understood and agreed that this proviso shall in no way limit
the right of such party to receive interest on installments from any Person
other than the Trust that agrees to pay such interest).
SECTION 3.06 Investment of Funds in the Certificate Account, the
Component Mortgage Loan REMIC Distribution Account,
the REMIC I Distribution Account, the REMIC II
Distribution Account, the Interest Reserve Account
and the REO Account.
(a) The Master Servicer may direct any depository institution
maintaining the Certificate Account, the Servicing Account and each Loan Pair
Custodial Account, and the Special Servicer may direct any depository
institution maintaining each REO Account and the Trustee may direct any
depository institution maintaining the Interest Reserve Account, the Component
Mortgage Loan REMIC Distribution Account, the REMIC I Distribution Account and
the REMIC II Distribution Account to invest, or if it is such depository
institution, may itself invest, the funds held therein (each such account, for
purposes of this Section 3.06, an "Investment Account") only in one or more
Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, no later than the Business Day immediately preceding
the next succeeding date on which such funds are required to be withdrawn from
such account pursuant to this Agreement. All such Permitted Investments shall be
held to maturity, unless payable on demand, in which case such investments may
be sold at any time. Any investment of funds in an Investment Account shall be
made in the name of the Trustee for the benefit of the Certificateholders and,
in the case of a Permitted Investment in any Investment Account solely related
to a Loan Pair, the related Companion Noteholders (in its capacity as such). The
Master Servicer (with respect to Permitted Investments of amounts in the
Certificate Account, each Loan Pair Custodial Account and the Servicing Account)
and the Special Servicer (with respect to Permitted Investments of amounts in
each REO Account), on behalf of the Trustee for the benefit of the
Certificateholders and in the case of any Investment Account solely related to a
Loan Pair, the related Companion Loan Noteholders, and the Trustee (with respect
to the Interest Reserve Account, the Component Mortgage Loan REMIC Distribution
Account, the REMIC I Distribution Account and the REMIC II Distribution
Account), on behalf of the Certificateholders, shall (and the Trustee hereby
designates the Master Servicer, the Special Servicer or itself, as applicable,
as the Person that shall) (i) be the "entitlement holder" of any Permitted
Investment that is a "security entitlement" and (ii) maintain "control" of any
Permitted Investment that is either a "certificated security" or an
"uncertificated security". For purposes of this Section 3.06(a), the terms
"entitlement holder", "security entitlement", "control", "certificated security"
and "uncertificated security" shall have the meanings given such terms in
Revised Article 8 (1994 Revision) of the UCC, and "control" of any Permitted
Investment by the Master Servicer or the Special Servicer shall constitute
"control" by a Person designated by, and acting on behalf of, the Trustee for
purposes of Revised Article 8 (1994 Revision) of the UCC. If amounts on deposit
in an Investment Account are at any time invested in a Permitted Investment
payable on demand, the Master Servicer (in the case of the Certificate Account,
each Loan Pair Custodial Account and the Servicing Account) or the Special
Servicer (in the case of each REO Account) and the Trustee (in the case of the
Interest Reserve Account, the Component Mortgage Loan REMIC Distribution
Account, the REMIC I Distribution Account and the REMIC II Distribution Account)
shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (1) all amounts then payable thereunder and (2) the amount required to
be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer, 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) Whether or not the Master Servicer directs the investment of
funds in the Certificate Account, each Loan Pair Custodial Account and the
Servicing Account, interest and investment income realized on funds deposited
therein, to the extent of the Net Investment Earnings, if any, for each such
Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Master Servicer and shall be subject to its withdrawal
in accordance with Section 3.05(a) or Section 3.05(f), as applicable. Whether or
not the Special Servicer directs the investment of funds in each REO Account,
interest and investment income realized on funds deposited therein, to the
extent of the Net Investment Earnings, if any, for such Investment Account for
each Collection Period, shall be for the sole and exclusive benefit of the
Special Servicer and shall be subject to its withdrawal in accordance with
Section 3.16(b). Whether or not the Trustee directs the investment of funds in
the Interest Reserve Account, the Component Mortgage Loan REMIC Distribution
Account, the REMIC I Distribution Account and the REMIC II Distribution Account,
interest and investment income realized on funds deposited therein, to the
extent of Net Investment Earnings, if any, for each such Investment Account for
each Collection Period, shall be for the sole and exclusive benefit of the
Trustee and shall be subject to withdrawal by the Trustee. If any loss shall be
incurred in respect of any Permitted Investment on deposit in any Investment
Account, the Master Servicer (in the case of the Certificate Account, each Loan
Pair Custodial Account and the Servicing Account (with respect to funds invested
by the Master Servicer for its own account)), the Special Servicer (in the case
of each REO Account) and the Trustee (in the case of the Interest Reserve
Account, the Component Mortgage Loan REMIC Distribution Account, the REMIC I
Distribution Account and the REMIC II Distribution Account) shall promptly
deposit therein from its own funds, without right of reimbursement, no later
than the end of the Collection Period during which such loss was incurred, the
amount of the Net Investment Loss, if any, for such Collection Period. The
Trustee shall have no liability whatsoever with respect to any such losses,
except in respect to losses incurred in respect of any Permitted Investment on
deposit in the Interest Reserve Account, the Component Mortgage Loan REMIC
Distribution Account, the REMIC I Distribution Account and the REMIC II
Distribution Account.
(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 and the Master Servicer or the Special Servicer, as applicable, has
not taken such action, the Trustee may and, subject to Section 8.02, upon the
request of Holders of Certificates entitled to not less than 25% of the Voting
Rights allocated to any Class, shall take such action as may be appropriate to
enforce such payment or performance, including, without limitation, the
institution and prosecution of appropriate proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including, without
limitation, the calculation of the Available Distribution Amount and the Master
Servicer Remittance Amount, the amounts so invested (but not any interest earned
thereon) shall be deemed to remain on deposit in such Investment Account.
SECTION 3.07 Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.
(a) The Master Servicer shall use reasonable efforts consistent with
the Servicing Standard to cause each Mortgagor to maintain, and, if the
Mortgagor does not so maintain, the Master Servicer will itself cause to be
maintained, for each Mortgaged Property (including each Mortgaged Property
relating to any Specially Serviced Loan) all insurance coverage as is required,
subject to applicable law, under the related Loan documents; provided that, if
and to the extent that any such Loan documents permit the holder thereof any
discretion (by way of consent, approval or otherwise) as to the insurance
coverage that the related Mortgagor is required to maintain, the Master Servicer
shall exercise such discretion in a manner consistent with the Servicing
Standard, with a view towards requiring insurance comparable to that required
under other Loans with express provisions governing such matters and including
business interruption or rental loss insurance for at least 12 months; and
provided, further, that the Master Servicer shall be required to maintain such
insurance coverage upon the related Mortgagor's failure to do so only to the
extent that such insurance is available at commercially reasonable rates and the
Trustee, on behalf of the Trust, as mortgagee has an insurable interest. Subject
to Section 3.17(b), the Special Servicer shall also cause to be maintained for
each REO Property no less insurance coverage (to the extent available at
commercially reasonable rates) (A) than was previously required of the related
Mortgagor under the related Loan documents and (B), at a minimum, (i) hazard
insurance with a replacement cost rider, (ii) business interruption or rental
loss insurance for at least 12 months, and (iii) commercial general liability
insurance, in each case, in an amount customary for the type and geographic
location of such REO Property and consistent with the Servicing Standard;
provided that all such insurance required to be maintained by Master Servicer or
Special Servicer shall be obtained from Qualified Insurers that, in each case,
shall have a financial strength or claims-paying rating no lower than two rating
categories below the highest rated Certificates outstanding, and in any event no
lower than "A" from Fitch and "A" from S&P (or in such other form and amount or
issued by an insurer with such other financial strength or claims-paying ability
as would not, as confirmed in writing by the relevant Rating Agency, result in
an Adverse Rating Event. All such insurance policies shall contain (if they
insure against loss to property) a "standard" mortgagee clause, with loss
payable to the Master Servicer on behalf of the Trustee (in the case of
insurance maintained in respect of the Mortgage Loans), or shall name the
Trustee, (and in the case of a Loan Pair the related Companion Loan holder(s))
as the insured, with loss payable to the Special Servicer on behalf of the
Trustee (and in the case of a Loan Pair the related Companion Loan holder(s))
(in the case of insurance maintained in respect of REO Properties), and shall be
issued by an insurer authorized under applicable law to issue such insurance,
and, unless prohibited by the related Mortgage, may contain a deductible clause
(not in excess of a customary amount). Any amounts collected by the Master
Servicer or Special Servicer under any such policies (other than amounts to be
applied to the restoration or repair of the related Mortgaged Property or REO
Property or amounts to be released to the related Mortgagor, in each case in
accordance with the Servicing Standard) shall be deposited in the Certificate
Account or, if a Loan Pair is involved, the related Loan Pair Custodial Account,
subject to withdrawal pursuant to Section 3.05(a), or Section 3.05(f), as
applicable in the case of amounts received in respect of a Loan, or in the
applicable REO Account, subject to withdrawal pursuant to Section 3.16(c), in
the case of amounts received in respect of an REO Property. Any cost incurred by
the Master Servicer or Special Servicer in maintaining any such insurance shall
not, for purposes hereof, including calculating monthly distributions to
Certificateholders, be added to unpaid principal balance or Stated Principal
Balance of the related Loan, notwithstanding that the terms of such Loan so
permit; provided, however, that this sentence shall not limit the rights of the
Master Servicer or Special Servicer on behalf of the Trust or, if a Loan Pair is
involved, on behalf of the related Companion Loan Noteholders to enforce any
obligations of the related Mortgagor under such Loan. Costs to the Master
Servicer or Special Servicer of maintaining insurance policies pursuant to this
Section 3.07 shall be paid by and reimbursable to the Master Servicer or the
Special Servicer, as the case may be, as a Servicing Advance.
Notwithstanding the foregoing, if the Loan documents specifically
and expressly set forth terms requiring insurance coverage against terrorist or
similar acts for a Loan with a Stated Principal Balance greater than
$20,000,000, then the Master Servicer and the Special Servicer shall enforce the
terms of the related Loan documents in accordance with the Servicing Standard,
and if the Mortgagor fails to maintain such insurance, such failure shall
constitute a Servicing Transfer Event. To the extent the Loan documents do not
set forth specific terms requiring insurance coverage against terrorist or
similar acts and a Loan (x) requires a Mortgagor to maintain insurance policies
covering some or all of the risks contained in the Additional Exclusions or (y)
in accordance with the Servicing Standard, the Master Servicer has determined
that the Loan documents permit the lender to require the Mortgagor to maintain
insurance policies covering some or all the risks contained in the Additional
Exclusions (the covered risks required to be covered or which the lender has the
discretion to require to be covered being referred to as "Covered Risks"), the
Master Servicer shall use reasonable efforts in accordance with the Servicing
Standard to determine whether, upon renewal of the Mortgagor's property or
casualty insurance (including any all risk insurance policy), any of the Covered
Risks are excluded from coverage. If any of the Covered Risks are determined by
the Master Servicer to be excluded from coverage, the Master Servicer shall
request the Mortgagor to either (i) purchase insurance acceptable to the Master
Servicer in accordance with the Servicing Standard and in accordance with the
related Loan documents covering such Covered Risks or (ii) provide a written
explanation as to its reasons for failing to purchase such insurance.
Notwithstanding the foregoing, with the written consent of the Special Servicer
in accordance with the Servicing Standard the Master Servicer may waive the
requirement to procure insurance covering any of the Covered Risks if the Master
Servicer determines in accordance with the Servicing Standard that (1) insurance
covering any such Covered Risks is not available at a commercially reasonable
price, or (2) based on information reasonably available to the Master Servicer,
after due inquiry, any such Covered Risks are at that time not commonly insured
against for properties similar to the Mortgaged Property and located in or
around the region in which the Mortgaged Property is located unless the Stated
Principal Balance of the Loan is greater than $20,000,000. If the Stated
Principal Balance of the Loan is greater than $20,000,000, then the Master
Servicer must determine that the circumstances in both clauses (1) and (2) of
the immediately preceding sentence apply prior to waiving the Mortgagor's
requirement to procure insurance with respect to any Covered Risks. If the
Special Servicer fails to give a response to the Master Servicer as referenced
in the second preceding sentence within 10 Business Days of the Master Servicer
initially notifying the Special Servicer in writing of such request, the Master
Servicer shall promptly notify the Directing Certificateholder of such failure
of the Special Servicer to respond to such request. If the Directing
Certificateholder and/or the Special Servicer have not responded to the Master
Servicer within 10 Business Days of the notice referenced in the immediately
preceding sentence, the Master Servicer shall determine in accordance with the
Servicing Standard whether to require (or not require) the Mortgagor to maintain
such insurance. If the Master Servicer requires the Mortgagor to maintain such
insurance and the Mortgagor fails to maintain such insurance, to the extent such
insurance is then reasonably available, the Master Servicer shall then procure
such insurance in accordance with the Servicing Standard and such failure by the
Mortgagor shall constitute a Servicing Transfer Event. For purposes of computing
whether the $20,000,000 threshold described herein is met for a particular Loan,
if a Loan is secured by multiple Mortgaged Properties, then the amount subject
to the $20,000,000 threshold shall be the portion of the Stated Principal
Balance of the related Loan pro rated based on an individual Mortgaged
Property's appraised value as a percentage of the total appraised value of all
of the related Mortgaged Properties.
(b) If the Master Servicer or the Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy or master
force placed policy insuring against hazard losses on all of the Mortgage Loans
or REO Properties, as applicable, that it is required to service and administer
hereunder, then, to the extent such policy (i) is obtained from a Qualified
Insurer having a financial strength or claims-paying rating no lower than "A"
from Fitch and "A" from S&P or having such other financial strength or
claims-paying ability rating as would not, as confirmed in writing by the
relevant Rating Agency, result in an Adverse Rating Event and (ii) provides
protection equivalent to the individual policies otherwise required, the Master
Servicer or Special Servicer, as the case may be, shall conclusively be deemed
to have satisfied its obligation to cause hazard insurance to be maintained on
the related Mortgaged Properties or REO Properties, as applicable. Such policy
may contain a deductible clause (not in excess of a customary amount), in which
case the Master Servicer or the Special Servicer, as appropriate, shall, if
there shall not have been maintained on the related Mortgaged Property or REO
Property a hazard insurance policy complying with the requirements of Section
3.07(a), and there shall have been one or more losses that would have been
covered by such an individual policy, promptly deposit into the Certificate
Account from its own funds the amount not otherwise payable under the blanket or
master force placed policy in connection with such loss or losses because of
such deductible clause to the extent that any such deductible exceeds the
deductible limitation that pertained to the related Loan (or, in the absence of
any such deductible limitation, the deductible limitation for an individual
policy which is consistent with the Servicing Standard). The Master Servicer or
the Special Servicer, as appropriate, shall prepare and present, on behalf of
itself, the Trustee, the Certificateholders and, in the case of a Loan Pair, the
related Companion Loan Noteholders, claims under any such blanket or master
forced placed policy in a timely fashion in accordance with the terms of such
policy.
(c) Each of the Master Servicer and the Special Servicer shall at
all times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement during which Specially
Serviced Loans or REO Properties for which it is responsible exist as part of
the Trust Fund) keep in force with a Qualified Insurer having a financial
strength or claims-paying rating no lower than two rating categories below the
highest rated Certificates outstanding, and in any event no lower than "A" from
Fitch and "A" from S&P, a fidelity bond in such form and amount as would permit
it to be a qualified Xxxxxx Xxx seller-servicer of multifamily mortgage loans
(or in such other form and amount or issued by an insurer with such other
financial strength or claims-paying ability rating as would not result in an
Adverse Rating Event with respect to any Class of Rated Certificates (as
confirmed in writing to the Trustee by the relevant Rating Agency)). Each of the
Master Servicer and the Special Servicer shall be deemed to have complied with
the foregoing provision if an Affiliate thereof has such fidelity bond coverage
and, by the terms of such fidelity bond, the coverage afforded thereunder
extends to the Master Servicer or the Special Servicer, as the case may be. Such
fidelity bond shall provide that it may not be canceled without ten days' prior
written notice to the Trustee.
Each of the Master Servicer and the Special Servicer shall at all
times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement during which Specially
Serviced Loans and/or REO Properties for which it is responsible exist as part
of the Trust Fund) also keep in force with a Qualified Insurer having a
financial strength or claims-paying rating no lower than two rating categories
below the highest rated Certificates outstanding, and in any event no lower than
"A" from Fitch and "A" from S&P, a policy or policies of insurance covering loss
occasioned by the errors and omissions of its officers and employees in
connection with its servicing obligations hereunder, which policy or policies
shall be in such form and amount as would permit it to be a qualified Xxxxxx Xxx
seller-servicer of multifamily mortgage loans (or in such other form and amount
or issued by an insurer with such other financial strength or claims-paying
rating as would not result in an Adverse Rating Event with respect to any Class
of Rated Certificates (as confirmed in writing to the Trustee by the relevant
Rating Agency)). Each of the Master Servicer and the Special Servicer shall be
deemed to have complied with the foregoing provisions if an Affiliate thereof
has such insurance and, by the terms of such policy or policies, the coverage
afforded thereunder extends to the Master Servicer or the Special Servicer, as
the case may be. Any such errors and omissions policy shall provide that it may
not be canceled without ten days' prior written notice to the Trustee.
SECTION 3.08 Enforcement of Alienation Clauses.
(a) As to each Loan which contains a provision in the nature of a
(i) "due-on-sale" clause, which by its terms (1) provides that such 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 of a controlling
interest in the related Mortgagor; or (2) provides that such Loan may not be
assumed without the consent of the mortgagee in connection with any such sale or
other transfer, for so long as such Loan is included in the Trust Fund, or (ii)
as to each Loan which contains a provision in the nature of a
"due-on-encumbrance" clause, which by its terms: (1) provides that such 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 (2) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged Property,
each of the Master Servicer and the Special Servicer shall, on behalf of the
Trustee as the mortgagee of record, as to those Loans it is obligated to service
hereunder, exercise (or waive its right to exercise) any right it may have with
respect to such Loan (x) to accelerate the payments thereon, or (y) to withhold
its consent to any such sale or other transfer, in a manner consistent with the
Servicing Standard.
Notwithstanding anything to the contrary contained herein, neither
the Master Servicer nor the Special Servicer shall waive any right it has, or
grant any consent it is otherwise entitled to withhold, under any related
"due-on-sale" or "due-on-encumbrance" clause, unless both the Master Servicer
and the Special Servicer shall have followed the procedures set forth for those
Loans in the manner set forth in the immediately below clauses (i) through (vi):
(i) The Master Servicer shall not waive any right it has, or grant
any consent that it may otherwise withhold under any related "due-on-sale"
or "due-on-encumbrance" clause without first obtaining the consent of the
Special Servicer. The Special Servicer's consent shall be deemed given if
the Master Servicer shall have provided the Special Servicer written
notice of the matter together with all of the information set forth in the
last sentence of the first paragraph of clause (ii) below and the Special
Servicer shall not have responded in writing, via fax or e-mail within ten
(10) Business Days of such request (subject to any extensions of
applicable time periods required if the Special Servicer is required by
this Agreement to seek the consent of other third parties).
(ii) The Special Servicer shall not waive any right it has, or grant
any consent that it may otherwise withhold under any related "due-on-sale"
or "due-on-encumbrance" clause without obtaining the consent of the
Directing Certificateholder for (a) any Performing Loan which is a
Non-Partitioned Loan and/or a Post CAP Loan that has a then Stated
Principal Balance of $2,500,000 or greater or (b) for any Specially
Serviced Loan which is a Non-Partitioned Loan and/or a Post CAP Loan.
Consent by the Directing Certificateholder shall be deemed given if the
Special Servicer shall have provided the Directing Certificateholder
written notice of the matter together with all of the information set
forth in the immediately succeeding sentence and the Directing
Certificateholder shall not have responded in writing, via fax or e-mail
within ten (10) Business Days of such request. In connection with the
request set forth above, the Special Servicer shall provide to the
Directing Certificateholder written notice of the matter, a written
explanation of the surrounding circumstances, such additional information
as the Directing Certificateholder shall reasonably request and a request
for approval by the Directing Certificateholder.
(iii) With respect to the ES Component Mortgage Loan or the SB
Component Mortgage Loan for which an ES Control Appraisal Period or SB
Control Appraisal Period, as the case may be, does not exist, (A) the
Master Servicer with respect to those time periods when such Loan is a
Performing Loan shall not waive any right that it may have, or grant any
consent that it may otherwise withhold under any related "due-on-sale" or
"due-on-encumbrance" clause without obtaining the consent of the Special
Servicer, which consent shall not be given without the Special Servicer
first obtaining the consent of the ES Controlling Holder or SB Controlling
Holder, as applicable, and (B) the Special Servicer with respect to those
time periods when either such Loan is a Specially Serviced Loan shall not
waive any right that it may have, or grant any consent that it may
otherwise withhold under any related "due-on-sale" or "due-on-encumbrance"
clause without obtaining the consent of the ES Controlling Holder or SB
Controlling Holder, as applicable, in the case of the ES Component
Mortgage Loan or the SB Component Mortgage Loan, as applicable. Consent by
the ES Controlling Holder or SB Controlling Holder, as applicable, shall
be deemed given if the Master Servicer or Special Servicer, as applicable,
shall have provided the ES Controlling Holder or SB Controlling Holder, as
applicable, written notice of the matter together with all of the
information set forth in the last sentence of the first paragraph of
clause (ii) above and the ES Controlling Holder or SB Controlling Holder,
as applicable, shall not have responded in writing, via fax or e-mail
within ten (10) Business Days of such request.
(iv) With respect to the Wellbridge A/B Mortgage Loan, (A) the
Master Servicer with respect to those time periods when such Loan is a
Performing Loan shall not waive any right that it may have, or grant any
consent that it may otherwise withhold under any related "due-on-sale" or
"due-on-encumbrance" clause without obtaining the consent of the Special
Servicer, which consent shall not be given without the Special Servicer
first obtaining the consent of the Wellbridge Controlling Holder, and (B)
the Special Servicer with respect to those time periods when such Loan is
a Specially Serviced Loan shall not waive any right that it may have, or
grant any consent that it may otherwise withhold under any related
"due-on-sale" or "due-on-encumbrance" clause without obtaining the consent
of the Wellbridge Controlling Holder. Consent by the Wellbridge
Controlling Holder shall be deemed given if the Master Servicer or Special
Servicer, as applicable, shall have provided the Wellbridge Controlling
Holder written notice of the matter together with all of the information
set forth in the last sentence of the first paragraph of clause (ii) above
and the Wellbridge Controlling Holder shall not have responded in writing,
via fax or e-mail within ten (10) Business Days of such request.
(v) Notwithstanding the foregoing, solely with respect to the
consent or waiver of any "due-on-sale" clause as described in Section
3.08(a) hereof, if any Mortgage Loan:
(1) represents greater than 5% of the then outstanding
principal balance of the Mortgage Pool;
(2) has an outstanding principal balance of greater than
$20,000,000; or
(3) is one of the ten largest Mortgage Loans in the Trust
Fund based on outstanding Principal Balance,
then neither the Master Servicer nor Special Servicer shall waive any
right it has, or grant any consent it is otherwise entitled to withhold,
under any related "due-on-sale" clause until it has received written
confirmation from each Rating Agency that such action would not result in
the qualification (if applicable), downgrade or withdrawal of the rating
then assigned by such Rating Agency to any Class of Certificates.
(vi) Notwithstanding the foregoing, solely with respect to the
consent or waiver of any "due-on-encumbrance" clause as described in
Section 3.08(a) hereof, if any Loan:
(1) represents greater than 2% of the then outstanding
principal balance of the Mortgage Pool, or
(2) is at the time one of the ten (10) largest loans (by
outstanding principal balance) in the Mortgage Pool, and
(3) after taking into consideration any additional
indebtedness secured by the related Mortgaged Property,
the loan-to-value ratio for such Loan would be greater
than 85% or the debt service coverage ratio would be
less than 1.20x,
then neither the Master Servicer nor the Special Servicer, as the case may
be, shall waive any right it has, or grant any consent it is otherwise
entitled to withhold, under any related "due-on-encumbrance" clause
governing the transfer of any Mortgaged Property which secures, or
controlling interests in any Mortgagor under, a Cross-Collateralized Group
unless the Master Servicer or Special Servicer, as applicable, shall have
obtained written confirmation from each Rating Agency that such action
shall not result in a qualification (if applicable), downgrade or
withdrawal of the rating then assigned by such Rating Agency to any Class
of Certificates.
(vii) In the event that the Master Servicer or Special Servicer
intends or is required, in accordance with the preceding clauses, by the
Loan documents or applicable law, to permit the transfer of any Mortgaged
Property, the Master Servicer or the Special Servicer, as the case may be,
may, if consistent with the Servicing Standard, enter into a substitution
of liability agreement, pursuant to which the original Mortgagor and any
original guarantors are released from liability, and the transferee and
any new guarantors are substituted therefor and become liable under the
Mortgage Note and any related guaranties and, in connection therewith, may
require from the related Mortgagor a reasonable and customary fee for the
additional services performed by it, together with reimbursement for any
related costs and expenses incurred by it. In addition, the Master
Servicer or the Special Servicer, as the case may be, if consistent with
the Servicing Standard, shall require as a condition of its approval that
the related Mortgagor pay all costs associated with such transfer. The
Master Servicer or the Special Servicer, as the case may be, shall
promptly notify the Trustee in writing of any such agreement and forward
the original thereof to the Trustee for inclusion in the related Mortgage
File.
(b) In connection with any permitted assumption of any Mortgage Loan
or waiver of a "due-on-sale" or "due-on-encumbrance" clause thereunder, the
Master Servicer (in the case of a Performing Loan) or the Special Servicer (in
the case of a Specially Serviced Loan) shall prepare all documents necessary and
appropriate for such purposes and shall coordinate with the related Mortgagor
for the due execution and delivery of such documents.
(c) If the Master Servicer or the Special Servicer collects an
assumption fee or an assumption application fee in connection with any transfer
or proposed transfer of any interest in a Mortgagor or a Mortgaged Property,
then the Master Servicer or the Special Servicer, as applicable, will apply that
fee to cover the costs and expenses associated with that transfer or proposed
transfer that are not otherwise paid by the related Mortgagor and that would
otherwise be payable or reimbursable out of the Trust Fund, including any Rating
Agency fees and expenses. Any remaining portion of such assumption fee (such
remaining portion, a "Net Assumption Fee") or of such assumption application fee
(such remaining portion, a "Net Assumption Application Fee") will be applied as
additional compensation to the Master Servicer or the Special Servicer in
accordance with Section 3.11.
(d) Notwithstanding anything to the contrary in this Section 3.08,
if the proposed waiver of any "due on sale" or "due on encumbrance" clause
pertains to a CBA A/B Mortgage Loan and constitutes one of the actions with
respect to which the related CBA B Noteholder is entitled to consent pursuant to
Section 16 of the related CBA Intercreditor Agreement, then, so long as such CBA
B Noteholder's right to consent to such a waiver has not expired in accordance
with the terms of the related CBA Intercreditor Agreement such CBA B Noteholder
shall have the approval rights with respect to such proposed waiver of any "due
on sale" or "due on encumbrance" clause as set forth therein.
SECTION 3.09 Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to Sections 3.09(b),
3.09(c), and 3.09(d), exercise reasonable efforts, consistent with the Servicing
Standard, to foreclose upon or otherwise comparably convert the ownership of
properties and other collateral securing such of the Loans as come into and
continue in default and as to which no satisfactory arrangements can be made for
collection of delinquent payments, including pursuant to Section 3.20. In
connection with the foregoing, in the event of a default under any Loan or
Cross-Collateralized Group that is secured by real properties located in
multiple states, and such states include California or another state with a
statute, rule or regulation comparable to California's "one action rule", then
the Special Servicer shall consult Independent counsel regarding the order and
manner in which the Special Servicer should foreclose upon or comparably proceed
against such properties. The reasonable costs of such consultation shall be paid
by, and reimbursable to, the Master Servicer as a Servicing Advance. In
addition, all other costs and expenses incurred in any foreclosure sale or
similar proceeding shall be paid by, and reimbursable to, the Special Servicer
as a Servicing Advance. Nothing contained in this Section 3.09 shall be
construed so as to require the Special Servicer, on behalf of the Trust, to make
a bid on any Mortgaged Property at a foreclosure sale or similar proceeding that
is in excess of the fair market value of such property, as determined by such
Special Servicer taking into account the factors described in Section 3.18 and
the results of any Appraisal obtained pursuant to the following sentence or
otherwise, all such cash bids to be made in a manner consistent with the
Servicing Standard. If and when the Special Servicer deems it necessary in
accordance with the Servicing Standard for purposes of establishing the fair
market value of any Mortgaged Property securing a defaulted Loan, whether for
purposes of bidding at foreclosure or otherwise, the Special Servicer is
authorized to have an Appraisal completed with respect to such property (the
cost of which appraisal shall be covered by, and be reimbursable as, a Servicing
Advance).
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Trust (and in the case of a Mortgaged Property securing a Loan Pair, on behalf
of the related Companion Loan Noteholders) under such circumstances, in such
manner or pursuant to such terms as would (i) cause such Mortgaged Property to
fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code (unless the portion of such REO Property that is not
treated as "foreclosure property" and that is held by the Component Mortgage
Loan REMIC, REMIC I or any REMIC that holds a Companion Loan at any given time
constitutes not more than a de minimis amount of the assets of the Component
Mortgage Loan REMIC, REMIC I or any REMIC that holds a Companion Loan, as the
case may be, within the meaning of Treasury Regulations Sections
1.860D-1(b)(3)(i) and (ii)), or (ii) except as permitted by Section 3.17(a),
subject the Trust to (and in the case of a Mortgaged Property securing a Loan
Pair, on behalf of the related Companion Loan Noteholders), the imposition of
any federal income or prohibited transaction taxes under the Code. Subject to
the foregoing, however, a Mortgaged Property may be acquired through a single
member limited liability company. In addition, except as permitted under Section
3.17, the Special Servicer shall not acquire any personal property on behalf of
the Trust pursuant to this Section 3.09 (with the exception of cash or cash
equivalents pledged as collateral for a Mortgage Loan) unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be covered by, and reimbursable as, a Servicing
Advance) to the effect that the holding of such personal property as part
of the Trust Fund will not cause any of the Component Mortgage Loan REMIC,
REMIC I, REMIC II or any REMIC that holds a Companion Loan to fail to
qualify as a REMIC at any time that any Certificate is outstanding or,
subject to Section 3.17, cause the imposition of a tax on the Trust under
the REMIC Provisions.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trust (and in the case of a Mortgaged Property securing a Loan Pair, on behalf
of the related Companion Loan Noteholders), obtain title to a Mortgaged Property
by foreclosure, deed in lieu of foreclosure or otherwise, or take any other
action with respect to any Mortgaged Property, if, as a result of any such
action, the Trustee, on behalf of the Certificateholders (and in the case of a
Mortgaged Property securing a Loan Pair, on behalf of the related Companion Loan
Noteholders), could, in the reasonable, good faith judgment of the Special
Servicer, exercised in accordance with the Servicing Standard, be considered to
hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law, unless:
(i) the Special Servicer has previously determined in accordance
with the Servicing Standard, based on a Phase I Environmental Assessment
(and any additional environmental testing that the Special Servicer deems
necessary and prudent) of such Mortgaged Property conducted by an
Independent Person who regularly conducts Phase I Environmental
Assessments and performed during the 12-month period preceding any such
acquisition of title or other action, that the Mortgaged Property is in
compliance with applicable environmental laws and regulations and there
are no circumstances or conditions present at the Mortgaged Property
relating to the use, management or disposal of Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or
remediation could be required under any applicable environmental laws and
regulations; or
(ii) in the event that the determination described in clause (c)(i)
above cannot be made, the Special Servicer has previously determined in
accordance with the Servicing Standard, on the same basis as described in
clause (c)(i) above, that it would maximize the recovery to the
Certificateholders and, if a Loan Pair is involved, the related Companion
Loan Noteholders (as a collective whole) on a net present value basis (the
relevant discounting of anticipated collections that will be distributable
to Certificateholders to be performed at the related Net Mortgage Rate) to
acquire title to or possession of the Mortgaged Property and to take such
remedial, corrective and/or other further actions as are necessary to
bring the Mortgaged Property into compliance with applicable environmental
laws and regulations and to appropriately address any of the circumstances
and conditions referred to in clause (c)(i) above.
Any such determination by the Special Servicer contemplated by
clause (i) or clause (ii) of the preceding paragraph shall be evidenced by an
Officer's Certificate to such effect delivered to the Trustee, the Master
Servicer, the Directing Certificateholder, the ES Controlling Holder (if the ES
Component Mortgage Loan is involved), the SB Controlling Holder (if the SB
Component Mortgage Loan is involved), the related CBA B Note Holder (if the
related CBA A/B Mortgage Loan is involved) or the Wellbridge Controlling Holder
and Wellbridge Companion Loan Noteholders (if the Wellbridge A/B Mortgage Loan
is involved), specifying all of the bases for such determination, such Officer's
Certificate to be accompanied by all related environmental reports. The cost of
such Phase I Environmental Assessment and any such additional environmental
testing shall be advanced by the Master Servicer at the direction of the Special
Servicer given in accordance with the Servicing Standard; provided, however,
that the Master Servicer shall not be obligated in connection therewith to
advance any funds which, if so advanced, would constitute a Nonrecoverable
Servicing Advance. Amounts so advanced shall be subject to reimbursement as
Servicing Advances in accordance with Section 3.05(a). The cost of any remedial,
corrective or other further action contemplated by clause (ii) of the preceding
paragraph shall be payable out of the Certificate Account or if a Loan Pair is
involved out of the related Loan Pair Custodial Account pursuant to Section
3.05.
(d) If neither of the conditions set forth in clauses (i) and (ii)
of the first paragraph of Section 3.09(c) has been satisfied with respect to any
Mortgaged Property securing a defaulted Mortgage Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trust and, if a Loan Pair is involved, the
related Companion Loan Noteholders (as a collective whole), release all or a
portion of such Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall report to the Trustee, the Master
Servicer, the Directing Certificateholder, the ES Controlling Holder (if the ES
Component Mortgage Loan is involved), the SB Controlling Holder (if the SB
Component Mortgage Loan is involved), the related CBA B Note Holder (if the
related CBA A/B Mortgage Loan is involved) or the Wellbridge Controlling Holder
and Wellbridge Companion Loan Noteholders (if the Wellbridge A/B Mortgage Loan
is involved) monthly in writing as to any actions taken by the Special Servicer
with respect to any Mortgaged Property as to which neither of the conditions set
forth in clauses (i) and (ii) of the first paragraph of Section 3.09(c) has been
satisfied, in each case until the earliest to occur of satisfaction of either of
such conditions, release of the lien of the related Mortgage on such Mortgaged
Property and the related Loan's becoming a Corrected Loan.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the subject Loan permit such an action and shall, in accordance
with the Servicing Standard, seek such deficiency judgment if it deems
advisable.
(g) Annually in each January, the Master Servicer (with information
provided by the Special Servicer) shall file with the IRS, on a timely basis,
the information returns with respect to the reports of foreclosures and
abandonments and reports relating to any cancellation of indebtedness income
with respect to any Specially Serviced Loans and REO Properties required by
Sections 6050H (as applicable), 6050J and 6050P of the Code. Contemporaneously,
the Master Servicer shall deliver to the Trustee an Officer's Certificate
stating that all such information returns relating to Specially Serviced Loans
and REO Properties that were required to be filed during the prior twelve (12)
months have been properly completed and timely provided to the IRS. The Master
Servicer shall prepare and file the information returns with respect to the
receipt of any mortgage interest received in a trade or business from
individuals with respect to any Loan as required by Section 6050H of the Code.
All information returns shall be in form and substance sufficient to meet the
reporting requirements imposed by the relevant sections of the Code.
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Loan or REO Property, it shall promptly notify
the Trustee, the Master Servicer, and the Directing Certificateholder, the ES
Controlling Holder (if the ES Component Mortgage Loan is involved), the SB
Controlling Holder (if the SB Component Mortgage Loan is involved), the related
CBA B Note Holder (if the related CBA A/B Mortgage Loan is involved) or the
Wellbridge Controlling Holder and Wellbridge Companion Loan Noteholders (if the
Wellbridge A/B Mortgage Loan is involved). The Special Servicer shall maintain
accurate records, prepared by a Servicing Officer, of each such Final Recovery
Determination (if any) and the basis thereof. Each such Final Recovery
Determination (if any) shall be evidenced by an Officer's Certificate delivered
to the Trustee and the Master Servicer no later than the third Business Day
following such Final Recovery Determination.
SECTION 3.10 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Loan, or the receipt by the
Master Servicer of a notification that payment in full shall be escrowed in a
manner customary for such purposes, the Master Servicer shall immediately notify
the Trustee, the ES Controlling Holder (if the ES Component Mortgage Loan is
involved), the SB Controlling Holder (if the SB Component Mortgage Loan is
involved), the related CBA B Note Holder (if the related CBA A/B Mortgage Loan
is involved) or the Wellbridge Controlling Holder and Wellbridge Companion Loan
Noteholders (if the Wellbridge A/B Mortgage Loan is involved) and request
delivery of the related Mortgage File by delivering thereto a Request for
Release in the form of Exhibit D which shall be accompanied by the form of any
release or discharge to be executed by the Trustee. Any such Request for Release
shall include a statement to the effect that all amounts received or to be
received in connection with such payment which are required to be deposited in
the Certificate Account pursuant to Section 3.04(a) have been or will be so
deposited. Upon receipt of such notice and request conforming in all material
respects to the provisions hereof, the Trustee shall promptly release, or cause
any related Custodian to release, the related Mortgage File to the Master
Servicer or Special Servicer, as applicable. No expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the Certificate Account or if a Loan Pair is involved the related Loan Pair
Custodial Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Loan, the Master Servicer or the Special Servicer shall
otherwise require any Mortgage File (or any portion thereof), then, upon request
of the Master Servicer or the Special Servicer and receipt therefrom of a
Request for Release in the form of Exhibit D attached hereto signed by a
Servicing Officer thereof, the Trustee shall release, or cause any related
Custodian to release, such Mortgage File (or portion thereof) to the Master
Servicer or the Special Servicer, as the case may be. Upon return of such
Mortgage File (or portion thereof) to the Trustee or the related Custodian, or
the delivery to the Trustee of a certificate of a Servicing Officer of the
Special Servicer stating that such 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) or, if a Loan Pair is involved into the related Loan Pair Custodial
Account pursuant to Section 3.04(e) have been or will be so deposited, or that
such Mortgage Loan has become an REO Property, the Request for Release shall be
released by the Trustee to the Master Servicer or the Special Servicer, as
applicable.
(c) Within five Business Days of the Special Servicer's request
therefor (or, if the Special Servicer notifies the Trustee of an exigency,
within such shorter period as is reasonable under the circumstances), the
Trustee shall execute and deliver to the Special Servicer, in the form supplied
to the Trustee, as applicable, by the Special Servicer, any court pleadings,
requests for trustee's sale or other documents reasonably 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 or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or
rights provided by the Mortgage Note or Mortgage or otherwise available at law
or in equity or to defend any legal action or counterclaim filed against the
Trust or if a Loan Pair is involved against the related Companion Loan
Noteholders, the Master Servicer or the Special Servicer; provided that the
Trustee may alternatively execute and deliver to the Special Servicer, in the
form supplied to the Trustee by the Special Servicer, a limited power of
attorney, subject to the provisions of Section 3.01(c), issued in favor of the
Special Servicer and empowering the Special Servicer to execute and deliver any
or all of such pleadings or documents on behalf of the Trustee (however, the
Trustee shall not be liable for any misuse of such power of attorney by such
Special Servicer). Together with such pleadings or documents (or such power of
attorney empowering the Special Servicer to execute the same on behalf of the
Trustee), the Special Servicer shall deliver to the Trustee an Officer's
Certificate requesting that such pleadings or documents (or such power of
attorney empowering the Special Servicer to execute the same on behalf of the
Trustee) be executed by the Trustee and certifying as to the reason such
pleadings or documents are required and that the execution and delivery thereof
by the Trustee (or by the Special Servicer on behalf of 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.
If a Loan Pair is involved, such documents and pleadings shall also be delivered
by the Special Servicer to the related Companion Loan Noteholder.
SECTION 3.11 Servicing Compensation; Interest on Servicing
Advances; Payment of Certain Expenses; Obligations of
the Trustee Regarding Back-up Servicing Advances.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan (including each Specially Serviced Loan) and each REO Loan.
As to each such Mortgage Loan and REO Loan, for each calendar month (commencing
with April 2003) or any applicable portion thereof, the Master Servicing Fee
shall accrue at the related Master Servicing Fee Rate on the same principal
amount as interest accrues from time to time during such calendar month (or
portion thereof) on such Mortgage Loan or is deemed to accrue from time to time
during such calendar month (or portion thereof) on such REO Loan, as the case
may be, and shall be calculated on the same Interest Accrual Basis as is
applicable for such Mortgage Loan or REO Loan, as the case may be. The Master
Servicing Fee with respect to any Mortgage Loan or REO Loan shall cease to
accrue if a Liquidation Event occurs in respect thereof. Master Servicing Fees
earned with respect to any Loan or REO Loan shall be payable monthly from
payments of interest on such Loan or REO Revenues allocable as interest on such
REO Loan, as the case may be. The Master Servicer shall be entitled to recover
unpaid Master Servicing Fees in respect of any Mortgage Loan or REO Loan out of
the portion of any related Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds allocable as interest on such Loan or REO Loan, as the case
may be.
In the case of the ES Component Mortgage Loan and the SB Component
Mortgage Loan, the Master Servicing Fee with respect to the ES Component
Mortgage Loan Senior Component, the ES Component Mortgage Loan Subordinate
Components, the SB Component Mortgage Loan Senior Component, the SB Component
Mortgage Loan Subordinate Components and additional servicing compensation with
respect to the ES Component Mortgage Loan and the SB Component Mortgage Loan
shall be an expense of the Component Mortgage Loan REMIC.
The right to receive the Master Servicing Fee may not be transferred
in whole or in part except in connection with the transfer of all of the Master
Servicer's responsibilities and obligations under this Agreement and except as
otherwise expressly provided in the following paragraph.
(b) The Master Servicer shall be entitled to receive the following
items as additional servicing compensation, which shall be paid prior to
remittance of such amounts, if any, which are required to be paid to any
Companion Loan Holder under any Co-Lender Agreement (the following items,
collectively, "Additional Master Servicing Compensation"):
(i) any and all Net Default Charges, Net Assumption Application
Fees, Net Modification Application Fees and earnout fees collected with
respect to a Performing Loan;
(ii) 50% of any and all Net Assumption Fees actually paid by a
Mortgagor with respect to a Performing Loan;
(iii) 50% of any and all Net Modification Fees, extension fees,
consent fees and waiver fees actually paid by a Mortgagor with respect to
a Performing Loan;
(iv) any and all charges for beneficiary statements or demands,
amounts collected for checks returned for insufficient funds and other
loan processing fees actually paid by a Mortgagor with respect to a
Performing Loan and, in the case of checks returned for insufficient
funds, with respect to a Specially Serviced Loan;
(v) any and all Prepayment Interest Excess collected on the Mortgage
Loans; and
(vi) interest or other income earned on deposits in the Investment
Accounts maintained by the Master Servicer, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to any such Investment Account for each Collection Period
and, further, in the case of a Servicing Account or Reserve Account, only
to the extent such interest or other income is not required to be paid to
any Mortgagor under applicable law or under the related Mortgage).
Notwithstanding the foregoing with respect to any 50% sharing of
fees referenced in this Section 3.11(b), the Master Servicer shall be entitled
to all such fees if with respect to the activity related to any such fee the
Master Servicer is not required to seek the consent and/or approval of the
Special Servicer pursuant to this Agreement.
To the extent that any of the amounts described in the preceding
paragraph are collected by the Special Servicer, the Special Servicer shall
promptly pay such amounts to the Master Servicer.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive monthly the Special Servicing Fee with
respect to each Specially Serviced Loan and each REO Loan for which it is
responsible. As to each Specially Serviced Loan and REO Loan, for any particular
calendar month or applicable portion thereof, the Special Servicing Fee shall
accrue at the Special Servicing Fee Rate on the same principal amount as
interest accrues from time to time during such calendar month (or portion
thereof) on such Specially Serviced Loan or is deemed to accrue from time to
time during such calendar month (or portion thereof) on such REO Loan, as the
case may be, and shall be calculated on the same Interest Accrual Basis as is
applicable for such Specially Serviced Loan or REO Loan, as the case may be. The
Special Servicing Fee with respect to any Specially Serviced Loan or REO Loan
shall cease to accrue as of the date a Liquidation Event occurs in respect
thereof or, in the case of a Specially Serviced Loan, as of the date it becomes
a Corrected Loan. Earned but unpaid Special Servicing Fees with respect to
Specially Serviced Loans and REO Loans shall be payable monthly out of general
collections on the Loans and any REO Properties on deposit in the Certificate
Account pursuant to Section 3.05(a); provided, however, if a Loan Pair is
involved, first out of funds on deposit in the related Loan Pair Custodial
Account pursuant to Section 3.05(f).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Loan. As to each Corrected Loan, the Workout Fee shall be payable out
of, and shall be calculated by application of the Workout Fee Rate to, each
payment of interest (other than Default Interest) and principal received from
the related Mortgagor on such Loan for so long as it remains a Corrected Loan.
The Workout Fee with respect to any Corrected Loan will cease to be payable if a
new Servicing Transfer Event occurs with respect thereto or if the related
Mortgaged Property becomes an REO Property; provided that a new Workout Fee
would become payable if and when the subject Loan again became a Corrected Loan.
If the Special Servicer is terminated, including pursuant to Section 3.23, or
resigns in accordance with Section 6.04, it shall retain the right to receive
any and all Workout Fees payable in respect of (i) any Loans serviced by it that
became Corrected Loans during the period that it acted as Special Servicer and
that were still Corrected Loans at the time of such termination or resignation
and (ii) any Specially Serviced Loans for which such Special Servicer has
resolved the circumstances and/or conditions causing any such Loan to be a
Specially Serviced Loan, but which had not as of the time the Special Servicer
was terminated become a Corrected Loan solely because the related Mortgagor had
not made three consecutive timely Monthly Payments and which subsequently
becomes a Corrected Loan as a result of the related Mortgagor making such three
consecutive timely monthly payments (and the successor to the Special Servicer
shall not be entitled to any portion of such Workout Fees), in each case until
the Workout Fee for any such loan ceases to be payable in accordance with the
preceding sentence; provided that, in the case of any Specially Serviced Loan
described in clause (ii) of this sentence, the terminated Special Servicer shall
immediately deliver the related Servicing File to the Master Servicer, and the
Master Servicer shall (without further compensation) monitor that all conditions
precedent to such Loan's becoming a Corrected Loan are satisfied and, further,
shall immediately transfer such Servicing File to the new Special Servicer if
and when it becomes apparent to the Master Servicer that such conditions
precedent will not be satisfied.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Loan or REO Loan as to which it receives any full,
partial or discounted payoff from the related Mortgagor or any Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds. Notwithstanding the
foregoing and for the avoidance of doubt, no Liquidation Fee shall be payable in
connection with (a) the purchase of a Defaulted Mortgage Loan by the Majority
Certificateholder of the Controlling Class, any CBA B Noteholder (if the related
Defaulted Mortgage Loan is a CBA Mortgage Loan), the ES Controlling Holder (if
the related Defaulted Mortgage Loan is the ES Component Mortgage Loan), the SB
Controlling Holder (if the related Defaulted Mortgage Loan is the SB Component
Mortgage Loan) or the Wellbridge Note B Holder and/or the Wellbridge Mezzanine
Lender (if the related Defaulted Mortgage Loan is a Wellbridge Trust Mortgage
Loan) pursuant to any applicable purchase right set forth in Section 3.18(c),
(l) or (m) of this Agreement or with respect to a purchase of a related
Defaulted Mortgage Loan at its fair value as determined in Section 3.18, if any
such purchase occurs or purchase right is exercised not later than ninety (90)
days from the date that the Special Servicer has initially determined the fair
value of the related Loan, (b) the purchase option of the Majority
Certificateholder of the Controlling Class, the Master Servicer or the Special
Servicer pursuant to Section 9.01 of this Agreement or (c) the repurchase or
replacement of a Mortgage Loan by the Mortgage Loan Seller pursuant to the
Mortgage Loan Purchase and Sale Agreement if such repurchase occurs not later
than 270 days after the Mortgage Loan Seller has been notified of its obligation
to so repurchase. As to each such Specially Serviced Loan or REO Loan, the
Liquidation Fee shall be payable out of, and shall be calculated by application
of the Liquidation Fee Rate to, any such full, partial or discounted payoff,
Condemnation Proceeds and/or Liquidation Proceeds received or collected in
respect thereof (other than any portion of such payment or proceeds that
represents Default Charges or a Prepayment Premium). The Liquidation Fee with
respect to any such Specially Serviced Loan will not be payable if such Loan
becomes a Corrected Loan.
In the case of the ES Component Mortgage Loan and the SB Component
Mortgage Loan, as applicable, a Liquidation Fee and/or Workout Fee with respect
to the ES Component Mortgage Loan Senior Component, the SB Component Mortgage
Loan Senior Component, the ES Component Mortgage Loan Subordinate Components and
the SB Component Mortgage Loan Subordinate Components shall be an expense of the
Component Mortgage Loan REMIC.
The Special Servicer's right to receive any Special Servicing Fee,
Workout Fee and/or Liquidation Fee to which it is entitled may not be
transferred in whole or in part except in connection with the transfer of all of
the Special Servicer's responsibilities and obligations under this Agreement and
except as otherwise expressly provided herein.
(d) The Special Servicer shall be entitled to receive the following
items as additional special servicing compensation, which shall be paid prior to
remittance of such amounts, if any, which are required to be paid to any
Companion Loan Holder under any Co-Lender Agreement (the following items,
collectively, the "Additional Special Servicing Compensation"):
(i) any and all Net Default Charges collected with respect to a
Specially Serviced Loan or an REO Loan;
(ii) any and all Net Assumption Fees, Net Assumption Application
Fees, Net Modification Fees, Net Modification Application Fees, extension
fees, consent fees, waiver fees, earnout fees, late payment charges and
charges for beneficiary statements or demands that are actually received
on or with respect to a Specially Serviced Loan or REO Loan;
(iii) 50% of any and all Net Assumption Fees, modification fees,
extension fees, consent fees and waiver fees that are actually received on
or with respect to a Performing Loan; and
(iv) interest or other income earned on deposits in the Special
Servicer's applicable REO Account in accordance with Section 3.06(b) (but
only to the extent of the Net Investment Earnings, if any, with respect to
such REO Account for each Collection Period).
Notwithstanding the foregoing with respect to the fees referenced in
the immediately preceding clause (iii), the Special Servicer shall not be
entitled to such fees unless the Master Servicer was required to seek the
approval or consent of the Special Servicer pursuant to this Agreement with
respect to any consent, extension, modification or waiver related to any such
fee.
To the extent that any of the amounts described in the preceding
paragraph are collected by the Master Servicer with respect to a Specially
Serviced Loan, the Master Servicer shall promptly pay such amounts to the
Special Servicer and shall not be required to deposit such amounts in the
Certificate Account or if a Loan Pair is involved in the related Loan Pair
Custodial Account.
In the case of the ES Component Mortgage Loan and the SB Component
Mortgage Loan, as applicable, amounts described in Sections 3.11(d)(i)-(iv) with
respect to a ES Component Mortgage Loan Senior Component and the SB Component
Mortgage Loan Senior Component, as applicable, shall be an expense of the
Component Mortgage Loan REMIC.
(e) The Master Servicer and the Special Servicer shall each be
required (subject to Section 3.11(h) below) to pay out of its own funds all
expenses incurred by it in connection with its servicing activities hereunder
(including payment of any amounts due and owing to any Sub-Servicers retained by
it (including any termination fees) and the premiums for any blanket policy or
the standby fee or similar premium, if any, for any master force placed policy
obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if
and to the extent such expenses are not payable directly out of the Certificate
Account, the related Loan Pair Custodial Account, the Reserve Accounts or an REO
Account, and neither the Master Servicer nor the Special Servicer shall be
entitled to reimbursement for any such expense incurred by it except as
expressly provided in this Agreement. If the Master Servicer is required to make
any Servicing Advance hereunder at the direction of the Special Servicer in
accordance with Section 3.03(c), Section 3.19 or otherwise, the Special Servicer
shall promptly provide the Master Servicer with such documentation regarding the
subject Servicing Advance as the Master Servicer may reasonably request.
(f) If the Master Servicer or the Special Servicer is required under
this Agreement to make a Servicing Advance, but neither does so within ten (10)
days after such Advance is required to be made, the Trustee shall, if it has
actual knowledge of such failure on the part of the Master Servicer or Special
Servicer, as the case may be, give notice of such failure to the defaulting
party. If such Advance is not made by the Master Servicer or the Special
Servicer within three (3) Business Days after such notice, then (subject to
Section 3.11(h) below) the Trustee shall make such Advance. To the extent the
Trustee fails to make such Servicing Advance, the Fiscal Agent will make such
Advance. The making of such Advance by the Fiscal Agent will cure the Trustee's
failure to make such Servicing Advance. Any failure by the Master Servicer to
make a Servicing Advance it is required to make hereunder shall constitute an
Event of Default by the Master Servicer, subject to and as provided in Section
7.01(a).
(g) The Master Servicer, the Special Servicer, the Trustee and the
Fiscal Agent shall each be entitled to receive interest at the Reimbursement
Rate in effect from time to time, accrued on the amount of each Servicing
Advance made thereby (with its own funds), for so long as such Servicing Advance
is outstanding. Such interest with respect to any Servicing Advances shall be
payable: (i) first, in accordance with Sections 3.05 and 3.27, out of any
Default Charges subsequently collected on or in respect of the Mortgage Pool or
Companion Loan, if applicable; and (ii) then, after such Servicing Advance is
reimbursed, but only if and to the extent that such Default Charges are
insufficient to cover such Advance Interest, out of general collections on the
Mortgage Loans and REO Properties on deposit in the Certificate Account or if a
Loan Pair or related REO Property is involved on deposit in the related Loan
Pair Custodial Account. The Master Servicer shall reimburse itself, the Special
Servicer, the Trustee or the Fiscal Agent, as appropriate, for any Servicing
Advance made by any such Person as soon as practicable after funds available for
such purpose are deposited in the Certificate Account or if a Loan Pair is
involved are deposited in the related Loan Pair Custodial Account.
(h) Notwithstanding anything to the contrary set forth herein, none
of the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent
shall be required to make any Servicing Advance that it determines in its
reasonable, good faith judgment would constitute a Nonrecoverable Servicing
Advance. The determination by any Person with an obligation hereunder to make
Servicing Advances that it has made a Nonrecoverable Servicing Advance or that
any proposed Servicing Advance, if made, would constitute a Nonrecoverable
Servicing Advance, shall be made by such Person in its reasonable, good faith
judgment and shall be evidenced by an Officer's Certificate delivered promptly
to the Depositor, the Trustee (unless it is the Person making such
determination) and, if applicable, the Fiscal Agent (unless it is the Person
making such determination), which shall provide a copy thereof to the Directing
Certificateholder, the ES Controlling Holder (if the ES Component Mortgage Loan
is involved), the SB Controlling Holder (if the SB Component Mortgage Loan is
involved), the related CBA B Note Holder (if the related CBA A/B Mortgage Loan
is involved) or the Wellbridge Controlling Holder and Wellbridge Companion Loan
Noteholders (if the Wellbridge A/B Mortgage Loan is involved), setting forth the
basis for such determination, accompanied by a copy of an Appraisal of the
related Mortgaged Property or REO Property performed within the 12 months
preceding such determination, and further accompanied by any other information,
including engineers' reports, environmental surveys or similar reports, that
such Person may have obtained and that support such determination.
Notwithstanding the foregoing, the Trustee and the Fiscal Agent shall be
entitled to conclusively rely on any determination of nonrecoverability that may
have been made by the Master Servicer or the Special Servicer with respect to a
particular Servicing Advance, and the Master Servicer and the Special Servicer
shall each be entitled to conclusively rely on any determination of
nonrecoverability that may have been made by the other such party with respect
to a particular Servicing Advance. A copy of any such Officer's Certificate (and
accompanying information) of the Master Servicer shall also be delivered
promptly to the Special Servicer, a copy of any such Officer's Certificate (and
accompanying information) of the Special Servicer shall also be promptly
delivered to the Master Servicer, and a copy of any such Officer's Certificates
(and accompanying information) of the Trustee shall also be promptly delivered
to the Master Servicer and the Special Servicer.
(i) Notwithstanding anything to the contrary set forth herein, the
Master Servicer may (and, at the direction of the Special Servicer if a
Specially Serviced Loan or an REO Property is involved, shall) pay directly out
of the Certificate Account or, if a Loan Pair is involved, the related Loan Pair
Custodial Account in accordance with Section 3.05, any servicing expense that,
if paid by the Master Servicer or the Special Servicer, would constitute a
Nonrecoverable Servicing Advance; provided that the Master Servicer (or the
Special Servicer, if a Specially Serviced Loan or an REO Property is involved)
has determined in accordance with the Servicing Standard that making such
payment is in the best interests of the Certificateholders and if a Loan Pair is
involved, the Companion Loan Noteholders (as a collective whole), as evidenced
by an Officer's Certificate delivered promptly to the Depositor and the Trustee,
which shall provide a copy thereof to the Directing Certificateholder, the ES
Controlling Holder (if the ES Component Mortgage Loan is involved), the SB
Controlling Holder (if the SB Component Mortgage Loan is involved), the related
CBA B Note Holder (if the related CBA A/B Mortgage Loan is involved) or the
Wellbridge Controlling Holder and Wellbridge Companion Loan Noteholders (if the
Wellbridge A/B Mortgage Loan is involved), setting forth the basis for such
determination and accompanied by any information that such Person may have
obtained that supports such determination. A copy of any such Officer's
Certificate (and accompanying information) of the Master Servicer shall also be
delivered promptly to the Special Servicer, and a copy of any such Officer's
Certificate (and accompanying information) of the Special Servicer shall also be
promptly delivered to the Master Servicer.
SECTION 3.12 Inspections; Collection of Financial Statements.
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as practicable (but in any
event not later than 60 days) after the related Loan becomes a Specially
Serviced Loan (and, in cases where the related Loan has become a Specially
Serviced Loan, the Special Servicer shall continue to perform or cause to be
performed a physical inspection of the subject Mortgaged Property at least once
per calendar year thereafter for so long as the related Loan remains a Specially
Serviced Loan or if such Mortgaged Property becomes an REO Property); provided
that the Special Servicer shall be entitled to reimbursement of the reasonable
and direct out-of-pocket expenses incurred by it in connection with each such
inspection as Servicing Advances. Beginning in 2004, the Master Servicer shall
at its expense perform or cause to be performed an inspection of each Mortgaged
Property at least once per calendar year (or, in the case of each Mortgage Loan
with an unpaid principal balance of under $2,000,000, once every two years), if
the Special Servicer has not already done so during that period pursuant to the
preceding sentence. Notwithstanding the two immediately preceding sentences, the
Master Servicer with respect to any Mortgaged Property where the related Loan is
a Performing Loan shall inspect the related Mortgaged Property immediately after
the DSCR with respect to such Mortgaged Property falls below 1.0x, and the
Special Servicer with respect to any Mortgaged Property where the related Loan
is a Specially Serviced Loan and/or any REO Property shall inspect the related
Mortgaged Property or REO Property immediately after the DSCR with respect to
such Mortgaged Property or REO Property falls below 1.0x. The costs of each such
inspection incurred by the Special Servicer or the Master Servicer, as
applicable, shall be reimbursable first from Default Charges and to the extent
such Default Charges are insufficient out of general collections. To the extent
such costs are to reimbursed from general collections, such costs shall
constitute an Additional Trust Fund Expense. The Master Servicer and the Special
Servicer shall each prepare a written report of each such inspection performed
by it or on its behalf that sets forth in detail the condition of the Mortgaged
Property and that specifies the occurrence or existence of: (i) any sale,
transfer or abandonment of the Mortgaged Property of which the Master Servicer
or the Special Servicer, as the case may be, is aware, (ii) any change in the
condition or occupancy of the Mortgaged Property that the Master Servicer or the
Special Servicer, as the case may be, in accordance with the Servicing Standard,
is aware of and considers material, or (iii) any waste committed on the
Mortgaged Property that the Master Servicer or the Special Servicer, as the case
may be, in accordance with the Servicing Standard, is aware of and considers
material. Upon request of the Trustee, the Master Servicer and the Special
Servicer shall each deliver to the Trustee a copy (or image in suitable
electronic media) of each such written report prepared by it, in each case
within 30 days following the request (or, if later, within 30 days following the
later of completion of the related inspection if the inspection is performed by
the Master Servicer or the Special Servicer, as the case may be, or receipt of
the related inspection report if the inspection is performed by a third party).
Upon request, the Trustee shall request from the Master Servicer or the Special
Servicer, as the case may be, and, to the extent such items have been delivered
to the Trustee by the Master Servicer or the Special Servicer, as the case may
be, deliver, upon request, to each of the Depositor, the Mortgage Loan Seller,
the Directing Certificateholder, the ES Controlling Holder (if the ES Component
Mortgage Loan is involved), the SB Controlling Holder (if the SB Component
Mortgage Loan is involved), the related CBA B Note Holder (if the related CBA
A/B Mortgage Loan is involved) or the Wellbridge Controlling Holder and
Wellbridge Companion Loan Noteholders (if the Wellbridge A/B Mortgage Loan is
involved) any Certificateholder or, if the Trustee has in accordance with
Section 5.06(b) confirmed the Ownership Interest in Certificates held thereby,
any Certificate Owner, a copy (or image in suitable electronic media) of each
such written report prepared by the Master Servicer or the Special Servicer.
(b) Commencing with respect to the calendar quarter ended September
2003, the Special Servicer, in the case of any Specially Serviced Loan, and the
Master Servicer, in the case of each Performing Loan, shall make reasonable
efforts to collect promptly (and, in any event, shall attempt to collect within
45 days following the end of the subject quarter or 120 days following the end
of the subject year) from each related Mortgagor quarterly and annual operating
statements, budgets and rent rolls of the related Mortgaged Property, and
quarterly and annual financial statements of such Mortgagor, to the extent
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 copies (or images in suitable electronic media) of all of the foregoing
items so collected or obtained by it to the Master Servicer within 30 days of
its receipt thereof.
Within 60 days after receipt by the Master Servicer from the related
Mortgagors or otherwise, as to Performing Loans, and within 45 days after
receipt by the Special Servicer or otherwise, as to Specially Serviced Loans and
REO Properties, of any annual operating statements or rent rolls with respect to
any Mortgaged Property or REO Property, the Master Servicer (or the Special
Servicer, with respect to any Specially Serviced Loan or REO Property) shall,
based upon such operating statements or rent rolls, prepare (or, if previously
prepared, update) the related CMSA Operating Statement Analysis Report. The
Special Servicer shall remit a copy of each CMSA Operating Statement Analysis
Report prepared or updated by it (within 10 days following the initial
preparation and each update thereof), together with, if so requested, the
underlying operating statements and rent rolls, to the Master Servicer in a
format reasonably acceptable to the Master Servicer and the Trustee. All CMSA
Operating Statement Analysis Reports relating to Performing Loans shall be
maintained by the Master Servicer, and all CMSA Operating Statement Analysis
Reports relating to any Specially Serviced Loan and REO Property shall be
maintained by the Special Servicer. The Trustee shall, upon request, request
from the Master Servicer (if necessary) and, to the extent such items have been
delivered to the Trustee by the Master Servicer, deliver to the Directing
Certificateholder, any Certificateholder or, if the Trustee has in accordance
with Section 5.06 confirmed the Ownership Interest in the Certificates held
thereby, any Certificate Owner, a copy of such CMSA Operating Statement Analysis
(or update thereof) and, if requested, the related operating statement or rent
rolls.
Within 60 days (or, in the case of items received from the Special
Servicer with respect to Specially Serviced Loans and REO Properties, 30 days)
after receipt by the Master Servicer of any quarterly or annual operating
statements with respect to any Mortgaged Property or REO Property, the Master
Servicer (or the Special Servicer, with respect to any Specially Serviced Loan
or REO Property) shall prepare or update and forward to the Trustee (upon
request), the Master Servicer (with respect to CMSA NOI Adjustment Worksheets
prepared by the Special Servicer), the Special Servicer (with respect to CMSA
NOI Adjustment Worksheets prepared by the Master Servicer), the Directing
Certificateholder (if the Directing Certificateholder and the Special Servicer
are not the same entity), the ES Controlling Holder (if the ES Component
Mortgage Loan is involved), the SB Controlling Holder (if the SB Component
Mortgage Loan is involved), the related CBA B Note Holder (if the related CBA
A/B Mortgage Loan is involved) or the Wellbridge Controlling Holder and
Wellbridge Companion Loan Noteholders (if the Wellbridge A/B Mortgage Loan is
involved), a CMSA NOI Adjustment Worksheet for such Mortgaged Property or REO
Property, together with, if so requested, the related operating statements (in
an electronic format reasonably acceptable to the Trustee and the Special
Servicer).
If, with respect to any Loan (other than a Specially Serviced Loan),
the Special Servicer has any questions for the related Mortgagor based upon the
information received by the Special Servicer pursuant to Section 3.12(a) or
3.12(b), the Master Servicer shall, in this regard and without otherwise
changing or modifying its duties hereunder, reasonably cooperate with the
Special Servicer in assisting the Special Servicer to contact and solicit
information from such Mortgagor.
(c) Not later than 2:00 p.m. (New York City time) on the first
Business Day following each Determination Date, the Special Servicer shall
prepare and deliver or cause to be delivered to the Master Servicer, the
Directing Certificateholder, the ES Controlling Holder (if the ES Component
Mortgage Loan is involved), the SB Controlling Holder (if the SB Component
Mortgage Loan is involved), the related CBA B Note Holder (if the related CBA
A/B Mortgage Loan is involved) or the Wellbridge Controlling Holder and
Wellbridge Companion Loan Noteholders (if the Wellbridge A/B Mortgage Loan is
involved), the following reports (or data files relating to reports of the
Master Servicer) with respect to the Specially Serviced Loans and any REO
Properties for which it is responsible, providing the required information as of
such Determination Date: (i) a CMSA Property File; and (ii) a CMSA Special
Servicer Loan File (which, in each case, if applicable, will identify each Loan
by loan number and property name). In addition, the Special Servicer shall from
time to time provide the Master Servicer with such information in the Special
Servicer's possession regarding the Specially Serviced Loans and REO Properties
as may be requested by the Master Servicer and is reasonably necessary for the
Master Servicer to prepare each report and any supplemental information required
to be provided by the Master Servicer to the Trustee.
(d) Not later than 7:00 p.m. (New York City time) on the second
Business Day following each Determination Date, the Master Servicer shall
prepare (if and to the extent necessary) and deliver or cause to be delivered to
the Trustee, the Special Servicer, the Directing Certificateholder (if the
Directing Certificateholder is not the same entity as the Special Servicer), the
ES Controlling Holder (if the ES Component Mortgage Loan is involved), the SB
Controlling Holder (if the SB Component Mortgage Loan is involved), the related
CBA B Note Holder (if the related CBA A/B Mortgage Loan is involved) or the
Wellbridge Controlling Holder and Wellbridge Companion Loan Noteholders (if the
Wellbridge A/B Mortgage Loan is involved), in a computer-readable medium
downloadable by the Trustee, the Special Servicer, the Directing
Certificateholder, the ES Controlling Holder (if the ES Component Mortgage Loan
is involved), the SB Controlling Holder (if the SB Component Mortgage Loan is
involved), the related CBA B Note Holder (if the related CBA A/B Mortgage Loan
is involved) or the Wellbridge Controlling Holder and Wellbridge Companion Loan
Noteholders (if the Wellbridge A/B Mortgage Loan is involved) (or, in the case
of the Trustee, at the Trustee's written request, in a form reasonably
acceptable to the recipient, including on a loan-by-loan basis), each of the
files and reports listed in the definition of "CMSA Investor Reporting Package",
providing the most recent information with respect to the Mortgage Pool as of
the related Determination Date (and which, in each case, if applicable, will
identify each subject Mortgage Loan by loan number and property name).
The Master Servicer may, but is not required to, make any of the
reports or files comprising the CMSA Investor Reporting Package (other than the
CMSA Bond Level File and the CMSA Collateral Summary File, which are prepared by
the Trustee) available each month on the Master Servicer's website; provided,
that the Master Servicer shall e-mail such reports or files to the Directing
Certificateholder, the ES Controlling Holder (if the ES Component Mortgage Loan
is involved), the SB Controlling Holder (if the SB Component Mortgage Loan is
involved), the related CBA B Note Holder (if the related CBA A/B Mortgage Loan
is involved) or the Wellbridge Controlling Holder and Wellbridge Companion Loan
Noteholders (if the Wellbridge A/B Mortgage Loan is involved), until the Master
Servicer's website is established. In connection with providing access to the
Master Servicer's website, the Master Servicer may require registration and the
acceptance of a disclaimer and otherwise (subject to the preceding sentence)
adopt reasonable rules and procedures, which may include, to the extent the
Master Servicer deems necessary or appropriate, conditioning access on execution
of an agreement governing the availability, use and disclosure of such
information, and which may provide indemnification to the Master Servicer for
any liability or damage that may arise therefrom.
(e) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.12(b) and Section 3.12(c), and the Master
Servicer shall deliver to the Trustee and the Special Servicer the reports set
forth in Section 3.12(d), in an electronic format reasonably acceptable to the
Special Servicer, the Master Servicer and the Trustee. The Master Servicer may,
absent manifest error, conclusively rely on the reports to be provided by the
Special Servicer pursuant to Section 3.12(b) and Section 3.12(c). The Trustee
may, absent manifest error, conclusively rely on the reports to be provided by
the Master Servicer pursuant to Section 3.12(d). In the case of information or
reports to be furnished by the Master Servicer to the Trustee pursuant to
Section 3.12(d), 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(b) or Section 3.12(c) and to the extent that such reports are to
be prepared and delivered by the Special Servicer pursuant to Section 3.12(b) or
Section 3.12(c), the Master Servicer shall have no obligation to provide such
information or reports to the Trustee until it has received the requisite
information or reports from the Special Servicer, and the Master Servicer shall
not be in default hereunder due to a delay in providing the reports required by
Section 3.12(d) caused by the Special Servicer's failure to timely provide any
information or report required under Section 3.12(b) or Section 3.12(c) of this
Agreement.
(f) Notwithstanding the foregoing, however, the failure of the
Master Servicer or the 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 Master Servicer or the Special Servicer so
fails because such disclosure, in the reasonable belief of the Master 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 or would constitute a
waiver of the attorney-client privilege on behalf of the Trust. The Master
Servicer and the Special Servicer may disclose any such information or any
additional information to any Person so long as such disclosure is consistent
with applicable law, the related Loan documents and the Servicing Standard. The
Master 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).
(g) The Depositor shall provide to the Master Servicer and the
Trustee the initial data (as of the respective Due Dates for the Loans in April
2003 or the most recent earlier date for which such data is available)
contemplated by the CMSA Loan Setup File, the CMSA Loan Periodic Update File,
the CMSA Operating Statement Analysis Report and the CMSA Property File.
(h) If the Master Servicer or the Special Servicer is required to
deliver any statement, report or information under any provision of this
Agreement, the Master Servicer or the Special Servicer, as the case may be, may
satisfy such obligation by (x) physically delivering a paper copy of such
statement, report or information, (y) delivering such statement, report or
information in a commonly used electronic format or (z) making such statement,
report or information available on the Master Servicer's internet website or the
Trustee's Website, unless this Agreement expressly specifies a particular method
of delivery. Notwithstanding the foregoing, the Trustee may request delivery in
paper format of any statement, report or information required to be delivered to
the Trustee and clause (z) shall not apply to the delivery of any information
required to be delivered to the Trustee unless the Trustee consents to such
delivery.
SECTION 3.13 Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver
to the Trustee, the Depositor, the Underwriters, the Rating Agencies, the
Directing Certificateholder, the ES Controlling Holder (if the ES Component
Mortgage Loan is involved), the SB Controlling Holder (if the SB Component
Mortgage Loan is involved), the related CBA B Note Holder (if the related CBA
A/B Mortgage Loan is involved) or the Wellbridge Controlling Holder and
Wellbridge Companion Loan Noteholders (if the Wellbridge A/B Mortgage Loan is
involved), and each other on or before April 30 of each year, beginning in 2004,
an Officer's Certificate (the "Annual Performance Certification") stating, as to
the signer thereof, that (i) a review of the activities of the Master Servicer
or the Special Servicer, as the case may be, during the preceding calendar year
and of its performance under this Agreement has been made under such officer's
supervision, (ii) to the best of such officer's knowledge, based on such review,
the Master Servicer or the Special Servicer, as the case may be, has fulfilled
all of its obligations under this Agreement in all material respects throughout
such year (or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof), and (iii) the Master Servicer or the Special Servicer, as
the case may be, has received no notice regarding the qualification, or
challenging the status, of any of the Component Mortgage Loan REMIC, REMIC I or
REMIC II as a REMIC from the IRS or any other governmental agency or body (or,
if it has received any such notice, specifying the details thereof); provided
that the Master Servicer and the Special Servicer shall each be required to
deliver its Annual Performance Certification by March 15 in 2004 and any year
that a report on Form 10-K is required to be filed with respect to the
Certificates with the Commission in respect of the preceding calendar year.
The Master Servicer and the Special Servicer, to the extent
applicable, will reasonably cooperate with the Depositor in conforming any
Officer's Certificate delivered pursuant to this Section 3.13 to requirements
imposed by the Commission on the Depositor in connection with the Commission's
issuance of a no-action letter relating to the Depositor's reporting
requirements in respect of the Trust pursuant to the Exchange Act.
SECTION 3.14 Reports by Independent Public Accountants.
On or before April 30 of each year, beginning in 2004, each of the
Master Servicer and the Special Servicer at its expense shall cause a firm of
independent public accountants that is a member of the American Institute of
Certified Public Accountants to furnish a statement (the "Annual Accountants'
Report") to the Trustee, the Depositor, the Underwriters, the Rating Agencies,
the Directing Certificateholder, the ES Controlling Holder (if the ES Component
Mortgage Loan is involved), the SB Controlling Holder (if the SB Component
Mortgage Loan is involved), the related CBA B Note Holder (if the related CBA
A/B Mortgage Loan is involved) or the Wellbridge Controlling Holder and
Wellbridge Companion Loan Noteholders (if the Wellbridge A/B Mortgage Loan is
involved), and each other stating that: (i) such firm has obtained a letter of
representation from an officer of the Master Servicer or the Special Servicer,
as the case may be, which includes an assertion that the Master Servicer or the
Special Servicer, as the case may be, has complied with the minimum loan
servicing standards (to the extent applicable to commercial and multifamily
mortgage loans) identified in USAP, with respect to the Master Servicer's or the
Special Servicer's, as applicable, 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 USAP, the
representation is fairly stated in all material respects, subject only to
exceptions and other qualifications that, in the opinion of such firm, USAP
requires it to report; provided that the Master Servicer and the Special
Servicer shall each be required to cause the delivery of its Annual Accountants'
Report by March 15 in 2004 and any year that a report on Form 10-K is required
to be filed with respect to the Certificates with the Commission in respect of
the preceding calendar year. In rendering its report such firm may rely, as to
matters relating to the direct servicing of securitized commercial and
multifamily mortgage loans by sub-servicers, upon comparable reports of firms of
independent certified public accountants rendered on the basis of examinations
conducted in accordance with the same standards (rendered within one year of
such report) with respect to those sub-servicers.
The Master Servicer and the Special Servicer will each reasonably
cooperate with the Depositor in providing any other form of accountants' reports
as may be required by the Commission in connection with the Commission's
issuance of a no-action letter relating to the Depositor's reporting
requirements in respect of the Trust pursuant to the Exchange Act, and the
reasonable additional costs of providing such other forms of accountants'
reports shall be borne by the Depositor.
SECTION 3.15 Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, the Fiscal Agent, the Depositor, each Rating Agency, the Directing
Certificateholder, the ES Controlling Holder (if the ES Component Mortgage Loan
is involved), the SB Controlling Holder (if the SB Component Mortgage Loan is
involved), the related CBA B Note Holder (if the related CBA A/B Mortgage Loan
is involved) or the Wellbridge Controlling Holder and Wellbridge Companion Loan
Noteholders (if the Wellbridge A/B Mortgage Loan is involved), and to the OTS,
the FDIC and any other banking or insurance regulatory authority that may
exercise authority over any Certificateholder or Certificate Owner, access to
any records regarding the Mortgage Loans and the servicing thereof within its
control, except to the extent it is prohibited from doing so by applicable law,
the terms of the Mortgage Loan documents or contract entered into prior to the
Closing Date or to the extent such information is subject to a privilege under
applicable law to be asserted on behalf of the Certificateholders. Such access
shall be afforded without charge but only upon reasonable prior written request
and during normal business hours at the offices of the Master Servicer or the
Special Servicer, as the case may be, designated by it; provided, however, that
Certificateholders and Certificate Owners shall be required to pay their own
photocopying costs. The Master Servicer and the Special Servicer shall each be
entitled to 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). In connection with providing access to such records to
the Directing Certificateholder, the ES Controlling Holder (if the ES Component
Mortgage Loan is involved), the SB Controlling Holder (if the SB Component
Mortgage Loan is involved), the related CBA B Note Holder (if the related CBA
A/B Mortgage Loan is involved) or the Wellbridge Controlling Holder and
Wellbridge Companion Loan Noteholders (if the Wellbridge A/B Mortgage Loan is
involved), the Master Servicer and the Special Servicer may each require
registration (to the extent access is provided via the Master Servicer's
internet website) and the acceptance of a reasonable disclaimer and otherwise
adopt reasonable rules and procedures, which may include, to the extent the
Master Servicer or the Special Servicer, as applicable, deems necessary or
reasonably appropriate, conditioning access on the execution and delivery of an
agreement reasonably governing the availability, use and disclosure of such
information. The failure of the Master 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 Master
Servicer and the Special Servicer may each deny any of the foregoing persons
access to confidential information or any intellectual property which the Master
Servicer or the Special Servicer is restricted by license or contract from
disclosing. Neither the Master Servicer nor the Special Servicer shall be liable
for providing or disseminating information in accordance with the terms of this
Agreement.
SECTION 3.16 Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee, on behalf of
the Certificateholders or, subject to Section 3.09(b), to a single member
limited liability company of which the Trust is the sole member, which limited
liability company is formed or caused to be formed by the Special Servicer at
the expense of the Trust for the purpose of taking title to one or more REO
Properties pursuant to this Agreement. The limited liability company shall be
(i) disregarded as an entity separate from the Trust pursuant to Treasury
Regulations Section 301.7701 3(b), and (ii) a manager-managed limited liability
company, with the Special Servicer to serve as the initial manager to manage the
property of the limited liability company, including any applicable REO
Property, in accordance with the terms of this Agreement as if such property was
held directly in the name of the Trust or Trustee under this Agreement. The
Special Servicer, on behalf of the Trust (and in the case of a Loan Pair, on
behalf of the related Companion Loan Noteholders), shall sell any REO Property
by the end of the third calendar year following the year in which the Trust and,
if applicable, acquires the related Companion Loan Noteholders ownership of such
REO Property for purposes of Section 860G(a)(8) of the Code, unless the Special
Servicer either (i) applies, more than 60 days prior to the expiration of such
liquidation period, and is granted an extension of time (an "REO Extension") by
the IRS to sell such REO Property or (ii) obtains for the Trustee an Opinion of
Counsel, addressed to the Trustee, to the effect that the holding by the Trust
of such REO Property subsequent to the end of the third calendar year following
the year in which such acquisition occurred will not result in an Adverse REMIC
Event with respect to any of the Component Mortgage Loan REMIC, REMIC I, REMIC
II or any REMIC that holds a Companion Loan. Regardless of whether the Special
Servicer applies for or is granted the REO Extension contemplated by clause (i)
of the immediately preceding sentence or obtains the Opinion of Counsel referred
to in clause (ii) of such sentence, the Special Servicer shall act in accordance
with the Servicing Standard to liquidate such REO Property on a timely basis. If
the Special Servicer is granted such REO Extension or obtains such Opinion of
Counsel, the Special Servicer shall (i) promptly forward a copy of such REO
Extension or Opinion of Counsel to the Trustee, and (ii) sell such REO Property
within such extended period as is permitted by such REO Extension or
contemplated by such Opinion of Counsel, as the case may be. Any expense
incurred by the Special Servicer in connection with its applying for and being
granted the REO Extension contemplated by clause (i) of the third preceding
sentence or its obtaining the Opinion of Counsel contemplated by clause (ii) of
the third preceding sentence, and for the creation of and the operating of a
limited liability company, shall be covered by, and be reimbursable as, a
Servicing Advance.
(b) The Special Servicer shall segregate and hold all funds
collected and received 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 Pool REO Accounts, to
be held on behalf of the Trustee in trust for the benefit of the
Certificateholders, for the retention of revenues and other proceeds derived
from each REO Property. If such REO Acquisition occurs with respect to any
Mortgaged Property securing a Loan Pair, the Special Servicer shall establish an
REO Account solely with respect to such property (a "Loan Pair REO Account"), to
be held for the benefit of the Certificateholders and the applicable Companion
Loan Noteholders. Each REO Account shall be an Eligible Account and may consist
of one account for all the REO Properties. The Special Servicer shall deposit,
or cause to be deposited, in the related REO Account, within two (2) Business
Days of receipt, all REO Revenues, Liquidation Proceeds (net of all Liquidation
Expenses paid therefrom) and Insurance Proceeds received in respect of an REO
Property. The Special Servicer is authorized to pay out of related Liquidation
Proceeds any Liquidation Expenses incurred in respect of an REO Property and
outstanding at the time such proceeds are received. Funds in an REO Account may
be invested only in Permitted Investments in accordance with Section 3.06. The
Special Servicer shall be entitled to make withdrawals from the REO Account to
pay itself, as Additional Servicing Compensation in accordance with Section
3.11(d), interest and investment income earned in respect of amounts held in an
REO Account as provided in Section 3.06(b) (but only to the extent of the Net
Investment Earnings with respect to the REO Account for any Collection Period).
The Special Servicer shall give notice to the other parties hereto and if a Loan
Pair is involved, the related CBA B Note Holder, the Wellbridge Controlling
Holder, or the Wellbridge Companion Loan Noteholders of the location of an REO
Account when first established and of the new location of an REO Account prior
to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, maintenance and disposition of
any REO Property, but only to the extent of amounts on deposit in the applicable
REO Account relating to such REO Property. By 2:00 p.m., New York City time, on
the Business Day following the end of each Collection Period, the Special
Servicer shall withdraw from the related REO Account and deposit into the
Certificate Account or the applicable Loan Pair Custodial Account, as
applicable, or deliver to the Master Servicer (which shall deposit such amounts
into the Certificate Account or the applicable Loan Pair Custodial Account, as
applicable, the aggregate of all amounts received in respect of each REO
Property during such Collection Period, net of any withdrawals made out of such
amounts pursuant to the preceding sentence; provided that the Special Servicer
may retain in the applicable REO Account such portion of such proceeds and
collections as may be necessary to maintain a reserve of sufficient funds for
the proper operation, management, leasing, maintenance and disposition of any
REO Property (including the creation of a reasonable reserve for repairs,
replacements, necessary capital improvements and other related expenses), such
reserve not to exceed an amount sufficient to cover such items reasonably
expected to be incurred during the following 12-month period. For purposes of
the foregoing, the Pool REO Account and a Loan Pair REO Account correspond to
the Certificate Account and the related Loan Pair Custodial Account,
respectively.
(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, an 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, conserve, protect, operate and lease such REO Property for the
benefit of the Certificateholders (and in the case of a Loan Pair, for the
benefit of the related Companion Loan Noteholders as a collective whole) 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. 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 a Loan Pair, for the benefit of the
related Companion Loan Noteholders) (as determined by the Special Servicer in
its good faith and reasonable judgment). Subject to this Section 3.17, the
Special Servicer may earn "net income from foreclosure property" within the
meaning of Section 860G(c) of the Code if it determines that earning such income
is in the best interests of Certificateholders (and in the case of a Loan Pair,
for the benefit of the related Companion Loan Noteholders) 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 the second 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 applicable REO Account, to the
extent of amounts on deposit therein with respect to such REO Property, funds
necessary for the proper operation, management, leasing, maintenance and
disposition of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain, lease and dispose
of 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)
through (iv) above with respect to such REO Property, the Special Servicer
shall, subject to Section 3.19(d), direct the Master Servicer to make (and the
Master Servicer shall so make) Servicing Advances in such amounts as are
necessary for such purposes unless (as evidenced in the manner contemplated by
Section 3.11(g)) the Master Servicer determines, in its reasonable, good faith
judgment, that such payment would be a Nonrecoverable Servicing Advance.
(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 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 ninety (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 Master 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 ninety
(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) unless a Loan Pair is involved, in which case
such fees shall be netted out of collections on the REO Property prior to
being remitted to the Special Servicer) shall be reasonable and customary
in light of the nature and locality of the REO 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 with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. To the extent the costs of any contract with an
Independent Contractor for the operation and maintenance of any REO Property are
greater than the revenues from such REO Property, such excess costs shall be
covered by and reimbursable as a Servicing Advance.
(d) When and as necessary, the Special Servicer shall send to the
Trustee and the Master 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 Resolution of Defaulted Mortgage Loans and REO
Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may
sell or purchase, or permit the sale or purchase of, a Mortgage Loan or an REO
Property only on the terms and subject to the conditions set forth in this
Section 3.18 or as otherwise expressly provided in or contemplated by Sections
2.03(a), 9.01 or in a Co-Lender Agreement).
(b) After the Master Servicer has pursuant to Section 3.21(a) of
this Agreement notified the Special Servicer of a Servicing Transfer Event and
in connection therewith has provided the Special Servicer with the information
required under Section 3.21(a) with respect to any Defaulted Mortgage Loan, the
Special Servicer shall determine the fair value of such Defaulted Mortgage Loan
in accordance with the Servicing Standard as hereinafter provided; provided,
however, that such determination shall be made without taking into account any
effect the restrictions on the sale of such Mortgage Loan contained herein may
have on the value of such Defaulted Mortgage Loan; provided, further, that the
Special Servicer shall use reasonable efforts promptly to obtain an Appraisal
with respect to the related Mortgaged Property unless it has an Appraisal that
is less than 12 months old and has no actual knowledge of, or notice of, any
event which in the Special Servicer's judgment would materially affect the
validity of such Appraisal. The Special Servicer shall make its fair value
determination as soon as reasonably practicable (but in any event within thirty
(30) days) after its receipt of such new Appraisal, if applicable. The Special
Servicer will, from time to time, but not less often than every ninety (90)
days, adjust its fair value determination based upon changed circumstances, new
information and other relevant factors, if any, in each instance in accordance
with the Servicing Standard. The Special Servicer shall notify the Trustee, the
Master Servicer and the Majority Certificateholder of the Controlling Class, the
ES Controlling Holder (and the ES Controlling Class Certificateholder if such
parties are not the same) if the ES Component Mortgage Loan is involved, the SB
Controlling Holder (and the SB Controlling Class Certificateholder if such
parties are not the same) if the SB Component Mortgage Loan is involved, the
related CBA B Noteholder if a CBA Mortgage Loan is involved, and the Wellbridge
Note B Holder and the Wellbridge Purchase Option Holder (if a Wellbridge Trust
Mortgage Loan is involved) promptly upon its fair value determination and any
adjustment thereto. The Special Servicer shall also deliver to the Master
Servicer and the Majority Certificateholder of the Controlling Class, the ES
Controlling Holder (and the ES Controlling Class Certificateholder if such
parties are not the same) if the ES Component Mortgage Loan is involved, the SB
Controlling Holder (and the SB Controlling Class Certificateholder if such
parties are not the same) if the SB Component Mortgage Loan is involved, the
related CBA B Noteholder if a CBA Mortgage Loan is involved and the Wellbridge
Note B Holder and the Wellbridge Purchase Option Holder (if a Wellbridge Trust
Mortgage Loan is involved) the most recent Appraisal of the related Mortgaged
Property then in the Special Servicer's possession, together with such other
third-party reports and other information then in the Special Servicer's
possession that the Special Servicer reasonably believes to be relevant to the
fair value determination with respect to such Mortgage Loan (such materials are,
collectively, the "Determination Information"). Notwithstanding the foregoing,
the Special Servicer shall not be required to deliver the Determination
Information to the Master Servicer, and shall instead deliver the Determination
Information to the Trustee, if the Master Servicer will not be determining
whether the Option Price represents fair value for the Defaulted Mortgage Loan,
pursuant to Section 3.18(e). The reasonable out-of-pocket costs and expenses
incurred by the Special Servicer in making its fair value determination shall be
paid and reimbursed as a Servicing Advance.
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, the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
Property and the expected recoveries from pursuing a work-out or foreclosure
strategy instead of selling the Defaulted Mortgage Loan to the Option Holder. 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 and provided to the Special Servicer; 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 Independent 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 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 Special Servicer pursuant to this Section 3.18(b) shall constitute, and
be reimbursable as, Servicing Advances. The other parties to this Agreement
shall cooperate with all reasonable requests for information.
(c) At the time a Mortgage Loan becomes a Defaulted Mortgage Loan,
the Special Servicer and the Majority Certificateholder of the Controlling Class
(each, together with their assignees, an "Option Holder") will have an
assignable option (the "Purchase Option") to purchase such Defaulted Mortgage
Loan (subject to the rights of the ES Controlling Holder (and the ES Majority
Controlling Class Certificateholder if such parties are not the same) if the ES
Component Mortgage Loan is involved, the SB Controlling Holder (and the SB
Majority Controlling Class Certificateholder if such parties are not the same)
if the SB Component Mortgage Loan is involved, the related CBA B Noteholder if a
CBA Mortgage Loan is involved and the Wellbridge Note B Holder, the Wellbridge
Purchase Option Holder and the Wellbridge Mezzanine Lender (if a Wellbridge
Trust Mortgage Loan is involved), set forth in Section 3.18(l) and Section
3.18(m) hereof) from the Trust Fund 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 Prepayment Premium then payable, to the extent the Special Servicer or
the Special Servicer's assignee is identified as the Person that will acquire
the related Mortgage Loan, (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 Advance Rate, and (4) all accrued Master
Servicing Fees, Special Servicing Fees, Trustee Fees, Liquidation Fees, Workout
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 Section 3.18(b), an amount at least equal to such fair value.
Notwithstanding the foregoing, for a period of ninety (90) days after it
receives notice of the Special Servicer's fair value determination and the
related expiration (if any) of the applicable purchase option held by the ES
Controlling Holder, the SB Controlling Holder, the related CBA B Noteholder, and
the Wellbridge Note B Holder (the "Controlling Class Option Period"), only the
Purchase Option held by the Majority Certificateholder of the Controlling Class
may be exercised. Notwithstanding the foregoing and for the avoidance of doubt,
none of the Majority Certificateholder of the Controlling Class, any CBA B
Noteholder (with respect to the related CBA Mortgage Loan), the ES Controlling
Holder (with respect to the ES Component Mortgage Loan), the SB Controlling
Holder (with respect to the SB Component Mortgage Loan) and the Wellbridge Note
B Holder and/or the Wellbridge Mezzanine Lender (with respect to a Wellbridge
Trust Mortgage Loan) shall be required to pay a Liquidation Fee with respect to
any applicable purchase right under this Agreement or with respect to a purchase
of a related Defaulted Mortgage Loan at its fair value as determined in this
Section 3.18 if such purchase occurs or purchase right is exercised not later
than ninety days from the date that the Special Servicer has initially
determined the fair value for the related Defaulted Mortgage Loan.
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 and the Master
Servicer of such transfer and such notice shall include the transferee's name,
address, telephone number, facsimile number and appropriate contact person(s)
and shall be acknowledged in writing by the transferee.
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
Master Servicer's determination set forth in Section 3.18(e) below, upon another
Option Holder's exercise of its Purchase Option with respect to the related
Mortgage Loan becoming effective pursuant to Section 3.18(d) below.
(d) 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 Option Period, each Option Holder (whether the original
grantee of such option or any subsequent transferee) may exercise its Purchase
Option by providing the Master Servicer and the Trustee written notice thereof
(the "Purchase Option Notice"), in the form of Exhibit I, 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. Immediately upon receipt of such Purchase
Option Notice, the Master 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 Master 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 Master 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 Master 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 Master Servicer shall be effective. The
exercise of any Purchase Option pursuant to this Section 3.18(d) shall be
irrevocable.
(e) 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
Master Servicer shall determine whether the Option Price represents fair value
for the Defaulted Mortgage Loan, in the manner set forth in Section 3.18(b) and
as soon as reasonably practicable but in any event within thirty (30) days
(except as such period may be extended as set forth in this paragraph) of its
receipt of the Purchase Option Notice and Determination Information from the
Special Servicer. In determining whether the Option Price represents the fair
value of such Defaulted Mortgage Loan, the Master Servicer may obtain an opinion
as to the fair value of such Defaulted Mortgage Loans, taking into account the
factors set forth in Section 3.18(b), from a Qualified Appraiser or other
Independent expert of recognized standing having experience in evaluating the
value of defaulted mortgage loans which opinion shall be based on a review,
analysis and evaluation of the Determination Information, and to the extent such
Qualified Appraiser or third party deems any such Determination Information to
be defective, incorrect, insufficient or unreliable, such Person may base its
opinion on such other information it deems reasonable or appropriate, and,
absent manifest error, the Master Servicer may conclusively rely on the opinion
of any such Person which was chosen by the Master Servicer with reasonable care.
Notwithstanding the thirty (30) day time period referenced above in this
paragraph, the Master Servicer will have an additional fifteen (15) days to make
a fair value determination if the Person referenced in the immediately preceding
sentence has determined that the Determination Information is defective,
incorrect, insufficient or unreliable. The reasonable costs of all appraisals,
inspection reports and opinions of value, reasonably incurred by the Master
Servicer or any such third party pursuant to this paragraph shall be advanced by
the Master Servicer and shall constitute, and be reimbursable as, Servicing
Advances. In connection with the Master Servicer's determination of fair value,
the Special Servicer shall deliver to the Master Servicer the Determination
Information for the use of the Master Servicer or any such third party.
Notwithstanding anything contained in this Section 3.18(e) to the
contrary, if the Special Servicer or the Majority Certificateholder of the
Controlling Class, 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 Master Servicer and the Special Servicer are Affiliates,
the Trustee shall determine whether the Option Price represents fair value for
the Defaulted Mortgage Loan, in the manner set forth in Section 3.18(b) and as
soon as reasonably practicable but in any event within thirty (30) days (except
as such period may be extended as set forth in this paragraph) of its receipt of
the Purchase Option Notice and Determination Information from the Special
Servicer. In determining whether the Option Price represents the fair value of
such Defaulted Mortgage Loan, the Trustee may obtain an opinion as to the fair
value of such Defaulted Mortgage Loans, taking into account the factors set
forth in Section 3.18(b), from a Qualified Appraiser or other Independent expert
of recognized standing having experience in evaluating the value of defaulted
mortgage loans which opinion shall be based on a review, analysis and evaluation
of the Determination Information, and to the extent such Qualified Appraiser or
third party deems any such Determination Information to be defective, incorrect,
insufficient or unreliable, such Person may base its opinion on such other
information it deems reasonable or appropriate, and absent manifest error, the
Trustee may conclusively rely on the opinion of any such Person which was chosen
by the Trustee with reasonable care. Notwithstanding the thirty (30) day time
period referenced above in this paragraph, the Trustee will have an additional
fifteen (15) days to make a fair value determination if the Person referenced in
the immediately preceding sentence has determined that the Determination
Information is defective, incorrect, insufficient or unreliable. The reasonable
costs of all appraisals, inspection reports and opinions of value, reasonably
incurred by the Trustee or any such third party pursuant to this paragraph shall
be advanced by the Master Servicer and shall constitute, and be reimbursable as,
Servicing Advances. In connection with the Trustee's determination of fair value
the Special Servicer shall deliver to the Trustee the Determination Information
for the use of the Trustee or any such third party.
In the event a designated third party determines that the Option
Price is less than the fair value of the Defaulted Mortgage Loan, such party
shall provide its determination, together with all information and reports it
relied upon in making such determination, to the Special Servicer, who shall
then adjust its fair value determination and, consequently, the Option Price,
pursuant to Section 3.18(b). The Special Servicer shall promptly provide written
notice of any adjustment of the Option Price to the Option Holder whose Purchase
Option has been declared effective pursuant to Section 3.18(d) above. Upon
receipt of such notice, such Option Holder shall have three (3) Business Days to
(i) accept the Option Price as adjusted and proceed in accordance with Section
3.18(f) below, or (ii) reject the Option Price as adjusted, in which case such
Option Holder shall not be obligated to close the purchase of the Defaulted
Mortgage Loan. Upon notice from such Option Holder, or the Special Servicer,
that such Option Holder rejects the Option Price as adjusted, the Master
Servicer and the Trustee shall provide the notices described in the second
paragraph of Section 3.18(f) below and thereafter any Option Holder may exercise
its purchase option in accordance with this Section 3.18, at the Option Price as
adjusted.
(f) The Option Holder whose Purchase Option is declared effective
pursuant to Section 3.18(d) above shall be required to pay the purchase price
specified in its Purchase Option Notice to the Master Servicer within ten (10)
Business Days of its receipt of the Master Servicer's notice confirming that the
exercise of its Purchase Option is effective. Upon receipt of an Officer's
Certificate from the Master Servicer specifying the date for closing the
purchase of the related Defaulted Mortgage Loan, and the purchase price to be
paid therefor, the Trustee shall deliver at such closing for release to or at
the direction of such Option Holder, the related Mortgage File, and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be provided to it by such Option Holder and are
reasonably necessary to vest in the purchaser or any designee thereof the
ownership of such Mortgage Loan. In connection with any such purchase by any
Person other than it, the Special Servicer shall deliver the related Mortgage
File to or at the direction of the purchaser. In any case, the Master Servicer
shall deposit the purchase price into the Certificate Account within one (1)
Business Day following receipt.
The Master Servicer shall immediately notify the Trustee and the
Special Servicer upon the holder of the effective Purchase Option's failure to
remit the purchase price specified in its Purchase Option Notice pursuant to
this Section 3.18(f). 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.
(g) 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 workout, foreclosure and sale of any REO Property, as the Special
Servicer may deem appropriate, consistent with the Asset Status Report and the
Servicing Standard; provided, however, the Special Servicer shall not sell any
Defaulted Mortgage Loan (other than in connection with exercise of a related
Purchase Option).
(h) The Special Servicer shall sell an REO Property in the manner
set forth in Section 3.16(a). 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 Standard, that such a sale would be in the best
economic interests of the Trust Fund. The Special Servicer shall give the
Trustee, the Master Servicer and the Directing Certificateholder, the ES
Controlling Holder (and the ES Majority Controlling Class Certificateholder if
such parties are not the same) if the ES Component Mortgage Loan is involved,
the SB Controlling Holder (and the SB Majority Controlling Class
Certificateholder if such parties are not the same) if the SB Component Mortgage
Loan is involved, the related CBA B Noteholder if a CBA Mortgage Loan is
involved, the Wellbridge Note B Holder and the Wellbridge Purchase Option Holder
if a Wellbridge Trust Mortgage Loan is involved, not less than five (5) Business
Days' prior written notice of its intention to 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 the
Servicing Standard, the Master Servicer, an Affiliate of the Master Servicer,
the Special Servicer or an Affiliate of the Special Servicer, or an employee of
any 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 offeror 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 offeror 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 the Servicing Standard, 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 Standard 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 an Appraisal from a Qualified Appraiser, at the expense of
the Trust Fund. In determining whether any offer constitutes a fair price for
any REO Property, the Trustee (or, if applicable, such Qualified Appraiser)
shall take into account, and any appraiser 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.
(i) Subject to the Servicing Standard and the REMIC Provisions, 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, any Servicer, or the
Trust Fund (except that any contract of sale and assignment and conveyance
documents may contain customary representations and warranties of title,
condition and authority 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 Master Servicer, the Special Servicer, the Depositor, the
Trustee nor the Fiscal Agent 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.
(j) The Special Servicer shall, within two (2) Business Days
following its receipt of available funds, remit to the Master Servicer the
proceeds of any sale after deduction of the expenses of such sale incurred in
connection therewith for deposit into the Certificate Account. The Trustee, upon
receipt of an Officer's Certificate from the Master Servicer to the effect that
such deposit has been made, shall release or cause to be released to the party
or parties effecting such purchase (or any designee thereof) 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 and are
reasonably necessary to vest in the purchaser of such Defaulted Mortgage Loan
effecting such purchase (or any designee thereof) ownership of such Mortgage
Loan. In connection with any such purchase, the Special Servicer shall deliver
the related Servicing File to the purchaser of such Defaulted Mortgage Loan with
the cooperation of the Master Servicer effecting such purchase (or any designee
thereof).
(k) Subject to Sections 3.18(a) through 3.18(j) above, the Special
Servicer shall act on behalf of the Trustee in negotiating and taking any other
action necessary or appropriate in connection with the sale of any Defaulted
Mortgage Loan or REO Property, and the collection of all amounts payable in
connection therewith. In connection therewith, the Special Servicer may charge
prospective offerors, and may retain, fees that approximate the Special
Servicer's actual costs in the preparation and delivery of information
pertaining to such sales or evaluating offers without obligation to deposit such
amounts into the Certificate Account or if a Loan Pair is involved in the
related Loan Custodial Account provided no such fees and charges shall be
charged by the Special Servicer to the Controlling Class Option Holder or any
assignee in connection with the sale of Defaulted Mortgage Loans. Any sale of a
Defaulted Mortgage Loan or any REO Property shall be final and without recourse
to the Trustee, the Fiscal Agent or the Trust except as provided in Section
3.18(i), and if such sale is consummated in accordance with the terms of this
Agreement, none of the Depositor, the Special Servicer, the Master Servicer, the
Trustee or the Fiscal Agent shall have any liability to any Certificateholder
with respect to the purchase price therefor accepted by the Special Servicer or
the Trustee.
(l) If the ES Component Mortgage Loan or the SB Component Mortgage
Loan becomes a Defaulted Mortgage Loan, the Special Servicer shall promptly
notify in writing the Master Servicer, the Trustee, the Directing
Certificateholder, the ES Controlling Holder (and the ES Controlling Class
Holder if such parties are not the same) if the ES Component Mortgage Loan is
involved, or the SB Controlling Holder (and the SB Controlling Class Holder if
such parties are not the same), if the SB Component Mortgage Loan is involved,
and the Trustee, following its receipt of such notice, shall promptly notify the
ES Controlling Holder and the SB Controlling Holder, as applicable. Upon receipt
of such notice, the ES Controlling Holder, if the ES Controlling Holder is the
ES Controlling Class Holder, or the SB Controlling Holder if the SB Controlling
Class Holder is the Controlling Holder will have the first option, but not the
obligation, to purchase the ES Component Mortgage Loan or the SB Component
Mortgage Loan, respectively, from the Trust Fund at a price equal to the
Purchase Price thereof. If the ES Controlling Class Holder in its capacity as ES
Controlling Holder or the SB Controlling Class Holder in its capacity as SB
Controlling Holder fails to exercise its related option within 30 days after
receipt of such notice, then the ES Component Mortgage Loan may be sold in
accordance with Sections 3.18(b), (c) and (d) and with respect to the SB
Component Mortgage Loan only, the purchase option shall remain open on a
non-exclusive basis for an additional 60 days from the expiration of such 30 day
period at a purchase price equal to the Purchase Price, and thereafter, if the
SB Component Mortgage Loan purchase option has not been exercised, the SB
Component Mortgage Loan may be sold in accordance with Section 3.18(b), (c) and
(d).
(m) Notwithstanding anything to the contrary herein, (i) the
Wellbridge Note B Holder shall be entitled to purchase the Wellbridge Mortgage
Loan in accordance with the terms and conditions set forth in Section 8 of the
Wellbridge Co-Lender Agreement, even after it has been purchased out of the
Trust Fund pursuant to this Section 3.18, (ii) the Wellbridge Mezzanine Lender
shall be entitled to purchase the Wellbridge Mortgage Loan in accordance with
the terms and conditions set forth in Section 13 of the Wellbridge Mezzanine
Intercreditor Agreement, and (iii) each CBA B Noteholder shall be entitled to
purchase the related CBA Mortgage Loan in accordance with the terms and
conditions set forth in Section 8 of the related CBA Co-Lender Agreement. The
Master Servicer or the Special Servicer, as applicable, shall determine the
price to be paid in accordance with the terms of the related Co-Lender Agreement
in connection with any such purchase and shall provide such notices to the
related Companion Loan Noteholders as are required by the related Co-Lender
Agreement in connection with such holders' purchase rights. Any purchase of a
Specially Serviced Loan that is purchased pursuant to this Section 3.18 will
remain subject to the purchase rights of, in each case if applicable, (x) the
Wellbridge Note B Holder as set forth in the Wellbridge Co-Lender Agreement and
(y) any CBA B Noteholder as set forth in the related CBA Co-Lender Agreement.
(n) Notwithstanding anything in this Agreement to contrary, in no
event with respect to the ES Component Mortgage Loan, the SB Component Mortgage
Loan or the Wellbridge A/B Mortgage Loan, will the related Mortgagor (or any of
its affiliates) under the related Loan be permitted to purchase the related Loan
should such Loan become a Defaulted Mortgage Loan under this Agreement.
SECTION 3.19 Additional Obligations of the Master Servicer and the
Special Servicer.
(a) The Master Servicer shall maintain at its Primary Servicing
Office and shall, upon reasonable advance written notice, make available for
review by each Rating Agency and by any Certificateholder or Certificate Owner
or any Person identified to the Master Servicer as a prospective transferee of a
Certificate or an interest therein, copies of the Servicing Files; provided
that, if the Master Servicer in its reasonable, good faith determination
believes that any item of information contained in such Servicing Files is of a
nature that it should be conveyed to all Certificateholders at the same time, it
shall, as soon as reasonably possible following its receipt of any such item of
information, disclose such item of information to the Trustee as part of the
reports to be delivered to the Trustee by the Master Servicer pursuant to
Section 4.02(b), and until the Trustee has either disclosed such information to
all Certificateholders in a Distribution Date Statement or has properly filed
such information with the Commission on behalf of the Trust under the Exchange
Act, the Master Servicer shall be entitled to withhold such item of information
from any Certificateholder or Certificate Owner or prospective transferee of a
Certificate or an interest therein; and provided, further, that the Master
Servicer shall not be required to make particular items of information contained
in the Servicing File for any Loan available to any Person if the disclosure of
such particular items of information is expressly prohibited by applicable law
or the provisions of any related Mortgage Loan documents. Except as set forth in
the provisos to the preceding sentence, copies of all or any portion of any
Servicing File are to be made available by the Master Servicer upon request;
however, the Master Servicer shall be permitted to require payment of a sum
sufficient to cover the reasonable out-of-pocket costs for making such copies
(other than with respect to the Rating Agencies (and the Majority
Certificateholder of the Controlling Class). The Special Servicer shall, as to
each Specially Serviced Loan and REO Property, promptly deliver to the Master
Servicer a copy of each document or instrument added to the related Servicing
File, and the Master Servicer shall in no way be in default under this Section
3.19(a) solely by reason of the Special Servicer's failure to do so.
In connection with providing access to or copies of the items
described in the preceding paragraph, the Master Servicer may require, unless
the Depositor directs otherwise, (a) in the case of Certificate Owners, a
written confirmation executed by the requesting Person, in form reasonably
satisfactory to the Master Servicer, generally to the effect that such Person is
a beneficial holder of Certificates and will otherwise keep such information
confidential and (b) in the case of a prospective purchaser, confirmation
executed by the requesting Person generally to the effect that such Person is a
prospective purchaser of a Certificate or an interest therein, is requesting the
information for use in evaluating a possible investment in Certificates and will
otherwise keep such information confidential. All Certificateholders, by the
acceptance of their Certificates, shall be deemed to have agreed to keep such
information confidential, except to the extent that the Depositor grants written
permission to the contrary or to the extent such information is public
information. The Master Servicer shall not be liable for the dissemination of
information in accordance with this Section 3.19(a).
(b) Promptly following the occurrence of an Appraisal Trigger Event
with respect to any Mortgage Loan or A/B Mortgage Loan (each such Mortgage Loan
or A/B Mortgage Loan and any related REO Loan, until it ceases to be such in
accordance with the following paragraph, a "Required Appraisal Loan"), the
Special Servicer shall obtain (or, if such Loan has a Stated Principal Balance
of $2,000,000 or less, at its discretion, conduct) an Appraisal of the related
Mortgaged Property, unless an Appraisal thereof had previously been obtained
(or, if applicable, conducted) within the preceding 12-month period and there
has been no subsequent material change in the circumstances surrounding the
related Mortgaged Property that, in the judgment of the Special Servicer, would
materially affect the value of the property, and shall deliver a copy of such
Appraisal to the Trustee, the Master Servicer, the Directing Certificateholder,
the ES Controlling Holder (if the ES Component Mortgage Loan is involved), the
SB Controlling Holder (if the SB Component Mortgage Loan is involved), the
related CBA B Note Holder (if the related CBA A/B Mortgage Loan is involved) or
the Wellbridge Controlling Holder and Wellbridge Companion Loan Noteholders (if
the Wellbridge A/B Mortgage Loan is involved), any Requesting Subordinate
Certificateholder (subject to the second paragraph of Section 11.10). If such
Appraisal is obtained from a Qualified Appraiser, the cost thereof shall be
covered by, and be reimbursable as, a Servicing Advance. Promptly following the
receipt of, and based upon, such Appraisal, the Special Servicer shall determine
and report to the Trustee, the Master Servicer, the Directing Certificateholder,
the then applicable Appraisal Reduction Amount, if any, with respect to the
subject Required Appraisal Loan.
For so long as any Mortgage Loan or REO Loan remains a Required
Appraisal Loan, the Special Servicer shall, within 30 days of each anniversary
of such loan's having become a Required Appraisal Loan, obtain (or, if such
Required Appraisal Loan has a Stated Principal Balance of $2,000,000 or less, at
its discretion, conduct) an update of the prior Appraisal, and shall deliver a
copy of such update to the Trustee, the Master Servicer, the Directing
Certificateholder. If such update is obtained from a Qualified Appraiser, the
cost thereof shall be covered by, and be reimbursable as, a Servicing Advance.
Promptly following the receipt of, and based upon, such update, the Special
Servicer shall redetermine and report to the Trustee, the Master Servicer, the
Directing Certificateholder, the ES Controlling Holder (if the ES Component
Mortgage Loan is involved), the SB Controlling Holder (if the SB Component
Mortgage Loan is involved), the related CBA B Note Holder (if the related CBA
A/B Mortgage Loan is involved) or the Wellbridge Controlling Holder and
Wellbridge Companion Loan Noteholders (if the Wellbridge A/B Mortgage Loan is
involved), the then applicable Appraisal Reduction Amount, if any, with respect
to the subject Required Appraisal Loan.
The Directing Certificateholder, the ES Controlling Holder (if the
ES Component Mortgage Loan is involved), the SB Controlling Holder (if the SB
Component Mortgage Loan is involved), the related CBA B Note Holder (if the
related CBA A/B Mortgage Loan is involved) or the Wellbridge Controlling Holder
and Wellbridge Companion Loan Noteholders (if the Wellbridge A/B Mortgage Loan
is involved) have the right at any time within six months of the date of the
receipt of any Appraisal to require that the Special Servicer obtain a new
Appraisal of the subject Mortgaged Property in accordance with MAI standards, at
the expense of the Controlling Class Certificateholder, the ES Controlling
Holder (if the ES Component Mortgage Loan is involved), the SB Controlling
Holder (if the SB Component Mortgage Loan is involved), the related CBA B Note
Holder (if the related CBA A/B Mortgage Loan is involved) or the Wellbridge
Controlling Holder and Wellbridge Companion Loan Noteholders (if the Wellbridge
A/B Mortgage Loan is involved). Upon receipt of such Appraisal the Special
Servicer shall deliver a copy thereof to the Trustee, the Master Servicer, the
Directing Certificateholder, the ES Controlling Holder (if the ES Component
Mortgage Loan is involved), the SB Controlling Holder (if the SB Component
Mortgage Loan is involved), the related CBA B Note Holder (if the related CBA
A/B Mortgage Loan is involved) or the Wellbridge Controlling Holder and
Wellbridge Companion Loan Noteholders (if the Wellbridge A/B Mortgage Loan is
involved). Promptly following the receipt of, and based upon, such Appraisal,
the Special Servicer shall redetermine and report to the Trustee, the Master
Servicer, the Directing Certificateholder, the ES Controlling Holder (if the ES
Component Mortgage Loan is involved), the SB Controlling Holder (if the SB
Component Mortgage Loan is involved), the related CBA B Note Holder (if the
related CBA A/B Mortgage Loan is involved) or the Wellbridge Controlling Holder
and Wellbridge Companion Loan Noteholders (if the Wellbridge A/B Mortgage Loan
is involved), the then applicable Appraisal Reduction Amount, if any, with
respect to the subject Required Appraisal Loan.
(c) The Master Servicer and the Special Servicer shall each deliver
to the other, to the Trustee, to the Directing Certificateholder, the ES
Controlling Holder (if the ES Component Mortgage Loan is involved), the SB
Controlling Holder (if the SB Component Mortgage Loan is involved), the related
CBA B Note Holder (if the related CBA A/B Mortgage Loan is involved) or the
Wellbridge Controlling Holder and Wellbridge Companion Loan Noteholders (if the
Wellbridge A/B Mortgage Loan is involved) (for inclusion in the Mortgage File),
copies of all Appraisals, environmental reports and engineering reports (or, in
each case, updates thereof) obtained with respect to any Mortgaged Property or
REO Property. Upon the request of any Rating Agency or any Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O
and Class P Certificateholder, pursuant to Section 8.12(b), the Trustee shall
deliver copies of any of the items delivered pursuant to the preceding sentence
to such requesting Person.
(d) No more frequently than once per calendar month, the Special
Servicer may require the Master Servicer, and the Master Servicer shall be
obligated subject to the second following paragraph to reimburse the Special
Servicer for any Servicing Advances which were made by the Special Servicer
(notwithstanding the fact that it has no obligation to make such Servicing
Advances), but not previously reimbursed (whether pursuant to this Section
3.19(d) or otherwise) to the Special Servicer, and to pay the Special Servicer
interest thereon at the Reimbursement Rate from the date made to, but not
including, the date of reimbursement. Such reimbursement and any accompanying
payment of interest shall be made within ten (10) days of the request therefor
by wire transfer of immediately available funds to an account designated by the
Special Servicer. Upon the Master Servicer's reimbursement to the Special
Servicer of any Servicing Advance and payment to the Special Servicer of
interest thereon, all in accordance with this Section 3.19(d), the Master
Servicer shall for all purposes of this Agreement be deemed to have made such
Servicing Advance at the same time as the Special Servicer originally made such
Advance, and accordingly, the Master Servicer shall be entitled to reimbursement
for such Advance, together with Advance Interest thereon, at the same time, in
the same manner and to the same extent as the Master Servicer would otherwise
have been entitled if it had actually made such Servicing Advance.
Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer (i) is required under any other provision of
this Agreement to direct the Master Servicer to make a Servicing Advance or (ii)
is otherwise aware a reasonable period in advance that it is reasonably likely
that the Special Servicer will incur a cost or expense that will, when incurred,
constitute a Servicing Advance, the Special Servicer shall (in the case of
clause (i) preceding), and shall use reasonable efforts to (in the case of
clause (ii) preceding), request that the Master Servicer make such Servicing
Advance, such request to be made in writing and confirmed by both parties and in
a timely manner that does not materially and adversely affect the interests of
any Certificateholder, and accompanied by sufficient information for the Master
Servicer to make recoverability determinations, and at least ten (10) Business
Days prior to the date on which failure to make such Servicing Advance would
(with notice from the Trustee regardless of whether such notice is actually
received) constitute an Event of Default pursuant to Section 7.01(a)(v);
provided, however, that the Special Servicer shall, with respect to Specially
Serviced Loans and REO Properties, make any Servicing Advance that it fails to
timely request the Master Servicer to make. Subject to the following paragraph,
the Master Servicer shall have the obligation to make any such Servicing Advance
that it is requested by the Special Servicer to make within five (5) Business
Days of the Master Servicer's receipt of such request and such information and
documents as are reasonably necessary for the Master Servicer to make such
Servicing Advance and to determine recoverability. Subject to the foregoing, the
Special Servicer shall be relieved of any obligations with respect to a
Servicing Advance that it timely requests the Master Servicer to make
(regardless of whether or not the Master Servicer shall make such Servicing
Advance). The Master Servicer shall be entitled to reimbursement for any
Servicing Advance made by it at the direction of the Special Servicer, together
with Advance Interest thereon, at the same time, in the same manner and to the
same extent as the Master Servicer is entitled with respect to any other
Servicing Advance made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(d) or
any other provision of this Agreement to the contrary, the Master Servicer shall
not be required to reimburse the Special Servicer for, or make at the Special
Servicer's direction, any Servicing Advance if the Master Servicer determines in
its reasonable, good faith judgment that the Servicing Advance which the Special
Servicer is directing the Master Servicer to reimburse it for or make hereunder,
although not characterized by the Special Servicer as a Nonrecoverable Servicing
Advance, is or would be, if made, a Nonrecoverable Servicing Advance. The Master
Servicer shall notify the Special Servicer and the Trustee in writing of such
determination. Such notice shall not obligate the Special Servicer to make such
Servicing Advance.
(e) The Master Servicer shall deliver to the Trustee for deposit in
the Distribution Account by 2:00 p.m. (New York City time) on each Master
Servicer Remittance Date, without any right of reimbursement therefor, a cash
payment (a "Compensating Interest Payment") in an amount equal to the sum of (i)
the aggregate amount of Balloon Payment Interest Shortfalls, if any, incurred in
connection with Balloon Payments received in respect of the Mortgage Pool during
the most recently ended Collection Period, plus (ii) the lesser of (A) the
aggregate amount of Prepayment Interest Shortfalls, if any, incurred in
connection with Principal Prepayments received in respect of the Mortgage Pool
during the most recently ended Collection Period, and (B) the aggregate of (1)
that portion of its Master Servicing Fees for the related Collection Period that
is, in the case of each and every Mortgage Loan and REO Loan for which such
Master Servicing Fees are being paid in such Collection Period, calculated at
0.01% per annum, and (2) all Prepayment Interest Excesses received in respect of
the Mortgage Pool during the most recently ended Collection Period, plus (iii)
in the event that any Principal Prepayment was received on the last Business Day
of the second most recently ended Collection Period, but for any reason was not
included as part of the Master Servicer Remittance Amount for the preceding
Master Servicer Remittance Date (other than because of application of the
subject Principal Prepayment in accordance with Section 3.05(a) for another
purpose), the total of all interest and other income accrued or earned on the
amount of such Principal Prepayment while it is on deposit in the Certificate
Account or, in the case of a Mortgage Loan included in a Loan Pair, Section
3.05(f).
(f) Except under the same circumstances that it would be permitted
to waive a prepayment lockout provision in the subject Mortgage Loan pursuant to
Section 3.20(a), neither the Master Servicer nor the Special Servicer shall
consent to any Mortgagor's prepaying its Mortgage Loan, partially or in its
entirety, if the Mortgagor would be prohibited from doing so without such
consent. In each case subject to the Servicing Standard and applicable law and
to the extent permitted by the related Loan documents, the Master Servicer and
the Special Servicer agree not to accept any Principal Prepayments with respect
to any Loan on a date other than the applicable due date therefor except that
the Special Servicer shall be permitted to accept Principal Prepayments with the
consent of the Directing Certificateholder.
(g) The Master Servicer shall not exercise any discretionary right
it has with respect to any Mortgage Loan pursuant to the related Mortgage Note
or Mortgage to apply any amounts maintained as an escrow or reserve to the
principal balance of such Mortgage Loan except in the case of a default
thereunder.
(h) The Master Servicer shall send written notice to each Borrower
to the effect that, if applicable, the Master Servicer and/or the Trustee have
been appointed as the "designee" of the lender under any related Lock-Box
Agreement.
(i) In connection with each prepayment of principal received
hereunder, the Master Servicer shall calculate any applicable Prepayment Premium
under the terms of the related Mortgage Note. Promptly following its
determination thereof, the Master Servicer shall disclose to the Trustee its
calculation of any such Prepayment Premium.
(j) The Master Servicer shall, as to each Loan which is secured by
the interest of the related Mortgagor under a Ground Lease, promptly (and in any
event within 45 days) after the Closing Date notify the related ground lessor of
the transfer of such Mortgage Loan to the Trust pursuant to this Agreement and
inform such ground lessor that any notices of default under the related Ground
Lease should thereafter be forwarded to the Master Servicer.
(k) The Master Servicer or the Special Servicer, as applicable,
shall exercise the rights, and perform the obligations, of the "Senior Lender"
pursuant to the Wellbridge Mezzanine Intercreditor Agreement, in each case, as
assignee thereof.
(l) Subject to the Loan documents and applicable law, the Special
Servicer shall not consent to the foreclosure of any Mezzanine Loan other than
by a Permitted Mezzanine Loan Holder and shall not consent to the transfer of
any Mezzanine Loan except to a Permitted Mezzanine Loan Holder.
(m) Notwithstanding any other provision in this Agreement, including
Section 3.08, no "due-on-sale" provision shall be triggered solely because of
the right, if any, of any Mezzanine Loan Holder to foreclose upon the equity in
the related Borrower pursuant to the terms of the related Mezzanine Loan and
Mezzanine Intercreditor Agreement.
SECTION 3.20 Modifications, Waivers, Amendments and Consents.
(a) The Master Servicer (solely as to Performing Loans) and the
Special Servicer (as to Specially Serviced Loans) each may, consistent with the
Servicing Standard, agree to any modification, waiver or amendment of any term
of, forgive or defer the payment of interest (including, without limitation,
Default Interest ) on and principal of, forgive late payment charges and
Prepayment Premiums on, permit the release, addition or substitution of
collateral securing, and/or permit the release of the Mortgagor on or any
guarantor of any Mortgage Loan it is required to service and administer
hereunder without the consent of the Trustee or any Certificateholder, subject,
however, to Section 3.02, Section 3.08, Section 3.21 and Section 3.28 and each
of the following limitations, conditions and restrictions:
(i) other than as provided in Sections 2.03(b), 3.02, 3.08 and
3.20(f), the Master Servicer shall not agree to any modification, waiver
or amendment of any term of, or take any of the other acts referenced in
this Section 3.20(a) with respect to, any Mortgage Loan, that would affect
the amount or timing of any related payment of principal, interest or
other amount payable under such Loan or affect the security for such Loan,
unless the Master Servicer has obtained the consent of the Special
Servicer (it being understood and agreed that (A) the Master Servicer
shall promptly provide the Special Servicer with notice of any Mortgagor's
request for such modification, waiver or amendment, the Master Servicer's
recommendations and analysis, and with all information reasonably
available to the Master Servicer that the Special Servicer may reasonably
request in order to withhold or grant any such consent, each of which
shall be provided reasonably promptly in accordance with the Servicing
Standard, (B) the Special Servicer shall decide whether to withhold or
grant such consent in accordance with the Servicing Standard and (C) if
any such request has not been expressly responded to within ten (10)
Business Days of the Special Servicer's receipt from the Master Servicer
of the Master Servicer's recommendations and analysis and all information
reasonably requested thereby and reasonably available to the Master
Servicer in order to make an informed decision (or, if the Special
Servicer did not request any information, within ten (10) Business Days
from such notice), such consent shall be deemed to have been granted);
(ii) other than as provided in Sections 3.02 and 3.08, the Special
Servicer shall not agree to (or, in the case of a Performing Loan, consent
to the Master Servicer's agreeing to) any modification, waiver or
amendment of any term of, or take (or, in the case of a Performing Loan,
consent to the Master Servicer's taking) any of the other acts referenced
in this Section 3.20(a) with respect to, any Loan that would affect the
amount or timing of any related payment of principal, interest or other
amount payable thereunder or, in the reasonable, good faith judgment of
the Special Servicer, would add to, release, substitute for, or otherwise
alter a material amount of the security for such Loan, unless a material
default on such Loan has occurred or, in the reasonable, good faith
judgment of the Special Servicer, a default in respect of payment on such
Loan is reasonably foreseeable, and such modification, waiver, amendment
or other action is reasonably likely to produce a greater recovery to
Certificateholders (as a collective whole) on a net present value basis
than would liquidation;
(iii) the Special Servicer shall not extend (or, in the case of a
Performing Loan, consent to the Master Servicer's extending) the date on
which any Balloon Payment is scheduled to be due on any Mortgage Loan to a
date beyond the earliest of (A)(i) two years prior to the Rated Final
Distribution Date with respect to the Non-Partitioned Loans and (ii) and,
with respect to the ES Component Mortgage Loan, the SB Component Mortgage
Loan and the Wellbridge A/B Mortgage Loan, five years prior to the related
Rated Final Distribution Date, and (B) if such Loan is secured by a
Mortgage solely or primarily on the related Mortgagor's leasehold interest
in the related Mortgaged Property, 20 years (or, to the extent consistent
with the Servicing Standard, giving due consideration to the remaining
term of the Ground Lease, 10 years) prior to the end of the then current
term of the related Ground Lease (plus any unilateral options to extend);
(iv) neither the Master Servicer nor the Special Servicer shall make
or permit any modification, waiver or amendment of any term of, or take
any of the other acts referenced in this Section 3.20(a) with respect to,
any Mortgage Loan that would result in an Adverse REMIC Event with respect
to any of the Component Mortgage Loan REMIC, REMIC I or REMIC II;
(v) subject to applicable law, the related Mortgage Loan documents
and the Servicing Standard, neither the Master Servicer nor the Special
Servicer shall permit any modification, waiver or amendment of any term of
any Mortgage Loan unless all related fees and expenses are paid by the
related Mortgagor;
(vi) the Special Servicer shall not permit (or, in the case of a
Performing Loan, consent to the Master Servicer's permitting) any
Mortgagor to add or substitute any real estate collateral for its Loan
unless the Special Servicer shall have first determined in its reasonable,
good faith judgment, based upon a Phase I Environmental Assessment (and
any additional environmental testing that the Special Servicer deems
necessary and prudent) conducted by an Independent Person who regularly
conducts Phase I Environmental Assessments, at the expense of the
Mortgagor, that such additional or substitute collateral is in compliance
with applicable environmental laws and regulations and that there are no
circumstances or conditions present with respect to such new collateral
relating to the use, management or disposal of any Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or
remediation would be required under any then applicable environmental laws
or regulations; and
(vii) the Special Servicer shall not release (or, in the case of a
Performing Loan, consent to the Master Servicer's releasing), including in
connection with a substitution contemplated by clause (vi) above, any
collateral securing an outstanding Loan, except as provided in Section
3.09(d), or except where a Loan (or, in the case of a Cross-Collateralized
Group, where such entire Cross-Collateralized Group) is satisfied, or
except in the case of a release where (A) either (1) the use of the
collateral to be released will not, in the good faith and reasonable
judgment of the Special Servicer, materially and adversely affect the net
operating income being generated by or the use of the related Mortgaged
Property, or (2) there is a corresponding principal pay down of such Loan
in an amount at least equal to the appraised value of the collateral to be
released (or substitute collateral with an appraised value at least equal
to that of the collateral to be released, is delivered), (B) the remaining
Mortgaged Property (together with any substitute collateral) is, in the
Special Servicer's good faith and reasonable judgment, adequate security
for the remaining Loan and (C) such release would not, in and of itself,
result in an Adverse Rating Event with respect to any Class of Rated
Certificates (as confirmed in writing to the Trustee by each Rating
Agency);
provided that the limitations, conditions and restrictions set forth in clauses
(i) through (vii) above shall not apply to any act or event (including, without
limitation, a release, substitution or addition of collateral) in respect of any
Loan that either occurs automatically, or results from the exercise of a
unilateral option by the related Mortgagor within the meaning of Treasury
Regulations Section 1.1001-3(c)(2)(iii), in any event under the terms of such
Loan in effect on the Closing Date (or, in the case of a Replacement Mortgage
Loan, on the related date of substitution); and provided, further, that,
notwithstanding clauses (i) through (vii) above, neither the Master Servicer nor
the Special Servicer shall be required to oppose the confirmation of a plan in
any bankruptcy or similar proceeding involving a Mortgagor if, in its
reasonable, good faith judgment, such opposition would not ultimately prevent
the confirmation of such plan or one substantially similar; and provided,
further, that, notwithstanding clause (vii) above, neither the Master Servicer
nor the Special Servicer shall be required to obtain any confirmation of the
Certificate ratings from the Rating Agencies in order to grant, or to
subordinate the lien of Loans to, easements that do not materially affect the
use or value of a Mortgaged Property or the Mortgagor's ability to make any
payments with respect to the related Loan.
(b) Neither the Master Servicer nor the Special Servicer shall have
any liability to the Trust, the Certificateholders and in the case of a Loan
Pair, the related Companion Loan Noteholders (as a collective whole) or any
other Person if its analysis and determination that the modification, waiver,
amendment or other action contemplated by Section 3.20(a) is reasonably likely
to produce a greater recovery to Certificateholders and in the case of a Loan
Pair, the related Companion Loan Noteholders (as a collective whole) on a net
present value basis than would liquidation, should prove to be wrong or
incorrect, so long as the analysis and determination were made on a reasonable
basis by the Special Servicer or the Master Servicer, as applicable, consistent
with the Servicing Standard. Each such determination shall be evidenced by an
Officer's Certificate to such effect to be delivered by the Special Servicer to
the Trustee, the Directing Certificateholder, the ES Controlling Holder (if the
ES Component Mortgage Loan is involved), the SB Controlling Holder (if the SB
Component Mortgage Loan is involved), the related CBA B Note Holder (if the
related CBA A/B Mortgage Loan is involved) or the Wellbridge Controlling Holder
and Wellbridge Companion Loan Noteholders (if the Wellbridge A/B Mortgage Loan
is involved). The Special Servicer shall include with any such Officer's
Certificate the supporting documentation forming the basis for its conclusion.
(c) Any payment of interest which is deferred pursuant to Section
3.20(a) shall not, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit or that such
interest may actually be capitalized.
(d) The Master Servicer (as to Performing Loans) and the Special
Servicer (as to Specially Serviced Loans) each may, as a condition to its
granting any request by a Mortgagor for consent, modification, waiver or
indulgence or any other matter or thing, the granting of which is within the
Master Servicer's or 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 it, as additional servicing compensation, a reasonable fee relating to such
consent, modification, waiver or indulgence (not to exceed 1.0% of the unpaid
principal balance of the related Mortgage Loan) for the additional services
performed in connection with such request, together with any related costs and
expenses incurred by it; provided that the charging of such fees would not
otherwise constitute a "significant modification" of the Mortgage Loan pursuant
to Treasury Regulations Section 1.860G-2(b). All such fees collected by the
Master Servicer and/or the Special Servicer shall be allocable between such
parties, as Additional Master Servicing Compensation and Additional Special
Servicing Compensation, respectively, as provided in Section 3.11.
(e) All modifications, waivers, amendments and other actions entered
into or taken in respect of the Loans pursuant to the preceding subsections of
this Section 3.20 shall be in writing. Each of the Master Servicer and the
Special Servicer shall notify the other such party, the Trustee, the Directing
Certificateholder, the ES Controlling Holder (if the ES Component Mortgage Loan
is involved), the SB Controlling Holder (if the SB Component Mortgage Loan is
involved), the related CBA B Note Holder (if the related CBA A/B Mortgage Loan
is involved) or the Wellbridge Controlling Holder and Wellbridge Companion Loan
Noteholders (if the Wellbridge A/B Mortgage Loan is involved), in writing, of
any modification, waiver, amendment or other action entered into or taken in
respect of any Loan pursuant to this Section 3.20 and the date thereof, and
shall deliver to the Trustee or the related Custodian for deposit in the related
Mortgage File (with a copy to the other such party), an original counterpart of
the agreement relating to such modification, waiver, amendment or other action,
promptly (and in any event within 10 Business Days) following the execution
thereof. In addition, following the execution of any modification, waiver or
amendment agreed to by the Special Servicer pursuant to Section 3.20(a) above,
the Special Servicer shall deliver to the Master Servicer and the Trustee an
Officer's Certificate setting forth in reasonable detail the basis of the
determination made by it pursuant to clause (ii) of Section 3.20(a).
(f) The Master Servicer shall not be required to seek the consent of
the Special Servicer or any Certificateholder or obtain any confirmation of the
Certificate ratings from the Rating Agencies subject to any prohibitions set
forth in a Co-Lender Agreement with respect to the related Co-Lender Agreement
in order to approve the following modifications, waivers or amendments of the
Loans: (i) waivers of minor covenant defaults (other than financial covenants),
including late financial statements; (ii) releases of non-material parcels of a
Mortgaged Property; (iii) grants of easements or subordinations of the lien of
Loans to easements that do not materially affect the use or value of a Mortgaged
Property or a borrower's ability to make any payments with respect to the
related Loan; and (iv) other routine approvals, including the granting of
subordination, non-disturbance and attornment agreements and leasing consents,
typically performed by a Master Servicer on a routine basis; 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 Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would not
otherwise constitute an Adverse REMIC Event, (y) agreeing to such modification,
waiver or amendment would be consistent with the Servicing Standard, 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.
(g) In connection with granting an extension of the maturity date of
any Loan in accordance with Section 3.20(a), the Special Servicer, in the case
of a Specially Serviced Loan, and the Master Servicer, in the case of a
Performing Loan, shall each cause the related Mortgagor to agree, if it has not
already done so pursuant to the existing Mortgage Loan documents, to thereafter
deliver to the Special Servicer, the Trustee and the Directing
Certificateholder, the ES Controlling Holder (if the ES Component Mortgage Loan
is involved), the SB Controlling Holder (if the SB Component Mortgage Loan is
involved), the related CBA B Note Holder (if the related CBA A/B Mortgage Loan
is involved) or the Wellbridge Controlling Holder and Wellbridge Companion Loan
Noteholders (if the Wellbridge A/B Mortgage Loan is involved) audited operating
statements on a quarterly basis with respect to the related Mortgaged Property,
provided that the Special Servicer or the Master Servicer, as the case may be,
may, in its sole discretion, waive the requirement that such statements be
audited.
(h) If the Master Servicer or the Special Servicer collects a
modification fee or a modification application fee in connection with a
modification or proposed modification of a Mortgage Loan, then the Master
Servicer or the Special Servicer, as applicable, will apply that fee to cover
the costs and expenses associated with that modification or proposed
modification that are not otherwise paid by the related Mortgagor and that would
otherwise be payable or reimbursable out of the Trust Fund, including any Rating
Agency fees and expenses. Any remaining portion of such modification fee (such
remaining portion, a "Net Modification Fee") or of such modification application
fee (such remaining portion, a "Net Modification Application Fee") will be
applied as additional compensation to the Master Servicer or the Special
Servicer in accordance with Section 3.11.
SECTION 3.21 Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping; Asset Status
Report; Directing Certificateholder.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Loan, the Master Servicer shall immediately give notice
thereof to the Directing Certificateholder, the ES Controlling Holder (if the ES
Component Mortgage Loan is involved), the SB Controlling Holder (if the SB
Component Mortgage Loan is involved), the related CBA B Note Holder (if the
related CBA A/B Mortgage Loan is involved) or the Wellbridge Controlling Holder
and Wellbridge Companion Loan Noteholders (if the Wellbridge A/B Mortgage Loan
is involved), and deliver the related Servicing File to the Special Servicer and
shall use its best efforts to provide the Special Servicer with all information,
documents (or copies thereof) and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Loan and reasonably requested by the Special Servicer to enable it to assume its
functions hereunder with respect thereto without acting through a Sub-Servicer.
Notwithstanding anything in Section 2.01(b) or any other provision of this
Agreement to the contrary, the copying and delivery of such documents,
instruments, items, records and information shall not be at the expense of the
Special Servicer. At its option, although its Sub-Servicing Agreement is
terminated, the related Sub-Servicer, without any compensation therefor, may
retain Loans on its computer systems while such Loans are Specially Serviced
Loans, provided that no Sub-Servicer shall take any action with respect thereto
so long as such Loan is a Specially Serviced Loan and provided that the Master
Servicer shall assume all the Master Servicing duties with respect to that Loan
as provided in the second succeeding paragraph. The Master Servicer shall use
its best efforts to comply with the third preceding sentence within five (5)
Business Days of the occurrence of each related Servicing Transfer Event. The
Master Servicer shall deliver to each Class D, Class E, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O and Class P
Certificateholder that shall have requested a copy of any such notice a copy of
the notice of such Servicing Transfer Event provided by the Master Servicer to
the Special Servicer pursuant to this Section. No later than ten (10) Business
Days before the Master Servicer is required to deliver a copy of the related
Servicing File to the Special Servicer, it shall review the Servicing File and
request from the Trustee any material documents that it is aware are missing
from the Servicing File. If the related Sub-Servicer elects not to retain
Specially Serviced Loans on its computer systems, then such Sub-Servicer shall
return all Mortgage Files to the Master Servicer.
Upon determining that a Specially Serviced Loan has become a
Corrected Loan, the Special Servicer shall promptly give notice thereof to the
Master Servicer and to the Directing Certificateholder, the ES Controlling
Holder (if the ES Component Mortgage Loan is involved), the SB Controlling
Holder (if the SB Component Mortgage Loan is involved), the related CBA B Note
Holder (if the related CBA A/B Mortgage Loan is involved) or the Wellbridge
Controlling Holder and Wellbridge Companion Loan Noteholders (if the Wellbridge
A/B Mortgage Loan is involved), and return the related Servicing File to the
Master Servicer within five (5) Business Days and upon giving such notice and
returning such Servicing File, to the Master Servicer, the Special Servicer's
obligation to service such Loan, and the Special Servicer's right to receive the
Special Servicing Fee with respect to such Loan, shall terminate, and the
obligations of the Master Servicer to service and administer such Loan shall
resume.
Notwithstanding other provisions in this Agreement to the contrary,
the Master Servicer shall remain responsible for the accounting, data
collection, reporting and other basic Master Servicer administrative functions
with respect to the Specially Serviced Loans, provided that the Master Servicer
shall establish reasonable procedures as to the application of Special Servicer
receipts and tendered payments, and the Special Servicer shall have the
exclusive responsibility for and authority over all contacts (including
collection, which information shall be provided by the Master Servicer) with and
notices to Mortgagors and similar matters relating to each Specially Serviced
Loan and the related Mortgaged Property.
Also notwithstanding anything herein to the contrary, in connection
with the transfer to the Special Servicer of the servicing, subject to Section
2.03 of this Agreement, of a Cross-Collateralized Loan as a result of a
Servicing Transfer Event or the re-assumption of servicing responsibilities by
the Master Servicer with respect to any such Loan upon its becoming a Corrected
Loan, the Master Servicer and the Special Servicer shall each transfer to the
other, as and when applicable, the servicing of all other Cross-Collateralized
Loans constituting part of the same Cross-Collateralized Group; provided that no
Cross-Collateralized Loan may become a Corrected Loan at any time that a
continuing Servicing Transfer Event exists with respect to another
Cross-Collateralized Loan in the same Cross-Collateralized Group.
(b) In servicing any Specially Serviced Loans, the Special Servicer
shall provide to the Trustee the originals, of documents contemplated by the
definition of "Mortgage File" and generated while such Loan is a Specially
Serviced Loan, for inclusion in the related Mortgage File (with a copy of each
such original to the Master Servicer), and provide to the Master Servicer copies
of any additional related Loan information, including correspondence with the
related Mortgagor generated while such Loan is a Specially Serviced Loan.
(c) Notwithstanding anything in this Agreement to the contrary, in
the event that the Master Servicer and the Special Servicer are the same Person,
all notices, certificates, information, consents and documents required to be
given or delivered by the Master Servicer to the Special Servicer or vice versa
shall be deemed to be given or delivered, as the case may be, without the
necessity of any action on such Person's part.
(d) No later than forty-five (45) days after the date the servicing
of a Loan is transferred from the Master Servicer to the Special Servicer
pursuant to the terms of this Agreement, the Special Servicer shall deliver to
each Rating Agency, the Master Servicer, the Trustee and the Directing
Certificateholder, the ES Controlling Holder (if the ES Component Mortgage Loan
is involved), the SB Controlling Holder (if the SB Component Mortgage Loan is
involved) or the Wellbridge Controlling Holder and Wellbridge Companion Loan
Noteholders (if the Wellbridge A/B Mortgage Loan is involved) a report (the
"Asset Status Report") with respect to such Mortgage Loan and the related
Mortgaged Property. Such Asset Status Report shall set forth the following
information to the extent reasonably determinable:
(i) summary of the status of such Specially Serviced Loan and any
negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer (including without limitation by
reason of any Phase I Environmental Assessment and any additional
environmental testing contemplated by Section 3.09), consistent with the
Servicing Standard, that are applicable to the exercise of remedies set
forth herein and to the enforcement of any related guaranties or other
collateral for the related 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 Loan might be returned to performing status and returned to the
Master Servicer for regular servicing or otherwise realized upon;
(v) the Appraised Value of the Mortgaged Property together with the
assumptions used in the calculation thereof (which the Special Servicer
may satisfy by providing a copy of the last obtained Appraisal); and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standard.
If within ten (10) Business Days of receiving an Asset Status
Report, the Directing Certificateholder, the ES Controlling Holder (if the ES
Component Mortgage Loan is involved), the SB Controlling Holder (if the SB
Component Mortgage Loan is involved), or the Wellbridge Controlling Holder (if
the Wellbridge A/B Mortgage Loan is involved), does not disapprove such Asset
Status Report in writing, the Special Servicer shall implement the recommended
action as outlined in such Asset Status Report; provided, however, that the
Special Servicer may not take any action that is contrary to applicable law, the
Servicing Standard or the terms of the applicable Mortgage Loan documents. If
the Directing Certificateholder, the ES Controlling Holder (if the ES Component
Mortgage Loan is involved), the SB Controlling Holder (if the SB Component
Mortgage Loan is involved) or the Wellbridge Controlling Holder (if the
Wellbridge A/B Mortgage Loan is involved), disapproves such Asset Status Report,
the Special Servicer will revise such Asset Status Report and deliver to the
Directing Certificateholder, the ES Controlling Holder (if the ES Component
Mortgage Loan is involved), the SB Controlling Holder (if the SB Component
Mortgage Loan is involved), or the Wellbridge Controlling Holder (if the
Wellbridge A/B Mortgage Loan is involved) the Rating Agencies, the Trustee and
the Master Servicer a new Asset Status Report as soon as practicable, but no
later than thirty (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 earlier of (x) the delivery by the Directing Certificateholder, the ES
Controlling Holder, the SB Controlling Holder or the Wellbridge Controlling
Holder, as applicable, of an affirmative approval in writing of such revised
Asset Status Report, (y) the failure of Directing Certificateholder, the ES
Controlling Holder, the SB Controlling Holder or the Wellbridge Controlling
Holder, as applicable, to disapprove such revised Asset Status Report in writing
within ten (10) Business Days of its receipt thereof; or (z) the passage of
ninety (90) days from the date of preparation of the initial version of the
Asset Status Report. Following the earliest of such events, the Special Servicer
shall implement the recommended action as outlined in the most recent version of
such Asset Status Report (provided that the Special Servicer shall not take any
action that is contrary to applicable law or the terms of the applicable
Mortgage Loan documents). The Special Servicer may, from time to time, modify
any Asset Status Report it has previously delivered and implement the new action
in such revised report so long as such revised report has been prepared,
reviewed and either approved or not rejected as provided above. For the
avoidance of doubt, any action to be taken (or not taken) by the Special
Servicer with respect to an Asset Status Report must be in all respects
consistent with the Servicing Standard and applicable law.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Loan and take such actions consistent with
the Servicing Standard and the related Asset Status Report. The Special Servicer
shall not take any action inconsistent with the related Asset Status Report,
unless such action would be required in order to act in accordance with the
Servicing Standard.
(e) The Special Servicer or the Master Servicer, as applicable,
shall provide the Directing Certificateholder, the ES Controlling Holder (with
respect to the ES Component Mortgage Loan), the SB Controlling Holder (with
respect to the SB Component Mortgage Loan) and the Wellbridge Controlling Holder
and the Wellbridge Senior Companion Loan Noteholders (with respect to the
Wellbridge A/B Mortgage Loan) with not less than ten (10) Business Days' prior
notice (except as provided in Section 3.08(a) hereof) of any Special Action (as
described below) that the Special Servicer or the Master Servicer, as
applicable, proposes to take and, in the case of the Special Action described in
clause (vi) below, the Special Servicer shall also contemporaneously notify the
Master Servicer; provided, however, that if a shorter period of notice is
necessary in order to avoid the occurrence of an Adverse REMIC Event or a
violation of the third paragraph of this Section 3.21(e), then the required
period of notice shall be such shorter period.
The Directing Certificateholder (with respect to the Non-Partitioned
Loans and the Post CAP Loans), the ES Controlling Holder (with respect to the ES
Component Mortgage Loan so long as a Control Appraisal Period does not exist),
the SB Controlling Holder (with respect to the SB Component Mortgage Loan so
long as a Control Appraisal Period does not exist) and the Wellbridge
Controlling Holder (with respect to the Wellbridge A/B Mortgage Loan) shall be
entitled to advise the Special Servicer with respect to any Special Action, and
notwithstanding anything to the contrary contained herein, the Special Servicer
shall not take any Special Action if the Directing Certificateholder (with
respect to the Non-Partitioned Loans and the Post CAP Loans), the ES Controlling
Holder (with respect to the ES Component Mortgage Loan so long as a Control
Appraisal Period does not exist), the SB Controlling Holder (with respect to the
SB Component Mortgage Loan so long as a Control Appraisal Period does not exist)
and the Wellbridge Controlling Holder (with respect to the Wellbridge A/B
Mortgage Loan) has objected thereto by the close of business on the tenth
Business Day following its receipt of notice thereof, or if a shorter period was
necessitated in accordance with the preceding sentence, by the close of business
on the date on which such shorter period expires (it being understood that the
failure of the Directing Certificateholder, the ES Controlling Holder, the SB
Controlling Holder and the Wellbridge Controlling Holder as applicable, to
respond in the time frame set forth in the Approval Provisions shall be deemed
to constitute such party's approval of such action); provided, however, that (x)
the ability of the Directing Certificateholder, ES Controlling Holder, SB
Controlling Holder and the Wellbridge Controlling Holder, as applicable, to so
advise or object shall in all events be subject to Section 3.21(f) and shall not
violate the provisions of any Co-Lender Agreement (with respect to a CBA A/B
Mortgage Loan or the Wellbridge A/B Mortgage Loan) or the Wellbridge Mezzanine
Intercreditor Agreement (with respect to the Wellbridge A/B Mortgage Loan), (y)
the Master Servicer or the Special Servicer, as applicable, shall not follow any
such advice or objection that would result in a violation of this Agreement,
including Section 3.21(e), the Loan documents or applicable laws, otherwise
result in an Adverse REMIC Event or violate the provisions of any Co-Lender
Agreement (with respect to a CBA A/B Mortgage Loan or the Wellbridge A/B
Mortgage Loan) or the Wellbridge Mezzanine Intercreditor Agreement (with respect
to the Wellbridge A/B Mortgage Loan), and (z) if (a) the Directing
Certificateholder, the ES Controlling Holder, the SB Controlling Holder and the
Wellbridge Controlling Holder, as applicable, and (b) the Special Servicer or
Master Servicer, as applicable, together cannot agree upon a course of action
with respect to any Special Action within sixty (60) days of the occurrence of
the event to which such Special Action relates, then the Special Servicer or
Master Servicer, as applicable, shall implement its proposed course of action.
Subject to the foregoing, in connection with the implementation of any Special
Action or the extension of the maturity date of a Mortgage Loan, the Master
Servicer or Special Servicer shall comply with the Approval Provisions, as
applicable. For purposes hereof, "Special Action" means each of the following
actions:
(i) any foreclosure upon or comparable conversion (which may include
acquisitions of an REO Property) of the ownership of properties securing
such of the Specially Serviced Loans as come into and continue in default;
(ii) any modification or waiver of a Loan;
(iii) any proposed sale of a defaulted Loan or REO (other than in
connection with the termination of the Trust Fund or pursuant to Section
3.18);
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any acceptance of substitute or additional collateral for a Loan
unless required by the underlying loan documents and any release of a
material portion of the real estate collateral securing the Loan;
(vi) any waiver of a "due-on-sale" clause (except as set forth in
Section 3.08(a)) or "due-on-encumbrance" clause;
(vii) any acceptance of an assumption agreement releasing a borrower
from liability under a Loan; or
(viii) acceptance of a discounted payoff of a Loan.
(f) Notwithstanding anything contained in this Agreement to the
contrary, no objection or direction of the Directing Certificateholder, the ES
Controlling Holder, the SB Controlling Holder or the Wellbridge Controlling
Holder, as applicable, shall (A) require or cause the Master Servicer or the
Special Servicer, as applicable, to violate the terms of any Loan then serviced
by it, applicable law or any provision of this Agreement, including the Master
Servicer's obligation or the Special Servicer's obligation to act in accordance
with the Servicing Standard and to maintain the REMIC status of each of the
Component Mortgage Loan REMIC, REMIC I or REMIC II, or (B) result in the
imposition of a "prohibited transaction" or "prohibited contribution" tax under
the REMIC Provisions, or (C) expose the Master Servicer, the Special Servicer,
the Depositor, the Trust Fund, the Trustee, the Fiscal Agent or their officers,
directors, employees or agents to any claim, suit or liability, or (D)
materially expand the scope of the Special Servicer's or the Master Servicer's
responsibilities under this Agreement (the "Prohibited Actions"). The Master
Servicer or Special Servicer, as applicable, shall disregard any such direction
or objection.
The Directing Certificateholder, the ES Controlling Holder, the SB
Controlling Holder, a CBA B Note Holder or the Wellbridge Controlling Holder, as
applicable, will have no liability to the Certificateholders for any action
taken, or for refraining from the taking of any action, in good faith pursuant
to this Agreement, or for errors in judgment; provided, however, that the
Directing Certificateholder, the ES Controlling Holder, the SB Controlling
Holder, a CBA B Note Holder or the Wellbridge Controlling Holder, as applicable,
will not be protected against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in the performance of
duties or by reason of reckless disregard of obligations or duties. By its
acceptance of a Certificate, each Certificateholder confirms its understanding
that the Directing Certificateholder, the ES Controlling Holder, the SB
Controlling Holder, a CBA B Note Holder or the Wellbridge Controlling Holder, as
applicable, 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, the ES Controlling Holder, the SB Controlling Holder, a CBA B
Note Holder or the Wellbridge Controlling Holder, as applicable, may have
special relationships and interests that conflict with those of Holders of some
Classes of the Certificates, that the Directing Certificateholder, the ES
Controlling Holder, the SB Controlling Holder, a CBA B Note Holder or the
Wellbridge Controlling Holder, as applicable, may act solely in the interests of
the Holders of the Controlling Class, that none of the Directing
Certificateholder, the ES Controlling Holder, the SB Controlling Holder, a CBA B
Note Holder or the Wellbridge Controlling Holder, as applicable, has any duties
to the Holders of any Class of Certificates other than the Controlling Class,
that none of the Directing Certificateholder, the ES Controlling Holder, the SB
Controlling Holder, a CBA B Note Holder or the Wellbridge Controlling Holder, as
applicable, shall be deemed to have been negligent or reckless, or to have acted
in bad faith or engaged in willful misfeasance, by reason of its having acted
solely in the interests of the Holders of the Controlling Class, the ES
Controlling Holder, the SB Controlling Holder, a CBA B Note Holder or the
Wellbridge Controlling Holder, as applicable, that none of the Directing
Certificateholder, the ES Controlling Holder, the SB Controlling Holder, a CBA B
Note Holder or the Wellbridge Controlling Holder, as applicable, shall have any
liability whatsoever for having so acted, and no Certificateholder may take any
action whatsoever against the Directing Certificateholder, the ES Controlling
Holder, the SB Controlling Holder, a CBA B Note Holder or the Wellbridge
Controlling Holder, as applicable, or any director, officer, employee, agent or
principal thereof for having so acted.
Notwithstanding the foregoing, if an Asset Status Report pertains to
a CBA A/B Mortgage Loan and any action with respect to which the related CBA B
Noteholder is entitled to consent pursuant to Section 16 of the related CBA
Intercreditor Agreement, then, so long as the such CBA B Noteholder's right to
consent to such action has not expired in accordance with the terms of the
related CBA Intercreditor Agreement, the Special Servicer shall consult with the
such CBA B Noteholder and such CBA B Noteholder shall be entitled to exercise
the consent right set forth in such Section 16.
SECTION 3.22 Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer may each enter into
Sub-Servicing Agreements to provide for the performance by third parties of any
or all of its obligations hereunder, provided that, in each case, the
Sub-Servicing Agreement: (i) insofar as it affects the Trust, or if a Loan Pair
is involved the related Companion Loan Noteholders, is consistent with this
Agreement in all material respects; (ii) expressly or effectively provides that
if the Master Servicer or Special Servicer, as the case may be, shall for any
reason no longer act in such capacity hereunder (including, without limitation,
by reason of an Event of Default), any successor to the Master Servicer or the
Special Servicer, as the case may be, hereunder (including the Trustee if the
Trustee has become such successor pursuant to Section 7.02) may thereupon either
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Master Servicer or Special Servicer, as the
case may be, under such agreement or, subject to the provisions of Section
3.22(d), terminate such rights and obligations, in either case without payment
of any fee except as set forth in Section 3.22(d); (iii) in the case of a
Sub-Servicing Agreement entered into by the Master Servicer, expressly or
effectively provides that such agreement shall be suspended with respect to any
Loan serviced thereunder at the time such Loan becomes a Specially Serviced Loan
unless such Loan is then sub-serviced by Midland Loan Services, Inc. or its
permitted successors and assigns pursuant to such Sub-Servicing Agreement (but
only until such time as such Loan becomes a Corrected Loan); (iv) in the case of
a Sub-Servicing Agreement entered into by the Special Servicer, relates only to
Specially Serviced Loans or REO Properties and expressly or effectively provides
that such agreement shall terminate with respect to any such Loan that becomes a
Corrected Loan; (v) in the case of a Sub-Servicing Agreement entered into by the
Master Servicer, provides that the related Sub-Servicer shall comply with all
reasonable requests for additional information made by the Master Servicer
(provided, however, that the related Sub-Servicer shall not be required to
furnish the same information to the Master Servicer more than once) and,
further, provides that the failure of the related Sub-Servicer to furnish the
Master Servicer on a timely basis with any required reports, statements or other
information, including without limitation, the reports referred to in Section
3.12(a), either (A) shall permit the Master Servicer to make necessary inquiries
of the related borrower directly or (B) shall (subject to a cure period not to
exceed sixty (60) days) constitute an event of default thereunder for which the
Master Servicer may terminate such Sub-Servicer without payment of any
termination fee (it being understood that notwithstanding anything to the
contrary in this clause (v), the obligations of a Sub-Servicer in respect of the
second sentence of Section 3.12(b) hereof may be limited to the provision of
reports as agreed between the Master Servicer and such Sub-Servicer and response
to reasonable inquiries from the Master Servicer with respect thereto); (vi)
subject to Section 3.08, does not authorize any Sub-Servicer to approve a
modification or assumption of any Loan without the approval of the Master
Servicer, in the case of Performing Loans or of the Special Servicer, in the
case of Specially Serviced Loans or authorizes the Sub-Servicer to foreclose any
Loan without the approval of the Special Servicer; (vii) imposes no liability
whatsoever on the Trustee, the Certificateholders or in the case of a Loan Pair,
the related Companion Loan Noteholder with respect to anything contained
therein; and (viii) provides that the Master Servicer and the Special Servicer
each shall pay the fees of any Sub-Servicer retained by it in accordance with
the respective Sub-Servicing Agreement and, in any event, from its own funds.
References in this Agreement to actions taken or to be taken by the Master
Servicer or the Special Servicer, as the case may be, include actions taken or
to be taken by a Sub-Servicer on behalf of the Master Servicer or the Special
Servicer, as the case may be; and, in connection therewith, all amounts advanced
by any Sub-Servicer to satisfy the obligations of the Master Servicer hereunder
to make Advances shall be deemed to have been advanced by the Master Servicer
out of its own funds and, accordingly, 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 Master Servicer, and, for so long as they are outstanding,
such Advances shall accrue interest in accordance with Section 3.11(g) and/or
Section 4.03(d), such interest to be allocable between the Master Servicer and
such Sub-Servicer as they may agree. For purposes of this Agreement, the Master
Servicer and the Special Servicer each shall be deemed to have received any
payment when a Sub-Servicer retained by it receives such payment. The Master
Servicer and the Special Servicer each shall notify the other such party, the
Trustee or in the case of a Loan Pair, the related Companion Loan Noteholder and
the Depositor in writing promptly of the appointment by it of any Sub-Servicer,
and 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.
(b) Each Sub-Servicer actually performing servicing functions (i)
shall be authorized to transact business in the state or states in which the
Mortgaged Properties for the Loans it is to service are situated, if and to the
extent required by applicable law, and (ii) to the extent sub-servicing
multifamily loans, shall be an approved conventional seller/servicer of
multifamily mortgage loans for Xxxxxxx Mac or Xxxxxx Mae or a HUD-Approved
Servicer.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders, shall (at no expense to the Trustee, the
Certificateholders or the Trust or in the case of a Loan Pair, the related
Companion Loan Noteholder) each monitor the performance and enforce the
obligations of its Sub-Servicers under the related Sub-Servicing Agreements.
Such enforcement, including, without limitation, the legal prosecution of
claims, termination of Sub-Servicing Agreements in accordance with their
respective terms and the terms of this Agreement, and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time as the Master Servicer or the Special Servicer, as the case may
be, in its reasonable business judgment, would require were it the owner of the
Loans. Promptly upon becoming aware of a default under any Sub-Servicing
Agreement to which it is a party, the Master Servicer or the Special Servicer,
as the case may be, shall notify each of the other parties hereto and the
Trustee, and then the Trustee shall provide a copy of such notice to the
Directing Certificateholder, the ES Controlling Holder (if the ES Component
Mortgage Loan is involved), the SB Controlling Holder (if the SB Component
Mortgage Loan is involved), the related CBA B Note Holder (if the related CBA
A/B Mortgage Loan is involved) or the Wellbridge Controlling Holder (if the
Wellbridge A/B Mortgage Loan is involved), and, in accordance with Section
8.12(b), shall, upon request, provide a copy of such notice to each Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O and Class P Certificateholder of any such default.
(d) With respect to the Sub-Servicing Agreements in effect as of the
Closing Date that are listed on Schedule II, the initial Master Servicer hereby
agrees that it shall not, in its capacity as Master Servicer, terminate any
Sub-Servicer thereunder without cause. In the event of the resignation, removal
or other termination of the initial Master Servicer (or any successor Master
Servicer) hereunder for any reason, the successor to the initial Master Servicer
(or to such successor Master Servicer) shall elect, with respect to any
Sub-Servicing Agreement existing at the time of such termination (i) to assume
the rights and obligations of the predecessor Master Servicer under such
Sub-Servicing Agreement and continue the sub-servicing arrangements thereunder
on the same terms (including without limitation the obligation to pay the same
sub-servicing fee), (ii) to enter into a new Sub-Servicing Agreement with such
Sub-Servicer and on such terms as the new Master Servicer and such Sub-Servicer
shall mutually agree (it being understood that such Sub-Servicer is under no
obligation to accept any such new Sub-Servicing Agreement or to enter into or
continue negotiations with the new Master Servicer) or (iii) to terminate such
Sub-Servicing Agreement without cause, provided that no such Sub-Servicer may be
terminated without cause unless it receives Sub-Servicer Termination
Compensation, and provided, further, that any such successor Master Servicer
must assume that portion of the Sub-Servicing Agreement listed on Schedule II
relating to Mortgaged Loans sub-serviced by Midland Loan Services, Inc. pursuant
to (i) above if: (1) the actions of Midland Loan Services, Inc. were not the
cause of the termination of the Master Servicer for cause and (2) Midland Loan
Services, Inc. is otherwise then eligible pursuant to the Sub-Servicing
Agreement to act as a Sub-Servicer. For purposes hereof, a Sub-Servicer shall
receive "Sub-Servicer Termination Compensation" if any successor Master Servicer
elects to terminate such Sub-Servicer without cause, in which case either of the
following shall occur: (i) such successor Master Servicer shall pay to such
Sub-Servicer a fee (a "Sub-Servicer Termination Fee") in an amount equal to the
average of three termination fees quoted by three Persons in the business of
primary-servicing commercial mortgage loans comparable to the Mortgage Loans
(not including the Master Servicer or any Person that is then a Sub-Servicer),
which shall be selected by the Master Servicer in good faith and the names of
which shall be identified by the Master Servicer to the Sub-Servicer or (ii)
such successor Master Servicer shall agree to pay such Sub-Servicer an
interest-only strip (the "Termination Strip") out of its related Master
Servicing Fees for each Loan serviced by such Sub-Servicer at the time of such
Sub-Servicer's termination (such strip to be calculated in the same manner as
the related Master Servicing Fees, but at a per annum rate equal to the
applicable Primary Servicing Fee Rate minus 0.04%). Any subsequent successor
Master Servicer shall be obligated to pay any such Termination Strip agreed to
by a predecessor Master Servicer. Nothing in the foregoing provisions of this
Section 3.22(d) shall limit the ability of the initial or a successor Master
Servicer to terminate a Sub-Servicer at any time for cause; provided, however,
that the parties hereto understand and agree that the refusal or failure of a
Sub-Servicer to enter into or continue negotiations with a successor Master
Servicer concerning a new Sub-Servicing Agreement shall not constitute cause for
termination. It shall be the corporate obligation (not reimbursable by the Trust
or any of the other parties to this Agreement) of the Person, who as successor
Master Servicer, terminates any Sub-Servicer without cause, and of its
successors and assigns in such capacity (to the extent contemplated by the
second preceding sentence), to pay Sub-Servicer Termination Compensation to such
terminated Sub-Servicer. References in this Section 3.22(d) to Master Servicer,
successor Master Servicer or subsequent successor Master Servicer shall mean the
Trustee, if it is then Master Servicer, successor Master Servicer or subsequent
Master Servicer pursuant to the operation of Section 7.02.
(e) In the event the Trustee or its designee assumes the rights and
obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement, the Master Servicer or the Special Servicer, as the
case may be, at its expense shall, upon request of the Trustee, deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Loans then being serviced thereunder and an accounting of
amounts collected and held on behalf of it thereunder, and otherwise use its
best efforts to effect the orderly and efficient transfer of the Sub-Servicing
Agreement to the assuming party.
(f) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall each 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 Loans for which it is responsible.
(g) Notwithstanding anything to the contrary set forth herein, any
account established and maintained by a Sub-Servicer pursuant to a Sub-Servicing
Agreement with the Master Servicer shall for all purposes under this Agreement
be deemed to be an account established and maintained by the Master Servicer.
(h) Each Sub-Servicer pursuant to its related Sub-Servicing
Agreement shall retain the original of any letter of credit that has been issued
in connection with any Loan that it sub-services pursuant to such agreement on
behalf of the Master Servicer for the benefit of the Certificateholders provided
that it shall provide a copy of such letter of credit to the Master Servicer.
SECTION 3.23 Designation of the Special Servicer by the Majority
Certificateholder of the Controlling Class.
The Majority Certificateholder of the Controlling Class may at any
time and from time to time terminate (with or without cause) and replace any
existing Special Servicer or any Special Servicer that has resigned or otherwise
ceased to serve as Special Servicer. Such Majority Certificateholder shall so
designate a Person to so serve by the delivery to the Trustee of a written
notice stating such designation, subject to the approval of the Trustee, which
approval shall not be unreasonably withheld. The Trustee shall, promptly after
receiving any such notice, so notify the Rating Agencies. If the Trustee
approves the designated Person (based upon the servicing qualifications and
financial condition of such designated Person) as a replacement Special
Servicer, which approval shall not be unreasonably withheld, the designated
Person shall become the Special Servicer as of the date the Trustee shall have
received: (i) written confirmation from each Rating Agency stating that if the
designated Person were to serve as Special Servicer hereunder, none of the
then-current ratings assigned by such Rating Agency to the respective Classes of
the Certificates would be downgraded, qualified (if applicable) or withdrawn as
a result thereof; (ii) a written acceptance of all obligations of the Special
Servicer under this Agreement, executed by the designated Person; and (iii) an
Opinion of Counsel (at the expense of the Person designated to become the
Special Servicer) to the effect that the designation of such Person to serve as
Special Servicer is in compliance with this Section 3.23, that upon the
execution and delivery of the written acceptance referred to in the immediately
preceding clause (ii), the designated Person shall be bound by the terms of this
Agreement and that this Agreement shall be enforceable against the designated
Person in accordance with its terms. The existing Special Servicer shall be
deemed to have resigned simultaneously with such designated Person's becoming
the Special Servicer hereunder; provided, however, that (i) the terminated or
resigned, as applicable, Special Servicer shall continue to be entitled to
receive all amounts accrued or owing to it under this Agreement on or prior to
the effective date of such resignation, whether in respect of Servicing Advances
or otherwise, (ii) it shall be entitled to certain Workout Fees thereafter
received to the extent permitted by Section 3.11(c), and (iii) it and its
directors, officers, employees and agents shall continue to be entitled to the
benefits of Section 6.03, notwithstanding any such termination or resignation.
Such terminated Special Servicer shall cooperate with the Trustee and the
replacement Special Servicer in effecting the termination of its
responsibilities and rights hereunder, including, without limitation, the
transfer within two (2) Business Days to the replacement Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the terminated Special Servicer to the REO Account or
delivered to the Master Servicer or that are thereafter received by the
terminated Special Servicer with respect to Specially Serviced Loans and REO
Properties. The Majority Certificateholder of the Controlling Class shall be
responsible for paying any costs associated with such replacement, including the
reasonable costs of any servicing transfer.
SECTION 3.24 Confidentiality.
Notwithstanding any terms to the contrary in Section 3.19(a), the
Master Servicer and the Special Servicer will use reasonable efforts to keep
confidential and not disclose to any Person other than each other, the
Depositor, the Trustee, the Controlling Class Certificateholder, the
Sub-Servicer (with respect to any Loans it is sub-servicing), a Borrower (with
respect to the related Mortgage Loan), any Certificateholder, any Companion Loan
Noteholder and the Rating Agencies, any information which it obtains in its
capacity as Master Servicer or Special Servicer with respect to the Loans or any
related Mortgagor including, without limitation, credit information with respect
to any such Mortgagor (collectively, "Confidential Information"), except (i) any
officers, directors and employees of the Master Servicer or Special Servicer (or
any officers, directors and employees of any Affiliates of the Master Servicer
or Special Servicer); (ii) auditors of the Master Servicer or the Special
Servicer and any agents, financial or tax advisors, attorneys, accountants and
professional consultants retained by the Master Servicer or the Special Servicer
in connection with the transactions contemplated by this Agreement which have
been informed of the confidential nature of the information provided to them;
(iii) the Mortgage Loan Seller with respect to information relating to the Loans
transferred into the Trust by the Mortgage Loan Seller; (iv) a potential
purchaser of servicing rights hereunder which has agreed to keep such
information confidential; (v) to the extent the Master Servicer or Special
Servicer deems such disclosure to be reasonably necessary in carrying out its
duties pursuant to this Agreement or any Sub-Servicing Agreement; (vi) to the
extent such information is publicly available or otherwise available from
sources unrelated to this transaction; (vii) to the extent such disclosure is
required by law or court order or is demanded pursuant to a subpoena; (viii) to
the extent such information is required to be delivered to third parties
(including, without limitation, property inspectors, tax service companies,
insurance carriers, and data systems vendors) in connection with the performance
of the Master Servicer's or the Special Servicer's obligations hereunder; or
(ix) to the extent the Depositor consents in writing to such disclosure. For
purposes of this paragraph, the terms "Master Servicer" and "Special Servicer"
shall mean the divisions or departments of such corporate entities involved in
providing services hereunder and their respective officers, directors and
employees. Notwithstanding anything in this Section 3.24 to the contrary, the
Master Servicer, and any Sub-Servicer with the prior written permission of the
Master Servicer, may disseminate pool-wide and general statistical information
relating to the Mortgage Loans and the Mortgage Loan portfolio being serviced
(as to any Sub-Servicer, limited to its own sub-serviced portfolio), so long as
no Mortgagors are identified.
SECTION 3.25 No Solicitation of Prepayments.
Neither the Master Servicer nor the Special Servicer shall solicit
or permit any Affiliate to solicit, either directly or indirectly, prepayments
from any Mortgagors under the Loans; provided, however, that the foregoing
restriction shall not be interpreted to prohibit such solicitation by a division
or department of, or an Affiliate of, the Master Servicer or the Special
Servicer, or otherwise by a division or department of, or an Affiliate of, the
Master Servicer or the Special Servicer if such solicitation occurs incidentally
in the normal course of business and such solicitation is not conducted, in
whole or in part, (i) by an individual engaged at any time in activities
relating to the servicing of Loans or (ii) based upon or otherwise with the
benefit of information obtained by or through the Master Servicer or Special
Servicer or from documentation relating to the Certificates, including without
limitation any listing of the Loans or related Mortgagors or Mortgaged
Properties. Each Sub-Servicing Agreement shall contain a provision identical to
the foregoing with respect to the related Sub-Servicer.
SECTION 3.26 Certain Matters with Respect to Mortgage Loans
Permitting Defeasance, Franchise Mortgage Loans and
Certain Mortgage Loans Permitting Additional Debt.
(a) With respect to each Mortgage Loan as to which the Master
Servicer shall have the discretion pursuant to the terms thereof to require the
related Mortgagor to post defeasance collateral consisting of U.S. government
securities, within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i), in an amount sufficient to make all scheduled payments under
the Mortgage Note when due in lieu of making a permitted prepayment, the Master
Servicer shall so require defeasance, provided such defeasance complies with
Treasury Regulations Section 1.860G-2(a)(8). The Master Servicer shall accept as
defeasance collateral any "government security," within the meaning of Treasury
Regulations Section 1.860G-(2)(a)(8)(i), notwithstanding any more restrictive
requirements in the Mortgage.
(b) The Master Servicer shall require, as a condition to the
exercise by the Mortgagor of any defeasance rights, that the Mortgagor pay any
costs and expenses associated with such exercise.
(c) To the extent that the terms of a Mortgage permit defeasance,
the Master Servicer shall require the related Mortgagor to deliver a
certification from the Mortgagor's independent certified public accountants as
to the sufficiency of the related U.S. government securities, and provide a copy
of such certification to each Rating Agency and the Directing Certificateholder.
(d) To the extent that the terms of a Mortgage permit defeasance,
the Master Servicer shall not approve the form and substance of any required
legal documents in connection with such defeasance unless (i) to the extent that
the outstanding principal balance of a Mortgage Loan is $20,000,000 or more, or
constitutes 5% or more of the then current principal balance of the Mortgage
Pool or such Mortgage Loan comprises at the time one of the ten (10) largest
Mortgage Loans (by outstanding principal balance) in the Mortgage Pool, S&P and
Fitch each shall have confirmed to it in writing that such defeasance will not
result in the withdrawal, downgrade or qualification (if applicable) of the
rating of any Class of Certificates, (ii) it shall have obtained an Opinion of
Counsel that the defeasance complies with applicable REMIC Provisions; and,
(iii) it shall have obtained an accountant's certification that the defeasance
collateral is sufficient to make payments under the related Mortgage Loan for
the remainder of its term. In the case of the defeasance of any Mortgage Loan
that does not require a Rating Agency confirmation pursuant to the immediately
preceding clause (i), the Master Servicer must provide to S&P after completion
of the defeasance a certification substantially in the form of Exhibit J hereto.
(e) With respect to each Loan that provides for defeasance, to the
extent permitted by the terms of such Loan, or if so requested by the Rating
Agencies, the Master Servicer shall use its best efforts to have the related
Mortgagor (i) designate a Single Purpose Entity (if the borrower no longer
complies) to assume the Loan and own the collateral and (ii) provide an opinion
from counsel that the Trustee has a perfected security interest in the new
collateral.
(f) To the extent that (i) the outstanding principal balance of a
Mortgage Loan is $20,000,000 or more or constitutes 2% or more of the then
current principal balance of the Mortgage Pool, and (ii) the terms of the
related Mortgage Loan documents require the consent of the lender in order for
the related Mortgagor to change the manager of the related Mortgaged Property,
the Master Servicer shall not so consent to such a change in management unless
it has received (a) the prior consent of the Special Servicer, which will be
deemed given if such party has not responded within ten (10) Business Days (as
such period may be extended herein if the consent of the Directing
Certificateholder, the ES Controlling Holder, the SB Controlling Holder or the
Wellbridge Controlling Holder is required hereunder) following delivery of
request for consent together with any information reasonably necessary to make a
decision and (b) a written confirmation from each Rating Agency such a change in
management, if effected, would not result in the withdrawal, downgrade or
qualification (if applicable) of the rating of any Class of Certificate.
(g) Notwithstanding anything contained in this Section 3.26 the
Master Servicer will disregard any objection of the Directing Certificateholder,
the ES Controlling Holder, the SB Controlling Holder or the Wellbridge
Controlling Holder, as applicable, which would result in a Prohibited Action.
SECTION 3.27 Application of Default Charges.
(a) Any and all Default Charges that are actually received by or on
behalf of the Trust with respect to the Mortgage Pool, shall be applied for the
following purposes and in the following order, in each case to the extent of the
remaining portion of such Default Charges:
first, to pay to the Fiscal Agent, the Trustee, the Master Servicer
or the Special Servicer, in that order, any Advance Interest due and owing
to such party on outstanding Advances made thereby with respect to any
Mortgage Loan or REO Loan in the Mortgage Pool;
second, to reimburse the Trust for any Advance Interest paid to the
Fiscal Agent, the Trustee, the Master Servicer or the Special Servicer
since the Closing Date with respect to any Mortgage Loan or REO Loan in
the Mortgage Pool during the 12-month period preceding the receipt of such
Default Charges, which Advance Interest was paid from a source other than
Default Charges received on the Mortgage Pool;
third, to pay the Special Servicer for Servicing Advances made for
the cost of an inspection made on a Specially Serviced Loan;
fourth, to reimburse the Trust for any other Additional Trust Fund
Expenses incurred with respect to any Mortgage Loan or REO Loan in the
Mortgage Pool during the 12-month period prior to the receipt of such
Default Charges, which expense was previously paid from a source other
than Default Charges received on the Mortgage Pool; and
fifth, to pay any remaining portion of such Default Charges as
Additional Master Servicing Compensation to the Master Servicer, if such
Default Charges were collected with respect to a Performing Loan, and
otherwise to pay any remaining portion of such Default Charges as
Additional Special Servicing Compensation to the Special Servicer.
(b) Default Charges applied to reimburse the Trust pursuant to
either clause second or clause fourth of Section 3.27(a) is intended to be
available for distribution on the Certificates pursuant to Section 4.01(b),
subject to application pursuant to Section 3.05(a), Section 3.05(b), Section
3.05(c) or Section 3.05(f) for any items payable out of general collections on
the Mortgage Pool. Default Charges applied to reimburse the Trust pursuant to
either clause second or clause fourth of Section 3.27(a) shall be deemed to
offset payments of Advance Interest or other Additional Trust Fund Expenses
(depending on which clause is applicable) in the chronological order in which
they were made or incurred (whereupon such Advance Interest or other Additional
Trust Fund Expenses (depending on which clause is applicable) shall thereafter
be deemed to have been paid out of Default Charges).
(c) Any and all Default Charges that are actually collected with
respect to any Companion Loan or any successor REO Loan with respect thereto
during any Collection Period (as allocable thereto pursuant to the related loan
agreement), shall be applied for the following purposes and in the following
order, in each case to the extent of the remaining portion of such Default
Charges and net of any portion of such Default Charges, if any, that are
required to be paid to any Companion Loan Noteholder under any Co-Lender
Agreement:
First, to pay to the Fiscal Agent, the Trustee, the Master Servicer
or the Special Servicer, in that order, any interest due and owing to such
party on any outstanding Advances made thereby with respect to any
Mortgage Loan or REO Loan in such Loan Pair or the related REO Mortgaged
Property and reimbursed in the related Collection Period (to be applied
with respect to any particular party in such manner that the interest that
accrued first and has been outstanding the longest shall be paid first);
and
Second, to pay any remaining portion of such Default Charges (such
remaining portion, "Net Default Charges") as Additional Master Servicing
Compensation to the Master Servicer, to the extent received, if they were
accrued with respect to such Companion Loan during a period that it was a
Performing Loan, or as Additional Special Servicing Compensation to the
Special Servicer, to the extent received, if they were accrued with
respect to such Companion Loan during a period that it was a Specially
Serviced Loan or an REO Loan, in each case pursuant to Section 3.11.
SECTION 3.28 Matters Regarding the Loan Pairs.
(a) The Companion Loan Noteholders will not have any liability to
the Trust or the Certificateholders for any action taken, or for refraining from
the taking of any action, in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that the Companion Loan Noteholders will
not be protected against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in the performance of
duties or by reason of negligent disregard of duties.
(b) The Companion Loan Noteholders shall be entitled to receive,
upon request, a copy of any notice or report required to be delivered (upon
request or otherwise) to the Trustee with respect to the related A/B Mortgage
Loan or any related REO Property by any other party hereto. Any such other party
shall be permitted to require payment of a sum sufficient to cover the
reasonable costs and expenses of providing such copies.
(c) Notwithstanding any provision in this Agreement to the contrary,
with respect to an CBA A/B Mortgage Loan, so long as the related CBA B
Noteholder shall be entitled to exercise the rights set forth in Section 16(a)
of related CBA Co-Lender Agreement, subject to any conditions, restrictions or
other provisions described in or incorporated by reference into such section,
the Master Servicer or Special Servicer, as applicable, shall comply with the
provisions therein contained in connection with taking or refraining from taking
the actions described therein; provided, however, that no advice, direction or
objection from or by a CBA B Noteholder may (and the Master Servicer or Special
Servicer, as applicable, shall ignore and act without regard to any such advice,
direction or objection that the Master Servicer or Special Servicer, as
applicable, has determined, in its reasonable, good faith judgment, would)
require or cause the Master Servicer or Special Servicer, as applicable, to
violate any provision of this Agreement (including the Master Servicer's or the
Special Servicer's, as applicable, obligation to act in accordance with the
Servicing Standard), or the related Loan documents or the REMIC Provisions.
(d) If, pursuant to Section 2.03, Section 3.18 and Section 9.01, the
Mortgage Loan included in a Loan Pair is purchased or repurchased from the Trust
Fund, the purchaser thereof shall be bound by the terms of the related Co-Lender
Agreement and shall assume the rights and obligations of the "Note A-1 Holder,"
or "Lead Lender," as the case may be, under the related Co-Lender Agreement. All
portions of the related Mortgage File and other documents pertaining to such
Mortgage Loan shall be endorsed or assigned to the extent necessary or
appropriate to the purchaser of such Mortgage Loan in its capacity as "Note A-1
Holder" (as a result of such purchase or repurchase), under the related
Co-Lender Agreement in the manner contemplated under such agreement, which such
purchaser shall be deemed to acknowledge. Thereafter, such Mortgage File shall
be held by the Note A-1 Holder or a custodian appointed thereby for the benefit
of the "Note A-1 Holder," or "Lead Lender," as the case may be, and the other
Lenders or "Co-Lender," as the case may be, as their interests appear under the
related Co-Lender Agreement. If the related Servicing File is not already in the
possession of such party, it shall be delivered to the master servicer or
special servicer, as the case may be, under the separate servicing agreement for
the Loan Pair.
SECTION 3.29 Right to Appoint Operating Advisor; Authority of
Operating Advisor.
(a) Each Majority Certificateholder of the ES Controlling Class (the
"ES Controlling Class Holder"), the SB Controlling Class (the "SB Controlling
Class Holder") and the WB Controlling Class (the "WB Controlling Class Holder"
and, together with the ES Controlling Class Holder and the SB Controlling Class
Holder, the "Loan Specific Controlling Class Holders"), shall be permitted to
appoint an "Operating Advisor" with respect to the related Loan. An Operating
Advisor may be the related Controlling Holder or any holder of the controlling
interest in the Controlling Class, any Certificateholder, or an unrelated third
party for such Mortgage Loan, with respect to any action which is to be taken
with respect to the ES Component Mortgage, the SB Component Mortgage Loan or the
Wellbridge A/B Mortgage Loan, as applicable, and requires the related Loan
Specific Class Holder's consent in its capacity as a Controlling Holder. The
party entitled to appoint an Operating Advisor shall have the right in its sole
discretion at any time and from time to time to remove and replace such
Operating Advisor for the related Loans. No such Operating Advisor shall owe any
fiduciary duty or other duty to any other Person (other than the related Loan
Specific Controlling Class Holder). The Trustee shall not be required to
recognize any Person as constituting the Loan Specific Controlling Class Holder
until such Person provides the Trustee with evidence of such status (consisting
of copies of transfer documents or other instruments) as the Loan Specific
Controlling Class Holder, an address, e-mail 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). The Trustee shall not be
required to recognize any Person as an Operating Advisor until the Party
entitled to appoint such Operating Advisor has notified the Trustee of such
appointment and the Operating Advisor provides the Trustee with written
confirmation of its acceptance of such appointment, an address and telecopy
number for the delivery of notices and other correspondence and a list of
officers or employees of such person with whom the parties to this Agreement may
deal (including their names, titles, work addresses and telecopy numbers). The
Trustee shall promptly deliver such information to the Master Servicer and the
Special Servicer. Notwithstanding any other provision of this Agreement to the
contrary, the Master Servicer and the Special Servicer shall not be required to
recognize any person as the Wellbridge Controlling Holder, the Majority
Certificateholder of the Controlling Class, the Directing Certificateholder, a
Loan Specific Controlling Class Holder or an Operating Advisor until they
receive such information from the Trustee and shall not be required to provide
any notices or seek any approvals, consents or direction from such party if such
party has not been designated and identified to the Master Servicer or the
Special Servicer, as applicable, as provided herein. In addition the Master
Servicer and/or the Special Servicer shall have no affirmative duty to ascertain
the existence of any Operating Advisor. The Master Servicer or Special Servicer
may from time to time request that the Trustee provide a list identifying
Operating Advisors with respect to each Loan and the Trustee shall promptly
provide such list. The Master Servicer and the Special Servicer shall be
entitled to conclusively rely on such list.
(b) The related Operating Advisor will be permitted to exercise all
of the rights of the related Loan Specific Controlling Class Holder except that
no Operating Advisor shall have any purchase option rights under Section 3.18(l)
or Section 3.18(m) with respect to the related Mortgage Loan. Any reference in
this Agreement, other than in Section 3.18(l) or Section 3.18(m), to any action
to be taken by the each Loan Specific Controlling Class Holder in its capacity
as a Controlling Holder will mean such Controlling Holder acting through its
related Operating Advisor if one has so been appointed.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
SECTION 4.01 Distributions.
(a) (i) On each Distribution Date, amounts held in the REMIC I
Distribution Account shall be withdrawn or deemed to be withdrawn (to the extent
of the Available Distribution Amount, the "REMIC I Distribution Amount") in the
case of all Classes of REMIC I Regular Interests and distributed or deemed to be
distributed on the REMIC I Regular Interests as set forth in Section 4.01(a)(ii)
and distributed on the Class R-I Certificates as set forth in Section
4.01(a)(iii). Thereafter, until distributed to the Certificateholders, such
amounts shall be considered to be held in the REMIC II Distribution Account.
(ii) Principal and interest amounts, reimbursement of Realized
Losses and Additional Trust Fund Expenses and timing of distributions on
each REMIC I Regular Interest will be identical to such amounts,
reimbursements and timing on the related Corresponding Certificates (in
the case of distributions of principal or reimbursement of Realized Losses
and Additional Trust Fund Expenses on (i) the Class A-1 Certificates,
first to the REMIC I Regular Interest LA-1-1, second to the REMIC I
Regular Interest LA-1-2 and REMIC I Regular Interest LA-1-3, pro rata,
third to the REMIC I Regular Interest LA-1-4 and REMIC I Regular Interest
LA-1-5, pro rata, fourth to the REMIC I Regular Interest LA-1-6 and REMIC
I Regular Interest LA-1-7, pro rata, fifth to the REMIC I Regular Interest
LA-1-8 and REMIC I Regular Interest LA-1-9, pro rata, and then to the
REMIC I Regular Interest LA-1-10 and REMIC I Regular Interest LA-1-11, pro
rata, in each case, until reduced to zero, (ii) the Class A-2
Certificates, first to the REMIC I Regular Interest LA-2-1 and REMIC I
Regular Interest LA-2-2, pro rata, and then to the REMIC I Regular
Interest LA-2-3 and REMIC I Regular Interest LA-2-4, pro rata, in each
case, until reduced to zero, (iii) the Class B Certificates to the REMIC I
Regular Interest LB-1 and REMIC I Regular Interest LB-2, pro rata, until
reduced to zero, (iv) the Class C Certificates, to the REMIC I Regular
Interest LC-1 and REMIC I Regular Interest LC-2, pro rata, until reduced
to zero, (v) the Class D Certificates, to the REMIC I Regular Interest
LD-1 and REMIC I Regular Interest LD-2, pro rata, until reduced to zero,
(vi) the Class E Certificates, to the REMIC I Regular Interest LE-1 and
REMIC I Regular Interest LE-2, pro rata, until reduced to zero, (vii) the
Class F Certificates, to the REMIC I Regular Interest LF-1 and the REMIC I
Regular Interest LF-2, pro rata, until reduced to zero, (viii) the Class G
Certificates, first to the REMIC I Regular Interest LG-1 and REMIC I
Regular Interest LG-2, pro rata, and then to the REMIC I Regular Interest
LG-3 and REMIC I Regular Interest LG-4, pro rata, in each case, until
reduced to zero, (ix) the Class H Certificates, first to the REMIC I
Regular Interest LH-1 and the REMIC I Regular Interest LH-2, pro rata, and
then to the REMIC Regular Interest LH-3 and REMIC I Regular Interest LH-4,
pro rata, in each case, until reduced to zero, (x) the Class J
Certificates, first to the REMIC I Regular Interest LJ-1 and REMIC I
Regular Interest LJ-2, pro rata, and then to the REMIC I Regular Interest
LJ-3 and REMIC I Regular Interest LJ-4, pro rata, in each case, until
reduced to zero, (xi) the Class K Certificates, first to the REMIC I
Regular Interest LK-1 and REMIC I Regular Interest LK-2, pro rata, and
then to the REMIC I Regular Interest LK-3 and REMIC I Regular Interest
LK-4, pro rata, in each case, until reduced to zero and (xii) the Class L
Certificates, to the REMIC I Regular Interest LL-1 and REMIC I Regular
Interest LL-2, pro rata, until reduced to zero) except that, solely for
this purpose, all calculations of interest with respect to the
Corresponding REMIC I Regular Interests shall be made as though the Class
A-1, Class A-2, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O and Class P
Certificate Pass-Through Rates were equal to the Weighted Average Adjusted
Net Mortgage Rate and as though the Class XC Notional Amount, the Class
XP-1 Notional Amount and Class XP-2 Notional Amount were zero at all times
and such that the amounts and timing of interest distributions on each
Corresponding REMIC I Regular Interest represent the aggregate of the
corresponding amounts on each Class of Corresponding Certificates (or
portion thereof) and its related Component or Components of the Class XC,
Class XP-1 and Class XP-2 Certificates; provided that (A) interest shall
be deemed distributed on such REMIC I Regular Interest only in the same
priority and to the extent actually distributable on such related Class of
Certificates or related Component and (B) interest distributable on a
Class of Class X Certificates shall be distributable pro rata among the
related Components.
(iii) Any amount that remains in the REMIC I Distribution Account on
each Distribution Date after distribution of the REMIC I Distribution
Amount and Prepayment Premiums allocable to the REMIC I Regular Interests
pursuant to Section 4.01(c)(iv) shall be distributed to the Holders of the
Class R-I Certificates (but only to the extent of the Available
Distribution Amount for such Distribution Date remaining in the REMIC I
Distribution Account, if any).
(b) On each Distribution Date, to the extent of the Available
Distribution Amount and the Class WB Available Distribution Amount for such
Distribution Date, the Trustee shall transfer or be deemed to transfer the REMIC
I Distribution Amount from the REMIC I Distribution Account to the REMIC II
Distribution Account in the amounts set forth in Section 4.01(a)(ii) with
respect to each Class of REMIC I Regular Interest, and immediately thereafter,
shall make distributions thereof from the REMIC II Distribution Account to the
Class WB Certificates as set forth in Section 4.01(k) and to the REMIC II
Regular Certificates in the order of priority set forth in clauses (i) through
(xlix) below, satisfying in full, to the extent required and possible, each
priority before making any distribution with respect to any succeeding priority.
(i) to distributions of interest to Holders of the Class A-1
Certificates, the Class A-2 Certificates, the Class XC Certificates, the
Class XP-1 Certificates and the Class XP-2 Certificates, pro rata, in
accordance with the respective amounts of Distributable Certificate
Interest payable in respect of such Classes described in this clause (i),
in an amount equal to all Distributable Certificate Interest in respect of
each such Class for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(ii) to distributions of principal sequentially, first to the
Holders of the Class A-1 Certificates and second, to the holders of the
Class A-2 Certificates, in each case in an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the remaining Principal
Distribution Amount for such Distribution Date;
(iii) to reimburse the Holders of the Class A-1 Certificates and
Class A-2 Certificates, up to an amount equal to, and pro rata as among
such Classes in accordance with, the respective amounts of Realized Losses
and Additional Trust Fund Expenses, if any, previously allocated to the
Class Principal Balance of such Classes and for which no reimbursement has
previously been paid;
(iv) to distributions of interest to the Holders of the Class B
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(v) if the Class Principal Balances of the Class A-1 Certificates
and Class A-2 Certificates have been reduced to zero, to distributions of
principal to the Holders of the Class B Certificates, in an amount (not to
exceed the Class Principal Balance of the Class B Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(vi) to distributions to the Holders of the Class B Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class B Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(vii) to distributions of interest to the Holders of the Class C
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(viii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates and Class B Certificates have been
reduced to zero, to distributions of principal to the Holders of the Class
C Certificates, in an amount (not to exceed the Class Principal Balance of
the Class C Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(ix) to distributions to the Holders of the Class C Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class C Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(x) to distributions of interest to the Holders of the Class D
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xi) if the Class Principal Balances of the Class A-1 Certificates,
Class A-2 Certificates, Class B Certificates and Class C Certificates have
been reduced to zero, to distributions of principal to the Holders of the
Class D Certificates, in an amount (not to exceed the Class Principal
Balance of the Class D Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xii) to distributions to the Holders of the Class D Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class D Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xiii) to distributions of interest to the Holders of the Class E
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xiv) if the Class Principal Balances of the Class A-1 Certificates,
Class A-2 Certificates, Class B Certificates, Class C Certificates and
Class D Certificates have been reduced to zero, to distributions of
principal to the Holders of the Class E Certificates, in an amount (not to
exceed the Class Principal Balance of the Class E Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xv) to distributions to the Holders of the Class E Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class E Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xvi) to distributions of interest to the Holders of the Class F
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xvii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates and Class E Certificates have been
reduced to zero, to distributions of principal to the Holders of the Class
F Certificates, in an amount (not to exceed the Class Principal Balance of
the Class F Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xviii) to distributions to the Holders of the Class F Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class F Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xix) to distributions of interest to the Holders of the Class G
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xx) if the Class Principal Balances of the Class A-1 Certificates,
Class A-2 Certificates, Class B Certificates, Class C Certificates, Class
D Certificates, Class E Certificates and Class F Certificates have been
reduced to zero, to distributions of principal to the Holders of the Class
G Certificates, in an amount (not to exceed the Class Principal Balance of
the Class G Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xxi) to distributions to the Holders of the Class G Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class G Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xxii) to distributions of interest to the Holders of the Class H
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxiii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates and Class G Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class H Certificates, in
an amount (not to exceed the Class Principal Balance of the Class H
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xxiv) to distributions to the Holders of the Class H Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class H Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xxv) to distributions of interest to the Holders of the Class J
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxvi) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates and Class H Certificates have been
reduced to zero, to distributions of principal to the Holders of the Class
J Certificates, in an amount (not to exceed the Class Principal Balances
of the Class J Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xxvii) to distributions to the Holders of the Class J Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balances of the Class J Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xxviii) to distributions of interest to the Holders of the Class K
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxix) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates and Class J
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class K Certificates, in an amount (not to exceed the
Class Principal Balance of the Class K Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xxx) to distributions to the Holders of the Class K Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class K Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xxxi) to distributions of interest to the Holders of the Class L
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxxii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates and Class K Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class L Certificates, in
an amount (not to exceed the Class Principal Balance of the Class L
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xxxiii) to distributions to the Holders of the Class L
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, that were previously
allocated to the Class Principal Balance of the Class L Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xxxiv) to distributions of interest to the Holders of the Class M
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxxv) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates and Class L Certificates have been
reduced to zero, to distributions of principal to the Holders of the Class
M Certificates, in an amount (not to exceed the Class Principal Balance of
the Class M Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xxxvi) to distributions to the Holders of the Class M Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class M Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xxxvii) to distributions of interest to the Holders of the Class N
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxxviii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates and Class M
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class N Certificates, in an amount (not to exceed the
Class Principal Balance of the Class N Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xxxix) to distributions to the Holders of the Class N Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class N Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xl) to distributions of interest to the Holders of the Class O
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xli) if the Class Principal Balances of the Class A-1 Certificates,
Class A-2 Certificates, Class B Certificates, Class C Certificates, Class
D Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates and Class N
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class O Certificates, in an amount (not to exceed the
Class Principal Balance of the Class O Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xlii) to distributions to the Holders of the Class O Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class O Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xliii) to distributions of interest to the Holders of the Class P
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xliv) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M
Certificates, Class N Certificates and Class O Certificates have been
reduced to zero, to distributions of principal to the Holders of the Class
P Certificates, in an amount (not to exceed the Class Principal Balance of
the Class P Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xlv) to distributions to the Holders of the Class P Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class P Certificates and that remain
unreimbursed immediately prior to such Distribution Date; and
(xlvi) to distributions to the Holders of the Class R-II
Certificates, in the amount remaining in the REMIC II Distribution Account
for such Distribution Date remaining after the distributions to be made on
such Distribution Date pursuant to clauses (i) through (xvii) above;
provided that, on each Distribution Date coinciding with or following the Senior
Principal Distribution Cross-Over Date, and in any event on the Final
Distribution Date, the payments of principal to be made pursuant to clause (ii)
above, will be so made to the Holders of the Class A-1 Certificates and Class
A-2 Certificates, subject to available funds, up to an amount equal to, and pro
rata as among such Classes in accordance with, the respective then outstanding
Class Principal Balances of such Classes, and without regard to the Principal
Distribution Amount for such date; and provided, further, that, on the Final
Distribution Date, the payments of principal to be made pursuant to any of
clauses (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii), (xxvi), (xxix),
(xxxii), (xxxv), (xxxviii), (xli) and (xliv) above with respect to any Class of
Sequential Pay Certificates, will be so made to the Holders thereof, subject to
available funds, up to an amount equal to the entire then outstanding Class
Principal Balance of such Class of Certificates, and without regard to the
Principal Distribution Amount for such date. References to "remaining Principal
Distribution Amount" in clause (ii) above, in connection with payments of
principal to be made to the Holders of the Class A-1 Certificates and Class A-2
Certificates shall be to the Principal Distribution Amount for such Distribution
Date, net of any distributions of principal made in respect thereof to the
Holders of each other Class of Class A Certificates, if any, that pursuant to
clause (ii) above has an earlier right to payment with respect thereto.
References to "remaining Principal Distribution Amount" in any of clauses (v),
(viii), (xi), (xiv), (xvii), (xx), (xxiii), (xxvi), (xxix), (xxxii), (xxxv),
(xxxviii), (xli) and (xliv) above, in connection with the payments of principal
to be made to the Holders of any Class of Sequential Pay Certificates, shall be
to the Principal Distribution Amount for such Distribution Date, net of any
payments of principal made in respect thereof to the Holders of each other Class
of Sequential Pay Certificates that has a higher Payment Priority.
All distributions of interest made in respect of the Class XC, Class
XP-1 and Class XP-2 Certificates on any Distribution Date pursuant to clause (i)
above, shall be deemed to have been made in respect of all the Components of
such Class, pro rata in accordance with the respective amounts of interest that
would be payable on such Components on such Distribution Date based on the Class
XC Strip Rate, Class XP-1 Strip Rate and Class XP-2 Strip Rate, as applicable,
of such Component multiplied by its Component Notional Amount, less an allocable
portion of any Prepayment Interest Shortfall, together with any amounts thereof
remaining unpaid from previous Distribution Dates.
(c) (i) On each Distribution Date, Prepayment Premiums collected
during the related Collection Period will be distributed by the Trustee to
the following Classes: to the Class A-1 Certificates, Class A-2
Certificates, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates and Class J Certificates, 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 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 O Certificates and Class P
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 Prepayment Premiums relating to the Mortgage Loans
collected on such principal prepayments during the related Collection
Period. Any Prepayment Premiums collected during the related Collection
Period remaining after such distributions will be distributed to the
holders of the Class XC Certificates. In the event that a prepayment
premium is actually collected in connection with a prepayment of the
Wellbridge Note B Loan, the amount of such prepayment premium will be
allocated pro rata (based on outstanding principal balance) to the Class
WB Certificates and in accordance with the Wellbridge Co-Lender Agreement.
(ii) The "Base Interest Fraction" with respect to any principal
prepayment on any Mortgage Loan and with respect to any Class of REMIC II
Regular Certificates is a fraction (a) whose numerator is the amount, if
any, 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 Prepayment Premium with respect
to such Principal Prepayment and (b) whose denominator is the amount, if
any, 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 or
equal to the lesser of (x) the Mortgage Rate on such Mortgage Loan and (y)
the Pass-Through Rate described in the preceding sentence, then the Base
Interest Fraction will equal zero.
(iii) No Prepayment Premiums will be distributed to the holders of
the Class K, Class L, Class M, Class N, Class O or Class P Certificates.
After the Certificate Principal Balances of the Class A-1 Certificates,
Class A-2 Certificates, Class B Certificates, Class C Certificates, Class
D Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates and Class J Certificates have been
reduced to zero, all Prepayment Premiums and yield maintenance charges
with respect to the Mortgage Loans shall be distributed to the holders of
the Class XC Certificates.
(iv) All distributions of Prepayment Premiums collected during the
related Collection Period that represent Prepayment Premiums actually
collected on the ES Component Mortgage Loan and the SB Component Mortgage
Loan, as applicable, and allocable to the ES Component Mortgage Loan
Senior Component or the SB Component Mortgage Loan Senior Component, as
applicable, pursuant to Section 4.01(c)(i) shall be deemed to be
distributed from the Component Mortgage Loan REMIC to REMIC I in respect
of the ES Component Mortgage Loan REMIC Senior Regular Interest (whether
or not such ES Component Mortgage Loan REMIC Senior Regular Interest has
received all distributions of interest and principal to which it is
entitled) or the SB Component Mortgage Loan REMIC Senior Regular Interest
(whether or not such SB Component Mortgage Loan REMIC Senior Regular
Interest has received all distributions of interest and principal to which
it is entitled), as applicable. All distributions of Prepayment Premiums
made in respect of the respective Classes of REMIC II Regular Certificates
on each Distribution Date pursuant to Section 4.01(c)(i) shall first be
deemed to be distributed from REMIC I to REMIC II in respect of the REMIC
I Regular Interests, pro rata based upon the amount of principal
distributed in respect of each Class of REMIC I Regular Interest for such
Distribution Date pursuant to Section 4.01(a)(ii) above. All distributions
of Prepayment Premiums made in respect of the respective Classes of Class
WB Certificates on each Distribution Date pursuant to Section 4.01(c)(i)
shall be deemed to be distributed from REMIC I to REMIC II in respect of
the REMIC I Regular Interests corresponding to the Class WB Certificates,
pro rata based upon the amount of principal distributed in respect of each
Class of REMIC I Regular Interest corresponding to the Class WB
Certificates pursuant to Section 4.01(k).
(d) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such Class based on their respective Percentage Interests. Except as
otherwise provided below, all such distributions with respect to each Class of
Certificates on each Distribution Date shall be made to the Certificateholders
of the respective Class of record at the close of business on the related Record
Date and shall be made by wire transfer of immediately available funds to the
account of any such Certificateholder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five (5) Business Days
prior to the related Record Date (which wiring instructions may be in the form
of a standing order applicable to all subsequent Distribution Dates), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. The final distribution on each Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to such Certificate)
will be made in like manner, but only upon presentation and surrender of such
Certificate at the Corporate Trust Office or such other location specified in
the notice to Certificateholders of such final distribution. Any distribution
that is to be made with respect to a Certificate in reimbursement of a Realized
Loss or Additional Trust Fund Expense previously allocated thereto, which
reimbursement is to occur after the date on which such Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Certificateholder that surrendered such Certificate
as such address last appeared in the Certificate Register or to any other
address of which the Trustee was subsequently notified in writing.
(e) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the 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 Master Servicer, the Special Servicer
or the REMIC Administrator shall have any responsibility therefor except as
otherwise provided by this Agreement or applicable law.
(f) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of their Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates in respect of amounts properly
previously distributed on the Certificates. Distributions in reimbursement of
Realized Losses and Additional Trust Fund Expenses previously allocated to a
Class of Certificates shall not constitute distributions of principal and shall
not result in a reduction of the related Class Principal Balance.
(g) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to such
Class of Certificates) will be made on the next Distribution Date, the Trustee
shall, as soon as practicable in the month in which such Distribution Date
occurs, mail to each Holder of such Class of Certificates as of the date of
mailing a notice to the effect that:
(i) the Trustee expects that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date but only
upon presentation and surrender of such Certificates at the Corporate
Trust Office 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(g) shall not have been surrendered for
cancellation within six (6) months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one (1) year
after the second notice all such Certificates shall not have been surrendered
for cancellation, the Trustee, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(g). If all of the Certificates
shall not have been surrendered for cancellation by the second anniversary of
the delivery of the second notice, the Trustee shall distribute to the Class
R-II Certificateholders all unclaimed funds and other assets which remain
subject hereto.
(h) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code taking into account
any applicable exemptions from, or reductions in, withholding upon receipt of
appropriate Internal Revenue Service forms and documentation. The consent of
Certificateholders shall not be required for such withholding. In the event the
Trustee does withhold any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall indicate the amount withheld to such
Certificateholders. Such amounts shall be deemed to have been distributed to
such Certificateholders for all purposes of this Agreement.
(i) On each Distribution Date, the Trustee, in respect of the ES
Component Mortgage Loan Senior Regular Interest, each Class of Class ES
Certificates and the Class R-I Certificates, shall (except as otherwise provided
in Section 9.01), based on information provided by the Master Servicer and the
Special Servicer, apply amounts on deposit in the Distribution Account, after
payment of amounts payable from the Distribution Account in accordance with
Section 3.05(b)(ii) through (vi), to the extent related to the ES Component
Mortgage Loan, for the following purposes and in the following order of
priority, in each case to the extent of the remaining portion of the ES
Component Mortgage Loan Available Distribution Amount:
(i) with respect to the ES Component Mortgage Loan, as deemed
distributions from the Component Mortgage Loan REMIC to REMIC I in respect
of the ES Component Mortgage Loan as part of the Available Distribution
Amount for such Distribution Date, up to an amount equal to all
Distributable ES Component Mortgage Loan Certificate Interest in respect
of the ES Component Mortgage Loan Senior Component for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(ii) with respect to the ES Component Mortgage Loan, as deemed
distributions from the Component Mortgage Loan REMIC to REMIC I in respect
of the ES Component Mortgage Loan as part of the Available Distribution
Amount for such Distribution Date, up to an amount equal to the ES
Component Mortgage Loan Component Principal Entitlement for the ES
Component Mortgage Loan Senior Component for such Distribution Date (the
"ES Component Mortgage Loan Senior Component Principal Distribution
Amount");
(iii) with respect to the ES Component Mortgage Loan, as deemed
distributions from the Component Mortgage Loan REMIC to REMIC I in respect
of the ES Component Mortgage Loan as part of the Available Distribution
Amount for such Distribution Date, to reimburse the ES Component Mortgage
Loan Senior Component for all Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated with respect to the ES Component
Mortgage Loan to the ES Component Mortgage Senior Component and for which
no reimbursement has previously been received;
(iv) to pay interest on the ES Component Mortgage Loan ES-A
Component, up to an amount equal to all Distributable ES Component
Mortgage Loan Certificate Interest in respect of the ES Component Mortgage
Loan ES-A Component for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(v) to pay principal on the ES Component Mortgage Loan ES-A
Component, up to an amount equal to the ES Component Mortgage Loan
Component Principal Entitlement for the ES Component Mortgage Loan ES-A
Component for such Distribution Date;
(vi) to reimburse the ES Component Mortgage Loan ES-A Component for
all Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated with respect to the ES Component Mortgage Loan to the ES
Component Mortgage Loan ES-A Component and for which no reimbursement has
previously been received;
(vii) to pay interest on the ES Component Mortgage Loan ES-B
Component, up to an amount equal to all Distributable ES Component
Mortgage Loan Certificate Interest in respect of the ES Component Mortgage
Loan ES-B Component for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(viii) to pay principal on the ES Component Mortgage Loan ES-B
Component, up to an amount equal to the ES Component Mortgage Loan
Component Principal Entitlement for the ES Component Mortgage Loan ES-B
Component for such Distribution Date;
(ix) to reimburse the ES Component Mortgage Loan ES-B Component for
all Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated with respect to the ES Component Mortgage Loan to the ES
Component Mortgage Loan ES-B Component and for which no reimbursement has
previously been received;
(x) to pay interest on the ES Component Mortgage Loan ES-C
Component, up to an amount equal to all Distributable ES Component
Mortgage Loan Certificate Interest in respect of the ES Component Mortgage
Loan ES-C Component for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xi) to pay principal on the ES Component Mortgage Loan ES-C
Component, up to an amount equal to the ES Component Mortgage Loan
Component Principal Entitlement for the ES Component Mortgage Loan ES-C
Component for such Distribution Date;
(xii) to reimburse the ES Component Mortgage Loan ES-C Component for
all Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated with respect to the ES Component Mortgage Loan to the ES
Component Mortgage Loan ES-C Component and for which no reimbursement has
previously been received;
(xiii) to pay interest on the ES Component Mortgage Loan ES-D
Component, up to an amount equal to all Distributable ES Component
Mortgage Loan Certificate Interest in respect of the ES Component Mortgage
Loan ES-D Component for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xiv) to pay principal on the ES Component Mortgage Loan ES-D
Component, up to an amount equal to the ES Component Mortgage Loan
Component Principal Entitlement for the ES Component Mortgage Loan ES-D
Component for such Distribution Date;
(xv) to reimburse the ES Component Mortgage Loan ES-D Component for
all Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated with respect to the ES Component Mortgage Loan to the ES
Component Mortgage Loan ES-D Component and for which no reimbursement has
previously been received;
(xvi) to pay interest on the ES Component Mortgage Loan ES-E
Component, up to an amount equal to all Distributable ES Component
Mortgage Loan Certificate Interest in respect of the ES Component Mortgage
Loan ES-E Component for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xvii) to pay principal on the ES Component Mortgage Loan ES-E
Component, up to an amount equal to the ES Component Mortgage Loan
Component Principal Entitlement for the ES Component Mortgage Loan ES-E
Component for such Distribution Date;
(xviii) to reimburse the ES Component Mortgage Loan ES-E Component
for all Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated with respect to the ES Component Mortgage Loan to the
ES Component Mortgage Loan ES-E Component and for which no reimbursement
has previously been received;
(xix) to pay interest on the ES Component Mortgage Loan ES-F
Component, up to an amount equal to all Distributable ES Component
Mortgage Loan Certificate Interest in respect of the ES Component Mortgage
Loan ES-F Component for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xx) to pay principal on the ES Component Mortgage Loan ES-F
Component, up to an amount equal to the ES Component Mortgage Loan
Component Principal Entitlement for the ES Component Mortgage Loan ES-F
Component for such Distribution Date;
(xxi) to reimburse the ES Component Mortgage Loan ES-F Component for
all Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated with respect to the ES Component Mortgage Loan to the ES
Component Mortgage Loan ES-F Component and for which no reimbursement has
previously been received;
(xxii) to pay interest on the ES Component Mortgage Loan ES-G
Component, up to an amount equal to all Distributable ES Component
Mortgage Loan Certificate Interest in respect of the ES Component Mortgage
Loan ES-G Component for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xxiii) to pay principal on the ES Component Mortgage Loan ES-G
Component, up to an amount equal to the ES Component Mortgage Loan
Component Principal Entitlement for the ES Component Mortgage Loan ES-G
Component for such Distribution Date;
(xxiv) to reimburse the ES Component Mortgage Loan ES-G Component
for all Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated with respect to the ES Component Mortgage Loan to the
ES Component Mortgage Loan ES-G Component and for which no reimbursement
has previously been received;
(xxv) to pay interest on the ES Component Mortgage Loan ES-H
Component, up to an amount equal to all Distributable ES Component
Mortgage Loan Certificate Interest in respect of the ES Component Mortgage
Loan ES-H Component for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xxvi) to pay principal on the ES Component Mortgage Loan ES-H
Component, up to an amount equal to the ES Component Mortgage Loan
Component Principal Entitlement for the ES Component Mortgage Loan ES-H
Component for such Distribution Date;
(xxvii) to reimburse the ES Component Mortgage Loan ES-H Component
for all Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated with respect to the ES Component Mortgage Loan to the
ES Component Mortgage Loan ES-H Component and for which no reimbursement
has previously been received; and
(xxviii) with respect to the ES Component Mortgage Loan, to make
distributions to the Holders of the Class R-I Certificates in respect of
the Component Mortgage Loan REMIC Residual Interest, up to an amount equal
to the excess, if any, of (A) the aggregate distributions made on the ES
Component Mortgage Loan on such Distribution Date, over (B) the sum of (1)
the aggregate distributions deemed made in respect of the Corresponding
Component Mortgage Loan REMIC Senior Regular Interest on such Distribution
Date pursuant to clauses (i), (ii) and (iii) of this Section 4.01(i) and
Section 4.01(c), and (2) the aggregate distributions made in respect of
the Corresponding Class of Class ES Certificates on such Distribution Date
pursuant to clauses (iv) through (xxvii) of this Section 4.01(i).
(j) On each Distribution Date, the Trustee, in respect of the SB
Component Mortgage Loan Senior Regular Interest, each Class of Class SB
Certificates and the Class R-I Certificates, shall (except as otherwise provided
in Section 9.01), based on information provided by the Master Servicer and the
Special Servicer, apply amounts on deposit in the Distribution Account, after
payment of amounts payable from the Distribution Account in accordance with
Section 3.05(b)(ii) through (vi), to the extent related to the SB Component
Mortgage Loan, for the following purposes and in the following order of
priority, in each case to the extent of the remaining portion of the SB
Component Mortgage Loan Available Distribution Amount:
(i) with respect to the SB Component Mortgage Loan, as deemed
distributions from the Component Mortgage Loan REMIC to REMIC I in respect
of the SB Component Mortgage Loan as part of the Available Distribution
Amount for such Distribution Date, up to an amount equal to all
Distributable SB Component Mortgage Loan Certificate Interest in respect
of the SB Component Mortgage Loan Senior Component for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(ii) with respect to the SB Component Mortgage Loan, as deemed
distributions from the Component Mortgage Loan REMIC to REMIC I in respect
of the SB Component Mortgage Loan as part of the Available Distribution
Amount for such Distribution Date, up to an amount equal to the SB
Component Mortgage Loan Component Principal Entitlement for the SB
Component Mortgage Loan Senior Component for such Distribution Date (the
"SB Component Mortgage Loan Senior Component Principal Distribution
Amount");
(iii) with respect to the SB Component Mortgage Loan, as deemed
distributions from the Component Mortgage Loan REMIC to REMIC I in respect
of the SB Component Mortgage Loan as part of the Available Distribution
Amount for such Distribution Date, to reimburse the SB Component Mortgage
Loan Senior Component for all Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated with respect to the SB Component
Mortgage Loan to the SB Component Mortgage Senior Component and for which
no reimbursement has previously been received;
(iv) to pay interest on the SB Component Mortgage Loan SB-A
Component, up to an amount equal to all Distributable SB Component
Mortgage Loan Certificate Interest in respect of the SB Component Mortgage
Loan SB-A Component for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(v) to pay principal on the SB Component Mortgage Loan SB-A
Component, up to an amount equal to the SB Component Mortgage Loan
Component Principal Entitlement for the SB Component Mortgage Loan SB-A
Component for such Distribution Date;
(vi) to reimburse the SB Component Mortgage Loan SB-A Component for
all Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated with respect to the SB Component Mortgage Loan to the SB
Component Mortgage Loan SB-A Component and for which no reimbursement has
previously been received;
(vii) to pay interest on the SB Component Mortgage Loan SB-B
Component, up to an amount equal to all Distributable SB Component
Mortgage Loan Certificate Interest in respect of the SB Component Mortgage
Loan SB-B Component for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(viii) to pay principal on the SB Component Mortgage Loan SB-B
Component, up to an amount equal to the SB Component Mortgage Loan
Component Principal Entitlement for the SB Component Mortgage Loan SB-B
Component for such Distribution Date;
(ix) to reimburse the SB Component Mortgage Loan SB-B Component for
all Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated with respect to the SB Component Mortgage Loan to the SB
Component Mortgage Loan SB-B Component and for which no reimbursement has
previously been received;
(x) to pay interest on the SB Component Mortgage Loan SB-C
Component, up to an amount equal to all Distributable SB Component
Mortgage Loan Certificate Interest in respect of the SB Component Mortgage
Loan SB-C Component for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xi) to pay principal on the SB Component Mortgage Loan SB-C
Component, up to an amount equal to the SB Component Mortgage Loan
Component Principal Entitlement for the SB Component Mortgage Loan SB-C
Component for such Distribution Date;
(xii) to reimburse the SB Component Mortgage Loan SB-C Component for
all Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated with respect to the SB Component Mortgage Loan to the SB
Component Mortgage Loan SB-C Component and for which no reimbursement has
previously been received;
(xiii) to pay interest on the SB Component Mortgage Loan SB-D
Component, up to an amount equal to all Distributable SB Component
Mortgage Loan Certificate Interest in respect of the SB Component Mortgage
Loan SB-D Component for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xiv) to pay principal on the SB Component Mortgage Loan SB-D
Component, up to an amount equal to the SB Component Mortgage Loan
Component Principal Entitlement for the SB Component Mortgage Loan SB-D
Component for such Distribution Date;
(xv) to reimburse the SB Component Mortgage Loan SB-D Component for
all Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated with respect to the SB Component Mortgage Loan to the SB
Component Mortgage Loan SB-D Component and for which no reimbursement has
previously been received;
(xvi) to pay interest on the SB Component Mortgage Loan SB-E
Component, up to an amount equal to all Distributable SB Component
Mortgage Loan Certificate Interest in respect of the SB Component Mortgage
Loan SB-E Component for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xvii) to pay principal on the SB Component Mortgage Loan SB-E
Component, up to an amount equal to the SB Component Mortgage Loan
Component Principal Entitlement for the SB Component Mortgage Loan SB-E
Component for such Distribution Date;
(xviii) to reimburse the SB Component Mortgage Loan SB-E Component
for all Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated with respect to the SB Component Mortgage Loan to the
SB Component Mortgage Loan SB-E Component and for which no reimbursement
has previously been received; and
(xix) with respect to the SB Component Mortgage Loan, to make
distributions to the Holders of the Class R-I Certificates in respect of
the Component Mortgage Loan REMIC Residual Interest, up to an amount equal
to the excess, if any, of (A) the aggregate distributions made on the SB
Component Mortgage Loan on such Distribution Date, over (B) the sum of (1)
the aggregate distributions deemed made in respect of the Corresponding
Component Mortgage Loan REMIC Senior Regular Interest on such Distribution
Date pursuant to clauses (i), (ii) and (iii) of this Section 4.01(j) and
Section 4.01(c), and (2) the aggregate distributions made in respect of
the Corresponding Class of Class SB Certificates on such Distribution Date
pursuant to clauses (iv) through (xviii) of this Section 4.01(j).
(k) On each Distribution Date, the Trustee, in respect of each Class
of Class WB Certificates and the Class R-II Certificates, shall (except as
otherwise provided in Section 9.01), based on information provided by the Master
Servicer and the Special Servicer, apply amounts on deposit in the Distribution
Account allocable to the Class WB Available Distribution Amount, after payment
of amounts payable from the Distribution Account in accordance with Section
3.05(b)(ii) through (vi), to the extent related to the Wellbridge Note B Loan,
for the following purposes and in the following order of priority, in each case
to the extent of the remaining portion of the Class WB Available Distribution
Amount:
(i) to pay interest to the holders of the Class WB-A Certificates,
up to an amount equal to all Distributable Certificate Interest in respect
or such Class of Certificates for such Distribution Date and, to the
extent not previously paid, for all prior Distribution Dates;
(ii) to pay principal to the holders of the Class WB-A Certificates,
up to an amount equal to the Class WB Principal Entitlement for the Class
WB-A Certificates for such Distribution Date;
(iii) to reimburse the holders of the Class WB-A Certificates, up to
an amount equal to all Realized Losses and Additional Trust Fund Expenses,
if any, previously allocated to the Certificate Balance of such Class of
Certificates and for which no reimbursement has previously been received;
(iv) to pay interest to the holders of the Class WB-B Certificates,
up to an amount equal to all Distributable Certificate Interest in respect
or such Class of Certificates for such Distribution Date and, to the
extent not previously paid, for all prior Distribution Dates;
(v) to pay principal to the holders of the Class WB-B Certificates,
up to an amount equal to the Class WB Principal Entitlement for the Class
WB-B Certificates for such Distribution Date;
(vi) to reimburse the holders of the Class WB-B Certificates, up to
an amount equal to all Realized Losses and Additional Trust Fund Expenses,
if any, previously allocated to the Certificate Balance of such Class of
Certificates and for which no reimbursement has previously been received;
(vii) to pay interest to the holders of the Class WB-C Certificates,
up to an amount equal to all Distributable Certificate Interest in respect
or such Class of Certificates for such Distribution Date and, to the
extent not previously paid, for all prior Distribution Dates;
(viii) to pay principal to the holders of the Class WB-C
Certificates, up to an amount equal to the Class WB Principal Entitlement
for the Class WB-C Certificates for such Distribution Date;
(ix) to reimburse the holders of the Class WB-C Certificates, up to
an amount equal to all Realized Losses and Additional Trust Fund Expenses,
if any, previously allocated to the Certificate Balance of such Class of
Certificates and for which no reimbursement has previously been received;
(x) to pay interest to the holders of the Class WB-D Certificates,
up to an amount equal to all Distributable Certificate Interest in respect
or such Class of Certificates for such Distribution Date and, to the
extent not previously paid, for all prior Distribution Dates;
(xi) to pay principal to the holders of the Class WB-D Certificates,
up to an amount equal to the Class WB Principal Entitlement for the Class
WB-D Certificates for such Distribution Date;
(xii) to reimburse the holders of the Class WB-D Certificates, up to
an amount equal to all Realized Losses and Additional Trust Fund Expenses,
if any, previously allocated to the Certificate Balance of such Class of
Certificates and for which no reimbursement has previously been received;
and
(xiii) to pay to the holders of the Class R-II Certificates, the
balance, if any, of the Class WB Available Distribution Amount for such
Distribution Date (remaining in the REMIC II Distribution Account).
SECTION 4.02 Statements to Certificateholders; Certain Reports by
the Master Servicer and the Special Servicer.
(a) On each Distribution Date, the Trustee shall provide or make
available, either in electronic format or by first-class mail to each Holder
(and, if it shall have certified to the Trustee as to its Ownership Interest in
a Class of Book-Entry Certificates, each Certificate Owner) of the Certificates
and to the Rating Agencies a statement (a "Distribution Date Statement"),
substantially in the form contemplated on pages C-1 through C-17 of the
Prospectus Supplement, as to the distributions made on such Distribution Date
setting forth:
(i) the amount of the distribution, if any, on such Distribution
Date to the Holders of each Class of REMIC II Regular Certificates, each
Class of Class ES Certificates, each Class of Class SB Certificates and
each Class of WB Certificates in reduction of the Class Principal Balance
thereof;
(ii) the amount of the distribution, if any, on such Distribution
Date to the Holders of each Class of REMIC II Regular Certificates
allocable to Distributable Certificate Interest and the amount of the
distribution, if any, on such Distribution Date to the Holders of each
Class of REMIC II Regular Certificates allocable to Prepayment Premiums;
(iii) the amount of the distribution, if any, on such Distribution
Date to the Holders of each Class of Class ES Certificates, each Class of
Class SB Certificates and each Class of Class WB Certificates, as
applicable, allocable to Distributable ES Component Mortgage Loan
Certificate Interest or Distributable SB Component Mortgage Loan
Certificate Interest, as applicable;
(iv) the Available Distribution Amount, the Class WB Available
Distribution Amount, the ES Component Mortgage Loan Available Distribution
Amount, and the SB Component Mortgage Loan Available Distribution Amount
for such Distribution Date;
(v) the aggregate amount of P&I Advances (both as to those within
any applicable grace period and those which are beyond any applicable
grace period, together with the aggregate amount of delinquencies) and
other Servicing Advances made in respect of the immediately preceding
Distribution Date;
(vi) P&I Advances outstanding as of the Master Servicer Remittance
Date;
(vii) the aggregate amount of P&I Advances made in respect of the
immediately preceding Determination Date;
(viii) the aggregate Stated Principal Balance of the Mortgage Pool
(less (a) the ES Component Mortgage Loan Subordinate Balance of each of
the ES Component Mortgage Loan Subordinate Components), (b) the SB
Component Mortgage Loan Subordinate Balance of each of the SB Component
Mortgage Loan Subordinate Components) and (c) the outstanding principal
balance of the Wellbridge Note B Loan outstanding immediately before and
immediately after such Distribution Date;
(ix) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Pool as of the end of the Collection Period for the immediately
preceding Determination Date;
(x) as of the Determination Date for the related Distribution Date,
the number, aggregate unpaid principal balance and specific identification
(by loan number) of Mortgage Loans (A) delinquent 30-59 days, (B)
delinquent 60-89 days, (C) delinquent 90 or more days, (D) current but
specially serviced or in foreclosure but not a REO Property and (E)
identification of Mortgage Loans the Mortgagor for which is subject to
bankruptcy;
(xi) with respect to any REO Property included in the Trust Fund as
of the end of the Collection Period for such Distribution Date, the
principal balance of the Mortgage Loan as of the date such Mortgage Loan
became delinquent;
(xii) the Accrued Certificate Interest, Distributable Certificate
Interest, Distributable ES Component Mortgage Loan Certificate Interest
and Distributable SB Component Mortgage Loan Certificate Interest in
respect of each Class of Class WB Certificates, each Class of REMIC II
Regular Certificates, each Class of Class ES Certificates and each Class
of Class SB Certificates, as applicable, for such Distribution Date;
(xiii) the aggregate amount of Distributable Certificate Interest,
Distributable ES Component Mortgage Loan Certificate Interest and
Distributable SB Component Mortgage Loan Certificate Interest payable in
respect of each Class of Class WB Certificates, each Class of REMIC II
Regular Certificates, each Class of Class ES Certificates and each Class
of Class SB Certificates, as applicable, on such Distribution Date,
including, without limitation, any Distributable Certificate Interest
remaining unpaid from prior Distribution Dates;
(xiv) any unpaid Distributable Certificate Interest, Distributable
ES Component Mortgage Loan Certificate Interest and Distributable SB
Component Mortgage Loan Certificate Interest in respect of Class of REMIC
II Regular Certificates, each Class of Class ES Certificates, each Class
of Class SB Certificates and each Class of Class WB Certificates, as
applicable, after giving effect to the distributions made on such
Distribution Date;
(xv) the Pass-Through Rate for each Class of REMIC II Regular
Certificates, each Class of Class ES Certificates, each Class of Class SB
Certificates and each Class of Class WB Certificates, as applicable, for
such Distribution Date;
(xvi) the Principal Distribution Amount for such Distribution Date,
separately identifying the amounts distributable to each Class of Class WB
Certificates, to each Class of REMIC II Regular Certificates, to each
Class of Class ES Certificates and to each Class of Class SB Certificates;
(xvii) the aggregate of all Realized Losses incurred during the
related Collection Period and all Additional Trust Fund Expenses (broken
down by type of expense) incurred during the related Collection Period,
and an itemization of all such Additional Trust Fund Expenses;
(xviii) the Certificate Principal Balance or Notional Amount, as the
case may be, of Class of REMIC II Regular Certificates, each Class of
Class ES Certificates, each Class of Class SB Certificates and each Class
of Class WB Certificates outstanding immediately before and immediately
after such Distribution Date, separately identifying any reduction therein
due to the allocation of Realized Losses and Additional Trust Fund
Expenses on such Distribution Date;
(xix) the Certificate Factor for each Class of REMIC II Regular
Certificates, each Class of Class ES Certificates, each Class of Class SB
Certificates and each Class of Class WB Certificates immediately following
such Distribution Date;
(xx) the aggregate amount of servicing fees paid to the Master
Servicer and the Special Servicer, collectively and separately, during the
related Collection Period; and
(xxi) a brief description of any material waiver, modification or
amendment of any Loan entered into by the Master Servicer or Special
Servicer pursuant to Section 3.20 during the related Collection Period;
(xxii) current and cumulative outstanding Advances;
(xxiii) current prepayments and curtailments;
(xxiv) the number and aggregate principal balance of Mortgage Loans
as to which foreclosure proceedings have been commenced as to the related
Mortgaged Property;
(xxv) the ratings from all Rating Agencies for all classes of
Certificates; and
(xxvi) the amounts, if any, distributed in respect of the Class ES
Certificates, the Class SB Certificates and the Class WB Certificates, as
applicable.
Any item of information disclosed to the Trustee by the Master
Servicer pursuant to Section 3.19(a) since the preceding Distribution Date (or,
in the case of the initial Distribution Date, since the Closing Date) shall be
made available with the Distribution Date Statement.
In the case of information furnished pursuant to clauses (i) and
(ii) above, the amounts shall be expressed as a dollar amount in the aggregate
for all Certificates of each applicable Class and per Single Certificate. Except
with respect to the Certificate Factor (required to be reported by clause (xvi)
above), financial information reported by the Trustee to the Certificateholders
pursuant to this Section 4.02 shall be expressed as a dollar amount rounded to
the nearest whole cent. Absent actual knowledge of an error therein, the Trustee
shall have no obligation to recompute, recalculate or verify any information
provided to it by the Master Servicer or Special Servicer. The calculations by
the Trustee contemplated by this Section 4.02 shall, in the absence of manifest
error, be presumptively deemed to be correct for all purposes hereunder.
The Trustee shall be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the Distribution Date Statement and may affix
thereto any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party hereto).
In addition, the Trustee shall provide or make available, either in
electronic format or by first-class mail, to such Certificateholders and
Certificate Owners and to the Rating Agencies, at the same time that the
Distribution Date Statement is delivered thereto, each (i) CMSA Delinquent Loan
Status Report, (ii) CMSA REO Status Report, (iii) CMSA Historical Loan
Modification and Corrected Mortgage Loan Report, (iv) CMSA Historical
Liquidation Report, (v) CMSA Comparative Financial Status Report, (vi) CMSA
Servicer Watch List Report, (vii) CMSA NOI Adjustment Worksheet, (viii) CMSA
Operating Statement Analysis Report, (ix) CMSA Loan Periodic Update File, (x)
CMSA Property File and (xi) CMSA Financial File (such eight supplemental reports
and three data files, the "Servicer Reports") that has been received by the
Trustee since the prior Distribution Date and the CMSA Bond File and CMSA
Collateral Summary File (the "Trustee Reports"). Additionally, the Trustee shall
also be required to provide or make available, either in electronic format or by
first-class mail, the Servicer Reports to any potential investor in the
Certificates who requests such reports in writing. In addition, the Depositor
shall cause the Mortgage Loan Seller to prepare (or cause to be prepared on its
behalf) a CMSA Loan Set-Up File.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Holder of a REMIC II Regular Certificate, Class ES
Certificate, Class SB Certificate or Class WB Certificate a statement containing
the information as to the applicable Class set forth in clauses (i) and (ii)
above of the description of Distribution Date Statement, aggregated for such
calendar year or applicable portion thereof during which such Person was a
Certificateholder, together with such other information as the Trustee
determines to be necessary to enable Certificateholders to prepare their tax
returns for such calendar year. Such obligation of the Trustee shall be deemed
to have been satisfied to the extent that substantially comparable information
shall be provided by the Trustee pursuant to any requirements of the Code as
from time to time are in force.
Upon filing with the IRS, the REMIC Administrator shall furnish to
the Holders of the Class R-I and Class R-II Certificates the Form 1066 and shall
furnish their respective Schedules Q thereto at the times required by the Code
or the IRS, and shall provide from time to time such information and
computations with respect to the entries on such forms as any Holder of the
Class R-I and Class R-II Certificates may reasonably request.
The Trustee will make available each month, to any interested party,
the Distribution Date Statement (and any additional files containing the same
information in an alternative format) via the Trustee's Website. In addition,
the Trustee will make available to any interested party each month the Servicer
Reports, the CMSA Loan Setup File and the Trustee's Reports on the Trustee's
Website. In addition, the Trustee will make available, as a convenience for
interested parties (and not in furtherance of the distribution of the Base
Prospectus and the Prospectus Supplement under the securities laws), this
Agreement, the Base Prospectus and the Prospectus Supplement via the Trustee's
Website. For assistance with the above-referenced services, interested parties
may call (000) 000-0000. The Trustee will make no representations or warranties
as to the accuracy or completeness of such documents and will assume no
responsibility therefor.
In connection with providing access to the Trustee's Website, the
Trustee may require registration and the acceptance of a disclaimer. The Trustee
shall not be liable for the dissemination of the information in accordance
herewith.
(b) By 7:00 p.m. (New York City time) on the second Business Day
following each Determination Date, the Master Servicer shall deliver to the
Trustee, in a computer-readable medium downloadable by the Trustee, each of the
files and reports comprising the CMSA Investor Reporting Package (other than the
CMSA Bond Level File and the CMSA Collateral Summary File, which are prepared by
the Trustee), each reflecting information as of the close of business on such
Determination Date, in a mutually agreeable electronic format. The CMSA Loan
Periodic Update File contained in the CMSA Investor Reporting Package and any
written information supplemental thereto shall include such information with
respect to the Mortgage Loans that is reasonably required by the Trustee for
purposes of making the calculations and preparing the reports for which the
Trustee is responsible pursuant to Section 4.01, this Section 4.02, Section 4.04
or any other section of this Agreement, as set forth in reasonable written
specifications or guidelines issued by the Trustee from time to time. Such
information may be delivered by the Master Servicer to the Trustee by telecopy
or in such electronic or other form as may be reasonably acceptable to the
Trustee and the Master Servicer.
The Special Servicer shall from time to time (and, in any event, as
may be reasonably required by the Master Servicer) provide the Master Servicer
with such information in its possession regarding the Specially Serviced Loans
and REO Properties as may be necessary for the Master Servicer to prepare each
report and any supplemental information to be provided by the Master Servicer to
the Trustee.
Notwithstanding the foregoing, the failure of the Master Servicer or
the Special Servicer to disclose any information otherwise required to be
disclosed pursuant to Section 4.02(a) or this Section 4.02(b) shall not
constitute a breach of Section 4.02(a) or of this Section 4.02(b) to the extent
the Master Servicer or the Special Servicer so fails because such disclosure, in
the reasonable belief of the Master 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, would constitute a waiver of the
attorney-client privilege on behalf of the Trust or would otherwise materially
harm the Trust Fund. The Master 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) Not later than 2:00 p.m. (New York City time) on the first
Business Day following each Determination Date, the Special Servicer shall
prepare and deliver or cause to be delivered to the Master Servicer, the
following reports (or data fields required for the Master Servicer to produce
such reports) with respect to the Specially Serviced Loans and any REO
Properties, providing the required information as of such Determination Date:
(i) a CMSA Property File; and (ii) a CMSA Special Servicer Loan File. In
addition, the Special Servicer shall from time to time provide the Master
Servicer with such information in the Special Servicer's possession regarding
the Specially Serviced Loans and REO Properties as may be requested by the
Master Servicer and is reasonably necessary for the Master Servicer to prepare
each report and any supplemental information required to be provided by the
Master Servicer to the Trustee.
(d) Notwithstanding anything herein to the contrary, the failure of
the Master Servicer or Special Servicer to disclose any information otherwise
required to be disclosed by this Section 4.02 shall not constitute a breach of
this Section 4.02 to the extent the Master Servicer or Special Servicer so fails
because such disclosure, in the reasonable belief of the Master 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 or would constitute a
waiver of the attorney-client privilege on behalf of the Trust. The Master
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, the related Mortgage Loan documents and the Servicing
Standard. The Master 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).
(e) If the Master Servicer or the Special Servicer is required to
deliver any statement, report or information under any provision of this
Agreement (other than reports to be delivered to the Trustee which shall be
delivered directly to the Trustee in a mutually agreeable electronic format),
the Master Servicer or the Special Servicer, as the case may be, may satisfy
such obligation by (x) physically delivering a paper copy of such statement,
report or information, (y) delivering such statement, report or information in a
commonly used electronic format or (z) making such statement, report or
information available on the Master Servicer's internet website, unless this
Agreement expressly specifies a particular method of delivery.
SECTION 4.03 P&I Advances.
(a) On each Master Servicer Remittance Date, the Master Servicer
shall in the case of all Mortgage Loans, other than a Mortgage Loan included in
a Loan Pair, either (i) deposit into the Distribution Account 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; provided that if Late Collections of
any of the delinquent principal and/or interest in respect of which it is to
make P&I Advances on any Master Servicer Remittance Date are then on deposit in
the Certificate Account, the Master Servicer shall use such Late Collections
(net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable
therefrom) to make such P&I Advances. With respect to each Loan Pair, on each
Master Servicer Remittance Date or such earlier time in the case of the
Wellbridge A/B Mortgage Loan for which the Master Servicer may have an
obligation to make a P&I Advance hereunder on a Wellbridge Securitized Note not
held by the Trust pursuant to the Wellbridge Co-Lender Agreement, the Master
Servicer shall either (i) deposit into the Loan Pair Custodial Account 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 on such Loan Pair, (ii) apply
amounts held in the related Loan Pair Custodial Account for future distribution
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; provided that if Late
Collections of any of the delinquent principal and/or interest in respect of
which it is to make P&I Advances on any Master Servicer Remittance Date are then
on deposit in the related Loan Pair Custodial Account, the Master Servicer shall
use such Late Collections (net of any Master Servicing Fees, Liquidation Fees
and Workout Fees payable therefrom and any portion thereof required to be paid
to any Companion Noteholder under any Co-Lender Agreement) to make such P&I
Advances. In connection with the obligation of the Master Servicer to make P&I
Advances with respect to the Wellbridge Securitized Notes following a monetary
event default or other material event of default under the Wellbridge A/B
Mortgage Loan, the Master Servicer shall make such P&I Advances, first in an
amount equal to the entire scheduled delinquent Monthly Payment or Assumed
Monthly Payment due or deemed due, as the case may be, with respect to those
Wellbridge Securitized Notes which are Wellbridge Senior Notes and shall second
make an additional P&I Advance with respect to the Wellbridge Note B in such
amount as is required to cover the delinquent interest portion of a Monthly
Payment or Assumed Monthly Payment otherwise (i.e., but for the required
application following such events of the Monthly Payments or Assumed Monthly
Payment first to amounts owed in respect of the Wellbridge Senior Notes pursuant
to the terms of the Wellbridge Co-Lender Agreement) that would be due and owing
or deemed due and owing under the Wellbridge Note B had the monetary event of
default or other material event of default not occurred. In addition the
Trustee's or the Fiscal Agent's obligations to make P&I Advances with respect to
the Wellbridge Senior Note A-1 and the Wellbridge Note B should the Master
Servicer fail in its obligation to do so shall be made to such Wellbridge Notes
in the manner set forth in the third preceding sentence. In addition, the right
of the Master Servicer, the Trustee and/or the Fiscal Agent to recover amounts
made as P&I Advances and interest thereon shall be limited to collections on the
Wellbridge A/B Mortgage Loan which are allocable to the Wellbridge Note B as set
forth in the Wellbridge Co-Lender Agreement. Any amounts held in the Certificate
Account or if a Loan Pair is involved the related Loan Pair Custodial Account
for future distribution and so used to make P&I Advances (other than the Late
Collections of the delinquent principal and/or interest contemplated by the
proviso to the preceding sentence) shall be appropriately reflected in the
Master Servicer's records and replaced by the Master Servicer by deposit in the
Certificate Account or if a Loan Pair is involved the related Loan Pair
Custodial Account on or before the next succeeding Determination Date (to the
extent not previously replaced through the deposit of Late Collections of the
delinquent principal and/or interest in respect of which such P&I Advances were
made). The Master Servicer will not be required to make any P&I Advances with
respect to any Wellbridge Non-Securitized Note or any CBA B Note. If, as of 4:00
p.m., New York City time, on any Master Servicer Remittance Date, the Master
Servicer shall not have made any P&I Advance required to be made (other than a
P&I Advance with respect to a Companion Loan) on such date pursuant to this
Section 4.03(a) (and shall not have delivered to the Trustee the requisite
Officer's Certificate and documentation related to a determination of
nonrecoverability of a P&I Advance), then the Trustee shall provide notice of
such failure to a Servicing Officer of the Master Servicer by facsimile
transmission sent to telecopy no. (000) 000-0000 (or such alternative number
provided by the Master Servicer to the Trustee in writing) and by telephone at
telephone no. (000) 000-0000 (or such alternative number provided by the Master
Servicer to the Trustee in writing) as soon as possible, but in any event before
4:00 p.m., New York City time, on such Master Servicer Remittance Date. If,
after such notice, the Trustee does not receive the full amount of such P&I
Advances by the close of business (New York City time) on such Master Servicer
Remittance Date, then (i) unless the Trustee or the Fiscal Agent determines that
such Advance would be a Nonrecoverable P&I Advance if made, the Trustee or the
Fiscal Agent shall make, by 11:00 a.m. on the Distribution Date or in any event
by such time as shall be required in order to make the required distribution on
such Distribution Date, the portion of such P&I Advances that was required to
be, but was not, made by the Master Servicer on such Master Servicer Remittance
Date and (ii) such failure shall constitute an Event of Default on the part of
the Master Servicer. Neither the Trustee nor the Fiscal Agent shall be required
to make an Advance on any Companion Loan.
(b) The aggregate amount of P&I Advances to be made in respect of
the Loans (including, without limitation, Balloon Loans delinquent as to their
respective Balloon Payments) and any REO Loans for any Distribution Date shall
equal, subject to subsection (c) below, the aggregate of all Monthly Payments
(other than Balloon Payments) and any Assumed Monthly Payments, in each case net
of related Master Servicing Fees payable hereunder, that were due or deemed due,
as the case may be, in respect thereof on their respective Due Dates during the
related Collection Period and that were not paid by or on behalf of the related
Mortgagors or otherwise collected as of the close of business on the Business
Day before the Master Servicer Remittance Date; provided that, if an Appraisal
Reduction Amount exists with respect to any Required Appraisal Loan, then, in
the event of subsequent delinquencies thereon, the interest portion of the P&I
Advance in respect of such Required Appraisal Loan for the related Distribution
Date shall be reduced (it being herein acknowledged that there shall be no
reduction in the principal portion of such P&I Advance) to equal the product of
(i) the amount of the interest portion of such P&I Advance for such Required
Appraisal Loan for such Distribution Date without regard to this proviso,
multiplied by (ii) a fraction, expressed as a percentage, the numerator of which
is equal to the Stated Principal Balance of such Required Appraisal Loan
immediately prior to such Distribution Date, net of the related Appraisal
Reduction Amount, if any, and the denominator of which is equal to the Stated
Principal Balance of such Required Appraisal Loan immediately prior to such
Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. In addition, with respect to the
Mortgage Loans other than Mortgage Loans included in a Loan Pair, Nonrecoverable
P&I Advances shall be reimbursable pursuant to Section 3.05(a) out of general
collections on the Mortgage Pool on deposit in the Certificate Account. With
respect to a Mortgage Loan included in a Loan Pair, Nonrecoverable P&I Advances
shall be reimbursable pursuant to Section 3.05(f). The determination by the
Master Servicer, the Trustee or, if applicable the Fiscal Agent that it has made
a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would
constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's
Certificate delivered promptly (and, in any event, in the case of a proposed P&I
Advance by the Master Servicer, no less than five (5) Business Days prior to the
related Master Servicer Remittance Date) to the Trustee (or, if applicable,
retained thereby), the Fiscal Agent (or, if applicable, retained thereby), the
Depositor, the Rating Agencies, the Directing Certificateholder, the ES
Controlling Holder (if the ES Component Mortgage Loan is involved), the SB
Controlling Holder (if the SB Component Mortgage Loan is involved), the related
CBA B Note Holder (if the related CBA A/B Mortgage Loan is involved) or the
Wellbridge Controlling Holder and Wellbridge Companion Loan Noteholders (if the
Wellbridge A/B Mortgage Loan is involved), setting forth the basis for such
determination, together with (such determination is prior to the liquidation of
the related Loan or REO Property) a copy of an Appraisal of the related
Mortgaged Property or REO Property, as the case may be, which shall have been
performed within the twelve (12) months preceding such determination, and
further accompanied by any other information that the Master Servicer or the
Special Servicer may have obtained that supports such determination. The Trustee
and the Fiscal Agent shall deliver such Officer's Certificate as soon as
practicable after its determination that such P&I Advance would be
nonrecoverable. If such an Appraisal shall not have been required and performed
pursuant to the terms of this Agreement, the Master Servicer may, subject to its
reasonable and good faith determination that such Appraisal will demonstrate the
nonrecoverability of the related Advance, obtain an Appraisal for such purpose
at the expense of the Trust out of general collections. The Trustee and the
Fiscal Agent shall be entitled to rely on any determination of nonrecoverability
that may have been made by the Master Servicer with respect to a particular P&I
Advance, and the Master Servicer, the Trustee and the Fiscal Agent shall be
entitled to rely on any determination of nonrecoverability that may have been
made by the Special Servicer with respect to a particular P&I Advance in the
case of Specially Serviced Loans.
(d) As and to the extent permitted by Section 3.05(a) or Section
3.05(f) with respect to a Loan Pair, the Master Servicer, the Trustee and the
Fiscal Agent shall each be entitled to receive interest at the Reimbursement
Rate in effect from time to time, accrued on the amount of each P&I Advance made
thereby (out of its own funds), to the extent that such P&I Advance relates to a
Past Grace Period Loan when made, or remains outstanding when such Loan becomes
a Past Grace Period Loan, in which case such interest shall begin to accrue when
such Loan becomes a Past Grace Period Loan, for so long as such P&I Advance is
outstanding (or, in the case of Advance Interest payable to the Master Servicer,
if earlier, until the Late Collection of the delinquent principal and/or
interest in respect of which such P&I Advance was made has been received by the
Master Servicer). Such interest will be paid: first, out of any Default Charges
as set forth in Section 3.27; and second, at any time coinciding with or
following the reimbursement of such P&I Advance, out of general collections on
the Mortgage Loans and any REO Properties on deposit in the Certificate Account
or if a Loan Pair is involved out of general collections on deposit in the
related Loan Pair Custodial Account. As and to the extent provided by Section
3.05(a) or Section 3.05(f) with respect to a Loan Pair, the Master Servicer
shall reimburse itself, the Trustee or the Fiscal Agent, as appropriate, for any
P&I Advance made thereby as soon as practicable after funds available for such
purpose are deposited in the Certificate Account or, if a Loan Pair is involved
are deposited in the related Loan Pair Custodial Account, and in no event shall
interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to
which the corresponding Late Collection had been received as of the related date
on which such P&I Advance was made. Interest accrued on any P&I Advance made
under with respect to the Wellbridge A/B Mortgage Loan under this Section 4.03
shall be payable: (i) first, out of Default Charges collected on or in respect
of the Wellbridge Note B during the 12-month period in which such Advance is
reimbursed, (ii) second, out of Default Charges collected on or in respect of
the Wellbridge Senior Notes, pro rata during the 12-month period in which such
Advance is reimbursed, (iii) third, to the extent that the Default Charges
described in the immediately preceding clauses (i) and (ii) and are
insufficient, but only if such P&I Advance is being reimbursed at the same time
or if such P&I Advance has been previously reimbursed, out of any other
collections that were made on or in respect of the Wellbridge A/B Mortgage Loan
and (iv) solely with respect to the Wellbridge A/B Mortgage Loan, to the extent
that the Default Charges described in the immediately preceding clauses (i),
(ii) and (iii) are insufficient, but only if such P&I Advance is being
reimbursed at the same time or if such Advances has been previously reimbursed,
out of general collections on or in respect of the Mortgage Loans; provided that
interest on P&I Advances made with respect to any Wellbridge Senior Companion
Loan may be paid solely, pursuant to clauses (i), (ii) and (iii) above, from
Default Charges or other collections received by the Trust on or in respect of
the Wellbridge Senior Companion Loans included in the Wellbridge A/B Mortgage
Loan. Interest accrued on any P&I Advance made under with respect to a CBA A/B
Mortgage Loan under this Section shall be payable (unless required to be paid to
any Companion Loan Noteholder under any Co-Lender Agreement): (i) first, out of
Default Charges collected on or in respect of the related B Note during the same
Collection Period in which such P&I Advance is reimbursed, (ii) second, out of
Default Charges collected on or in respect of the related CBA Mortgage Loan, as
applicable, during the same Collection Period in which such P&I Advance is
reimbursed, (iii) third, to the extent that the Default Charges described in the
immediately preceding clauses (i) and (ii) are insufficient, but only if such
P&I Advance is being reimbursed at the same time or if such P&I Advance has been
previously reimbursed, out of any other collections that were made on or in
respect of the related CBA Mortgage Loan and (iv) solely with respect to the
related CBA Mortgage Loan to the extent that the Default Charges described in
the immediately preceding clauses (i), (ii) and (iii) are insufficient, but only
if such P&I Advance is being reimbursed at the same time or if such P&I Advance
has been previously reimbursed, out of general collections on or in respect of
the Mortgage Loans.
(e) With regard to such P&I Advances, the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent shall account for that part of
the P&I Advances which is attributable to Past Grace Period Loans, and that part
of the P&I Advances which is attributable to Within Grace Period Loans.
(f) Subject to Section 4.03(c), any P&I Advance made in respect of
the Wellbridge A/B Mortgage Loan shall be made only to the related Wellbridge
Notes that are then included in a securitization or a collateralized debt
obligation in which interests therein are issued or created (each, a "Wellbridge
Securitized Note"). If any proceeds of the Wellbridge A/B Mortgage Loan are
received or collected after expenses that are allocable under the related
Co-Lender Agreement to a Wellbridge Non-Securitized Note have been paid out of
one or more P&I Advances in respect of one or more Wellbridge Securitized Notes,
any such proceeds that are allocable pursuant to the related Co-Lender Agreement
to such Wellbridge Non-Securitized Note shall be applied first to reimburse the
related holder or holders of such Wellbridge Securitized Note or Notes for such
expense until such holder or holders have been reimbursed in full (in accordance
with the priorities set forth in the Wellbridge Co-Lender Agreement) prior to
any such proceeds being allocated to the holder of such Wellbridge
Non-Securitized Note.
SECTION 4.04 Allocation of Realized Losses and Additional Trust
Fund Expenses.
(a) On each Distribution Date, following the distributions to be
made to the Class ES Certificateholders on such date pursuant to Section
4.01(i), the Trustee shall determine with respect to the ES Component Mortgage
Loan the amount, if any, by which (i) the sum of (a) the ES Component Mortgage
Loan Senior Balance and (B) the ES Component Mortgage Loan Subordinate Balance
exceed (ii) the Stated Principal Balance of the ES Component Mortgage Loan that
will be outstanding immediately following such Distribution Date. If such excess
does exist with respect to the ES Component Mortgage Loan, then the ES Component
Mortgage Loan Subordinate Balance of the ES Component Mortgage Loan Subordinate
Components, beginning with the most subordinate of such components and
thereafter in reverse alphabetical order, shall be reduced until such excess or
the related ES Component Mortgage Loan Subordinate Balance of all the ES
Component Mortgage Loan Subordinate Components are reduced to zero (whichever
occurs first). On each Distribution Date, following the distributions to be made
to the Class SB Certificateholders on such date pursuant to Section 4.01(j), the
Trustee shall determine with respect to the SB Component Mortgage Loan the
amount, if any, by which (i) the sum of (A) the SB Component Mortgage Loan
Senior Balance and (B) the SB Component Mortgage Loan Subordinate Balance exceed
(ii) the Stated Principal Balance of the SB Component Mortgage Loan that will be
outstanding immediately following such Distribution Date. If such excess does
exist with respect to the SB Component Mortgage Loan, then the SB Subordinate
Mortgage Loan Subordinate Balance of the SB Component Mortgage Loan Subordinate
Components, beginning with the most subordinate of such components and
thereafter in reverse alphabetical order, shall be reduced until such excess or
the related SB Subordinate Mortgage Loan Subordinate Balance of all the SB
Component Mortgage Loan Subordinate Components are reduced to zero (whichever
occurs first). On each Distribution Date, following the distributions to the
Class WB Certificateholders to be made on such date pursuant to Section 4.01(k),
the Trustee shall determine the amount, if any, by which the (i) the Class
Principal Balance of the Class WB Certificates exceeds (ii) the Stated Principal
Balance of the Wellbridge Note B Loan that will be outstanding immediately
following such Distribution Date. If such excess does exist, then the Class
Principal Balance of the Class WB-D, Class WB-C, Class WB-B and Class WB-A
Certificates shall be reduced, sequentially in that order until such excess or
the related Class Principal Balance is been reduced to zero (whichever occurs
first). On each Distribution Date, following the distributions to be made to the
Regular Certificateholders, other than the Class ES, Class SB and Class WB
Certificateholders on such date pursuant to Section 4.01(b), the Trustee shall
determine the amount, if any, by which (i) the then aggregate Certificate
Principal Balance of the Sequential Pay Certificates exceeds (ii) the aggregate
Stated Principal Balance of the Mortgage Pool (less the ES Component Mortgage
Loan Subordinate Balance of the ES Component Mortgage Loan, the SB Component
Mortgage Loan Subordinate Balance of the SB Component Mortgage Loan and the
Stated Principal Balance of the Wellbridge Note B Loan) that will be outstanding
immediately following such Distribution Date. If such excess does exist and was
not allocated to the Class ES Certificates and the Class SB Certificates, as
applicable and as described above, then the Class Principal Balances of the
Class P, Class O, Class N, Class M, Class L, Class K, Class J, Class H, Class G,
Class F, Class E, Class D, Class C and Class B Certificates shall be reduced
sequentially, in that order in each case, until such excess or the related Class
Principal Balance is reduced to zero (whichever occurs first). If, after the
foregoing reductions, the amount described in clause (i) of the second preceding
sentence still exceeds the amount described in clause (ii) of the second
preceding sentence, then the respective Class Principal Balances of the Class
A-1 Certificates and Class A-2 Certificates shall be reduced, pro rata in
accordance with the relative sizes of the then outstanding Class Principal
Balances of such Classes of Certificates, until such excess or each such Class
Principal Balance is reduced to zero (whichever occurs first). Such reductions
in the Class Principal Balances of the respective Classes of the Sequential Pay
Certificates, the Class ES Certificates, the Class SB Certificates or the Class
WB Certificates, as applicable, shall be deemed to be allocations of Realized
Losses and Additional Trust Fund Expenses, to the extent not covered by
reductions in distributions of interest pursuant to the allocations set forth in
Section 4.01(b).
(b) With respect to any Distribution Date, any Realized Losses or
Additional Trust Fund Expenses allocated pursuant to Section 4.04(a) (other than
with respect to the Class ES Certificates and the Class SB Certificates) with
respect to such Distribution Date shall reduce the REMIC I Principal Balances of
the REMIC I Regular Interests as a write-off and shall be allocated among the
REMIC I Regular Interests in the same priority as the Class of Corresponding
Certificates (in the case of Realized Losses or Additional Trust Fund Expenses
on (i) the Class A-1 Certificates, first to the REMIC I Regular Interest LA-1-1,
second to the REMIC I Regular Interest LA-1-2 and REMIC I Regular Interest
LA-1-3, pro rata, third to the REMIC I Regular Interest LA-1-4 and REMIC I
Regular Interest LA-1-5, pro rata, fourth to the REMIC I Regular Interest LA-1-6
and REMIC I Regular Interest LA-1-7, pro rata, fifth to the REMIC I Regular
Interest LA-1-8 and REMIC I Regular Interest LA-1-9, pro rata, and then to the
REMIC I Regular Interest LA-1-10 and REMIC I Regular Interest LA-1-11, pro rata,
in each case, until reduced to zero, (ii) the Class A-2 Certificates, first to
the REMIC I Regular Interest LA-2-1 and REMIC I Regular Interest LA-2-2, pro
rata, and then to the REMIC I Regular Interest LA-2-3 and REMIC I Regular
Interest LA-2-4, pro rata, in each case, until reduced to zero, (iii) the Class
B Certificates to the REMIC I Regular Interest LB-1 and REMIC I Regular Interest
LB-2, pro rata, until reduced to zero, (iv) the Class C Certificates, to the
REMIC I Regular Interest LC-1 and REMIC I Regular Interest LC-2, pro rata, until
reduced to zero, (v) the Class D Certificates, to the REMIC I Regular Interest
LD-1 and REMIC I Regular Interest LD-2, pro rata, until reduced to zero, (vi)
the Class E Certificates, to the REMIC I Regular Interest LE-1 and REMIC I
Regular Interest LE-2, pro rata, until reduced to zero, (vii) the Class F
Certificates, to the REMIC I Regular Interest LF-1 and the REMIC I Regular
Interest LF-2, pro rata, until reduced to zero, (viii) the Class G Certificates,
first to the REMIC I Regular Interest LG-1 and REMIC I Regular Interest LG-2,
pro rata, and then to the REMIC I Regular Interest LG-3 and REMIC I Regular
Interest LG-4, pro rata, in each case, until reduced to zero, (ix) the Class H
Certificates, first to the REMIC I Regular Interest LH-1 and the REMIC I Regular
Interest LH-2, pro rata, and then to the REMIC Regular Interest LH-3 and REMIC I
Regular Interest LH-4, pro rata, in each case, until reduced to zero, (x) the
Class J Certificates, first to the REMIC I Regular Interest LJ-1 and REMIC I
Regular Interest LJ-2, pro rata, and then to the REMIC I Regular Interest LJ-3
and REMIC I Regular Interest LJ-4, pro rata, in each case, until reduced to
zero, (xi) the Class K Certificates, first to the REMIC I Regular Interest LK-1
and REMIC I Regular Interest LK-2, pro rata, and then to the REMIC I Regular
Interest LK-3 and REMIC I Regular Interest LK-4, pro rata, in each case, until
reduced to zero and (xii) the Class L Certificates, to the REMIC I Regular
Interest LL-1 and REMIC I Regular Interest LL-2, pro rata, until reduced to
zero).
Realized Losses or Additional Trust Fund Expenses allocable to the
ES Component Mortgage Loan will, after the Uncertificated Principal Balances of
the Classes of Class ES Certificates have been reduced to zero, reduce the
related Uncertificated Principal Balances of the related ES Component Mortgage
Loan REMIC Senior Regular Interest corresponding to the Corresponding ES
Component Mortgage Loan Senior Component.
Realized Losses or Additional Trust Fund Expenses allocable to the
SB Component Mortgage Loan will, after the Uncertificated Principal Balances of
the Classes of Class SB Certificates have been reduced to zero, reduce the
related Uncertificated Principal Balances of the related SB Component Mortgage
Loan REMIC Senior Regular Interest corresponding to the Corresponding SB
Component Mortgage Loan Senior Component.
For the avoidance of doubt, no Additional Trust Fund Expenses and/or
Realized Losses suffered by the Trust Fund shall be allocable (x) to the Class
ES Certificates if such Additional Trust Fund Expenses and/or Realized Losses
were not attributable to the ES Component Mortgage Loan, (y) to the Class SB
Certificates if such Additional Trust Fund Expenses and/or Realized Losses were
not attributable to the SB Component Mortgage Loan, or (z) to the Class WB
Certificates if such Additional Trust Fund Expenses and/or Realized Losses were
not attributable to the Wellbridge Note B Loan.
SECTION 4.05 Interest Reserve Account.
The Trustee shall establish and maintain the Interest Reserve
Account in the Trustee's name for the benefit of the Certificateholders. The
Interest Reserve Account may be a sub-account of the Distribution Account. The
Interest Reserve Account shall be established and maintained, at all times, as
an Eligible Account, which the Trustee may (but shall not be obligated to)
invest only in Permitted Investments in accordance with Section 3.06. On each
Master Servicer Remittance Date occurring in February and each Master Servicer
Remittance Date in January of any year which is not a leap year, the Trustee
shall withdraw (i) from the REMIC I Distribution Account, in respect of each
Mortgage Loan which accrues interest on an Actual/360 Basis (other than the ES
Component Mortgage Loan and the SB Component Mortgage Loan), and (ii) from the
Component Mortgage Loan REMIC Distribution Account, in respect of the ES
Component Mortgage Loan Senior Component and deposit into the Interest Reserve
Account, an amount equal to one (1) day's interest at the related Net Mortgage
Rate on the Stated Principal Balance of each such Mortgage Loan or the ES
Component Mortgage Loan Senior Balance of the ES Component Mortgage Loan REMIC
Senior Component or the SB Component Mortgage Loan Senior Balance of the SB
Component Mortgage Loan Senior Component as of the Due Date in the month
preceding the month in which such Master Servicer Remittance Date occurs, to the
extent a Monthly Payment or P&I Advance is made in respect thereof (all amounts
so deposited in any consecutive January (if applicable) and February, "Withheld
Amounts"). On the Master Servicer Remittance Date in March of each calendar
year, the Trustee shall transfer to the REMIC I Distribution Account the
aggregate of all Withheld Amounts on deposit in the Interest Reserve Account
with respect to clause (i) above and to the Component Mortgage Loan REMIC
Distribution Account, the aggregate of all Withheld Amounts on deposit in the
Interest Reserve Account with respect to clause (ii) above.
SECTION 4.06 [RESERVED]
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-24; provided that any of
the Certificates may be issued with appropriate insertions, omissions,
substitutions and variations, and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
The Certificates will be issuable in registered form only; provided, however,
that in accordance with Section 5.03 beneficial ownership interests in the REMIC
II Regular Certificates shall initially be held and transferred through the
book-entry facilities of the Depository. The Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class ES, Class SB and Class WB
Certificates will be issuable in denominations corresponding to initial
Certificate Principal Balances or Certificate Notional Amounts, as the case may
be, as of the Closing Date of not less than $100,000 (or, with respect to the
Class A Certificates, $10,000 and, with respect to the Class X Certificates,
$1,000,000) and any whole dollar denomination in excess thereof; provided,
however, that a single Certificate of each Class thereof may be issued in a
different denomination. The Class A-1 and Class A-2 will be issuable in
denominations corresponding to initial Certificate Principal Balances as of the
Closing Date of not less than $10,000, the Class B, Class C, Class D, Class E
and Class F Certificates will be issuable in denominations corresponding to
initial Certificate Principal Balances (or Certificate Notional Amount), as the
case may be, of not less than $100,000 and with respect to the Class XC, Class
XP-1 and XP-2 Certificates $1,000,000 and whole dollar denomination in excess
thereof; provided, however, that a single Certificate of each Class thereof may
be issued in a different denomination. Each Class of Residual Certificates will
be issuable only in a denomination representing the entire Class. 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 Principal 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 Trustee in its capacity as trustee hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Trustee 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
Certificate Registrar 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;
provided that the Certificates, issued on the Closing Date shall, in any event,
be dated the Closing Date.
(c) Any Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, or as may, consistently
herewith, be determined by the officers executing such Certificates, as
evidenced by their execution thereof.
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
(located as of the Closing Date at 000 Xxxxx XxXxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 60603) may prescribe, the Certificate Registrar shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided. The Trustee is hereby initially appointed (and hereby agrees to
act in accordance with the terms hereof) as Certificate Registrar for the
purpose of registering Certificates and transfers and exchanges of Certificates
as herein provided. The Trustee may appoint, by a written instrument delivered
to the Depositor, the Master Servicer, the Special Servicer and the REMIC
Administrator, any other bank or trust company to act as Certificate Registrar
under such conditions as the predecessor Certificate Registrar may prescribe,
provided that the Trustee shall not be relieved of any of its duties or
responsibilities hereunder as Certificate Registrar by reason of such
appointment. If the Trustee resigns or is removed in accordance with the terms
hereof, the successor trustee shall immediately succeed to its predecessor's
duties as Certificate Registrar. The Depositor, the Master Servicer, the Special
Servicer and the REMIC Administrator shall have the right to inspect the
Certificate Register or to obtain a copy thereof at all reasonable times, and to
rely conclusively upon a certificate of the Certificate Registrar as to the
information set forth in the Certificate Register. Upon request, the Trustee
shall promptly inform, or cause the Certificate Registrar to inform, the Master
Servicer or the Special Servicer, as applicable, of the identity of all
Certificateholders of the Controlling Class.
If Certificateholders representing more than 25% of any Class of
Certificates (hereinafter referred to as "applicants") apply in writing to the
Trustee, and such application states that the applicants desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates and is accompanied by a copy of the communication
which such applicants propose to transmit, then the Trustee shall, within five
(5) Business Days after the receipt of such application, afford such applicants
access during normal business hours to the most recent list of
Certificateholders held by the Trustee. If the Trustee is no longer the
Certificate Registrar and such a list is as of a date more than ninety (90) days
prior to the date of receipt of such applicants' request, the Trustee shall
promptly request from the Certificate Registrar a current list as provided
above, and shall afford such applicants access to such list promptly upon
receipt.
Every Certificateholder, by receiving and holding such list, agrees
with the Certificate Registrar and the Trustee that neither the Certificate
Registrar nor the Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
(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 the initial transfer thereof) is to be made
in reliance upon an exemption from the Securities Act, and under the applicable
state securities laws, then either: (i) the Certificate Registrar shall require
that the transferee deliver to the Certificate Registrar an investment
representation letter (the "Investment Representation Letter") substantially in
the form of Exhibit B attached hereto, which Investment Representation Letter
shall certify, among other things, that the transferee is an institutional
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act (an "Institutional Accredited Investor")
or a "qualified institutional buyer" as defined in Rule 144A under the
Securities Act (a "Qualified Institutional Buyer"), and the Certificate
Registrar may also require that the transferee deliver to the Certificate
Registrar an Opinion of Counsel if such transferee is not a Qualified
Institutional Buyer or (ii) if the certifications described in the preceding
clause (i) cannot be provided, (a) the Certificate Registrar shall require an
Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from registration or
qualification under the Securities Act, applicable state securities laws and
other relevant laws, which Opinion of Counsel shall not be an expense of the
Trust Fund, the Certificate Registrar, the Depositor or the Trustee and (b) the
Certificate Registrar shall require the transferor to execute a certification in
form and substance satisfactory to the Certificate Registrar setting forth the
facts surrounding such transfer; provided, however, that a transfer of a
Non-Registered Certificate of any such Class may be made to a trust if the
transferor provides to the Certificate Registrar and to the Trustee a
certification that interests in such trust may only be transferred subject to
requirements substantially to the effect set forth in this Section 5.02. The
Master Servicer will furnish, or cause to be furnished, upon the request of any
Holder of Non-Registered Certificates, to a prospective purchaser of such
Non-Registered Certificates who is a Qualified Institutional Buyer, such
information relating to the Mortgage Loans that are in its possession and as is
specified in paragraph (d)(4) of Rule 144A with respect to the Trust Fund,
unless, at the time of such request, the entity with respect to which such
information is to be provided is subject to the reporting requirements of
Section 15(d) of the Exchange Act. None of the Depositor, the Trustee, the
Master Servicer or the Certificate Registrar is obligated to register or qualify
any Class of Non-Registered Certificates under the Securities Act or any other
securities law or to take any action not otherwise required under this Agreement
to permit the transfer of any Non-Registered Certificate without registration or
qualification. Any Holder of a Non-Registered Certificate desiring to effect
such a transfer shall, and does hereby agree to, indemnify the Depositor, the
Trustee, the Master Servicer and the Certificate Registrar against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws. Unless the Certificate Registrar determines
otherwise in accordance with applicable law and the rules and procedures of, or
applicable to, the Depository (the "Depository Rules"), transfers of a
beneficial interest in a Book-Entry Certificate representing an interest in a
Non-Registered Certificate that is not rated in one of the top four categories
by a nationally recognized statistical rating organization to (i) an
Institutional Accredited Investor will require delivery in the form of a
Definitive Certificate and the Certificate Registrar shall register such
transfer only upon compliance with the foregoing provisions of this Section
5.02(b) or (ii) a Qualified Institutional Buyer may only be effectuated by means
of an "SRO Rule 144A System" approved for such purpose by the Commission.
(c) With respect to the ERISA Restricted Certificates and Residual
Certificates: no sale, transfer, pledge or other disposition by any Holder 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 E 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 Section 4975 of 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 (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 (except with respect
to a Residual Certificate) 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 Prohibited Transaction Class
Exemption 95-60 or (ii) except for the Residual Certificates (which may not be
transferred to a Holder who does not make the representation described in clause
(i)(a) or (i)(b)), if such Certificate is presented for registration in the name
of a purchaser or transferee that is any of the foregoing, any Opinion of
Counsel or other certification as the Certificate Registrar may reasonably
require and 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 result in the assets of the Trust Fund
being deemed to be "plan assets" and subject to the fiduciary responsibility
provisions of ERISA, the prohibited transaction provisions of the Code or the
provisions of any Similar Law, 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
Master Servicer, the Special Servicer, the Underwriters, 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 Agreement. The Certificate Registrar shall not register
the sale, transfer, pledge or other disposition of any such Certificate unless
the Certificate Registrar has received either the representation letter
described in clause (i) above or, with respect to the ERISA Restricted
Certificates, the Opinions of Counsel or other certification described in clause
(ii) above. The costs of any of the foregoing representation letters,
certifications or Opinions of Counsel shall not be borne by any of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Underwriters, the Placement Agent, the Certificate Registrar or the
Trust Fund. With respect to transfers of Book-Entry Certificates only, to the
extent the purchase or holding of a Certificate described in this Section
5.02(c) would be restricted by ERISA, the Code or Similar Law, each Certificate
Owner of such Certificate shall be deemed to represent that it is not a Person
specified in clause (i)(a) or (i)(b) above and therefore shall not be required
pursuant to this Section 5.02(c) to deliver to the Certificate Registrar the
representation letter in the form of Exhibit E attached hereto described in
clause (a) above, or the Opinion of Counsel or other certification described in
clause (ii) above. Any transfer, sale, pledge or other disposition of any such
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
Master Servicer 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 Master Servicer, the
Special Servicer or the Mortgage Loans reasonably necessary to the provision of
an Opinion of Counsel described in this Section 5.02(c).
(d) (i) Each Person who has or who acquires any Ownership Interest
in a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions
and to have irrevocably authorized the Trustee under clause (ii) 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) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee and the REMIC Administrator of any
change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate (other than in connection with
the initial issuance thereof or the transfer thereof among the
Depositor and its Affiliates), the Certificate Registrar shall
require delivery to it, and shall not register the Transfer of any
Residual Certificate until its receipt of, an affidavit and
agreement substantially in the form attached hereto as Exhibit C-1
(a "Transfer Affidavit and Agreement") from the proposed Transferee,
in form and substance satisfactory to the Certificate Registrar,
representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in the Residual Certificate that is the subject
of the proposed Transfer as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it
retains its Ownership Interest in a Residual Certificate it will
endeavor to remain a Permitted Transferee, and that it has reviewed
the provisions of this Section 5.02(d) and agrees to be bound by
them.
(c) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an
Ownership Interest in a Residual Certificate to such proposed
Transferee shall be effected.
(D) Except in connection with the initial issuance of the
Residual Certificates or any transfer thereof among the Depositor
and its Affiliates, each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (1) to require a
Transfer Affidavit and Agreement from any prospective Transferee to
whom such Person attempts to transfer its Ownership Interest in such
Residual Certificate and (2) not to transfer its Ownership Interest
in such Residual Certificate unless it provides to the Certificate
Registrar a certificate substantially in the form attached hereto as
Exhibit C-2 stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted
Transferee.
(ii) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(d), then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 5.02(d) shall be restored,
to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Master Servicer, the Special
Servicer, the REMIC Administrator or the Certificate Registrar shall be
under any liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by this Section 5.02(d)
or for making any payments due on such Certificate to the Holder thereof
or for taking any other action with respect to such Holder under the
provisions of this Agreement.
(iii) The REMIC Administrator shall make available to the Internal
Revenue Service and those Persons specified by the REMIC Provisions all
information 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 a nominee, agent or middleman
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. The Person holding such
Ownership Interest shall be responsible for the reasonable compensation of
the REMIC Administrator for providing such information.
(e) 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 Depository Rules, 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 Certificate for a Definitive Certificate or Certificates. Following a
proper request for transfer or exchange, the Certificate Registrar shall,
execute and deliver at such offices 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.
(f) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate 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 Institutional Accredited
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 Institutional Accredited Investor within fourteen (14) days
after notice of such determination and each Certificateholder by its acceptance
of a Certificate authorizes the Certificate Registrar to take such action.
(g) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange
of Certificates, but the Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates. In
addition, 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.
(i) Subsequent to the initial issuance of the Certificates, the
Trustee shall be responsible for the preparation of physical Certificates in
connection with any transfer or exchange; provided that the correct form of
Certificate of each Class shall be provided by the Depositor to the Trustee on
diskette on or about the Closing Date. All Certificates surrendered for transfer
and exchange shall be physically canceled by the Certificate Registrar, and the
Certificate Registrar shall hold or destroy such canceled Certificates in
accordance with its standard procedures.
(j) The Certificate Registrar shall be required to provide the
Depositor and the REMIC Administrator with an updated copy of the Certificate
Register on or about January 1 of each year, commencing January 1, 2004, and
shall be required to provide the Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator with an updated copy of the Certificate
Register at other times promptly upon written request therefor.
(k) If a Person is acquiring any Non-Registered Certificate or
interest therein as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee (or such Certificate Owner) to confirm that,
it has (i) sole investment discretion with respect to each such account and (ii)
full power to make the acknowledgments, representations, warranties,
certification and agreements with respect to each such account as set forth in
subsections (b), (c) and (d), as applicable, of this Section 5.02.
SECTION 5.03 Book-Entry Certificates.
(a) The Class A-1, Class A-2, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class M, Class N, Class O, Class P,
Class XC, Class XP-1, Class XP-2, Class ES-A, Class ES-B, Class ES-C, Class
ES-D, Class ES-E, Class ES-F, Class ES-G, Class ES-H, Class SB-A, Class SB-B,
Class SB-C, Class SB-D, Class SB-E, Class WB-A, Class WB-B, Class WB-C and Class
WB-D 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 subsection
(c) below, shall not be entitled to fully registered, physical Certificates
("Definitive Certificates") in respect of such Ownership Interests. All
transfers by Certificate Owners of their respective Ownership Interests in the
Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing each
such Certificate Owner. Each Depository Participant shall only transfer the
Ownership Interests in the Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures. Neither the Certificate Registrar nor the
Trustee shall have any responsibility to monitor or restrict the transfer of
Ownership Interests in Certificates through the book-entry facilities of the
Depository.
(b) The Depositor, the Trustee, the Fiscal Agent, the Master
Servicer, the Special Servicer, the REMIC Administrator 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 Trustee may establish a reasonable record
date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
If any party hereto requests from the Depository a list of the Depository
Participants in respect of any Class or Classes of the Book-Entry Certificates,
the cost thereof shall be borne by the party on whose behalf such request is
made (but in no event shall any such cost be borne by the Trustee).
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to any Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to any Class of the Book-Entry
Certificates, the Certificate Registrar shall notify all affected Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of any Class of the
Book-Entry Certificates by the Depository, accompanied by registration
instructions for registration of transfer, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, the appropriate Definitive
Certificates to the Certificate Owners identified in such instructions. None of
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the REMIC Administrator or the Certificate Registrar shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such instructions.
(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) 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.
(f) 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 Depository Rules and this Section 5.03(f).
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 this Section 5.03(f), (ii) written instructions given in accordance
with Depository Rules directing the Certificate Registrar to credit or cause to
be credited to another account a beneficial interest in the related Book-Entry
Certificate, in an amount equal to the Denomination of the Definitive
Certificate to be so transferred, (iii) a written order given in accordance with
the Depository Rules containing information regarding the account to be credited
with such beneficial interest and (iv) if the affected Certificate is a
Non-Registered Certificate an Investment Representation Letter from the
transferee to the effect that such transferee is a Qualified Institutional
Buyer, 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 shall instruct the Depository or the custodian holding such Book-Entry
Certificate on behalf of the Depository to increase the Denomination of the
related Book-Entry Certificate by the Denomination of the Definitive Certificate
to be so transferred, and to 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
reasonably 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 Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Class and like Percentage Interest.
Upon the issuance of any new Certificate under this Section, the Trustee and the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee and the
Certificate Registrar) connected therewith. Any replacement Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence of
ownership in the applicable REMIC created hereunder, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
SECTION 5.05 Persons D eemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the REMIC Administrator, the Certificate Registrar and any agents of any
of them may treat the person in whose name any Certificate is registered as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Section 4.01 and for all other purposes whatsoever, and none of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the Fiscal Agent, the
REMIC Administrator, the Certificate Registrar or any agent of any of them shall
be affected by notice to the contrary.
SECTION 5.06 Certification by Certificate Owners.
(a) Each Certificate Owner is hereby deemed by virtue of its
acquisition of an Ownership Interest in the Book-Entry Certificates to agree to
comply with the applicable transfer requirements of Sections 5.02(b) and
5.02(c).
(b) To the extent that under the terms of this Agreement, it is
necessary to determine whether any Person is a Certificate Owner, the Trustee
shall make such determination based on a certificate of such Person which shall
specify, in reasonable detail satisfactory to the Trustee, the Class and
Certificate Principal Balance or Certificate Notional Amount, as the case may
be, of the Book-Entry Certificate beneficially owned, the value of such Person's
interest in such Certificate and any intermediaries through which such Person's
Ownership Interest in such Book-Entry Certificate is held; provided, however,
that the Trustee shall not knowingly recognize such Person as a Certificate
Owner if such Person, to the knowledge of a Responsible Officer of the Trustee,
acquired its Ownership Interest in a Book-Entry Certificate in violation of
Section 5.02(b) and/or Section 5.02(c), or if such Person's certification that
it is a Certificate Owner is in direct conflict with information obtained by the
Trustee from the Depository, Depository Participants, and/or indirect
participating brokerage firms for which a Depository Participant acts as agent,
with respect to the identity of a Certificate Owner. The Trustee shall exercise
its reasonable discretion in making any determination under this Section 5.06(b)
and shall afford any Person providing information with respect to its beneficial
ownership of any Certificates an opportunity to resolve any discrepancies
between the information provided and any other information available to the
Trustee.
SECTION 5.07 Regarding the Identification of Certain
Certificateholders.
(a) For purposes of determining the identity of the holders of the
Class XC, Class XP-1, Class XP-2, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class ES, Class
SB and Class WB Certificates to whom certain reports and other information are
required to be delivered hereunder, the Trustee and the Master Servicer may
rely, with respect to any such Certificates outstanding in book-entry form, on a
certification, given to the Trustee and provided to the Master Servicer, by any
Person that such person is such a holder entitled to receive such reports or
information hereunder. With respect to the Class A, Class B, Class C, Class R-I,
and Class R-II Certificates, from time to time upon the request of the Master
Servicer, the Trustee shall provide the Master Servicer with a list of the
Certificateholders recorded in the Certificate Register.
ARTICLE VI
THE DEPOSITOR, THE MORTGAGE LOAN SELLER, THE MASTER SERVICER,
THE SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
SECTION 6.01 Liability of the Depositor, the Master Servicer, the
Special Servicer and the REMIC Administrator.
The Depositor, the Master Servicer, the Special Servicer and the
REMIC Administrator shall be liable in accordance herewith only to the extent of
the respective obligations specifically imposed upon and undertaken by the
Depositor, the Master Servicer, the Special Servicer and the REMIC Administrator
herein.
SECTION 6.02 Merger, Consolidation or Conversion of the Depositor,
the Master Servicer, the Special Servicer or the
REMIC Administrator.
(a) Subject to the following paragraph, the Depositor, the Master
Servicer, the Special Servicer and the REMIC Administrator each will keep in
full effect its existence, rights and franchises as a corporation or other
business organization under the laws of the jurisdiction of its organization,
and each will obtain and preserve its qualification to do business as a foreign
corporation or otherwise 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 Master Servicer, the Special Servicer and the
REMIC Administrator each may be merged or consolidated with or into any Person,
or transfer all or substantially all of its assets (which, as to the Master
Servicer and the Special Servicer, may be limited to all or substantially all of
its assets relating to the business of mortgage loan servicing) to any Person,
in which case any Person resulting from any merger or consolidation to which the
Depositor, the Master Servicer, the Special Servicer or the REMIC Administrator
shall be a party, or any Person succeeding to the business of the Depositor, the
Master Servicer, the Special Servicer or the REMIC Administrator, shall be the
successor of the Depositor, the Master Servicer, the Special Servicer or the
REMIC Administrator, as the case may be, hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that no
successor or surviving Person shall succeed to the rights of the Master Servicer
or the Special Servicer, unless such succession will not result in any
downgrade, qualification (if applicable) or withdrawal of the rating then
assigned by any Rating Agency to any Class of Certificates (as confirmed in
writing).
SECTION 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer, the REMIC
Administrator and Others.
None of the Depositor, the Master Servicer, the Special Servicer,
the REMIC Administrator or any director, officer, employee or agent of any of
the foregoing shall be under any liability to the Trust, the Certificateholders
or any Companion Loan Noteholders for any action taken, or not taken, in good
faith pursuant to this Agreement, or for errors in judgment; provided, however,
that this provision shall not protect the Depositor, the Master Servicer, the
Special Servicer, the REMIC Administrator or any such other Person against any
breach of a representation or warranty made herein, or against any expense or
liability specifically required to be borne thereby pursuant to the terms
hereof, or against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of obligations
or duties hereunder, or by reason of negligent or reckless disregard of such
obligations and duties. The Depositor, the Master Servicer, the Special
Servicer, the REMIC Administrator and any director, manager, member, officer,
employee or agent (including Sub-Servicers) of any of the foregoing may rely in
good faith on any document of any kind which, prima facie, is properly executed
and submitted by any Person respecting any matters arising hereunder. The
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and any director, manager, member, officer, employee or agent (including
Sub-Servicers) of any of the foregoing shall be indemnified and held harmless by
the Trust against any loss, liability or expense, including reasonable
attorneys' fees, expenses of counsel and expenses of litigation, incurred in
connection with any claims or legal action relating to this Agreement, the
Certificates or any asset of the Trust, other than any loss, liability or
expense: (i) specifically required to be borne by such Person pursuant to the
terms hereof, including, without limitation, Section 10.01(h); or (ii) which was
incurred in connection with claims against such party resulting from (A) any
breach of a representation or warranty made herein by such party, (B) willful
misfeasance, bad faith, recklessness or negligence in the performance of
obligations or duties hereunder by such party, or from negligent disregard of
such obligations or duties, or (C) any violation by such party of any state or
federal securities law. None of the Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator shall be under any obligation to appear in,
prosecute or defend any legal action unless such action is related to its
respective duties under this Agreement and, except in the case of a legal action
contemplated by Section 3.22, in its opinion does not involve it in any ultimate
expense or liability; provided, however, that the Depositor, the Master
Servicer, the Special Servicer or the REMIC Administrator may in its discretion
undertake any such action which it may deem necessary or desirable with respect
to the enforcement and/or protection of the rights and duties of the parties
hereto and the interests of the Certificateholders (or if a Loan Pair is
affected, the rights of the Certificateholders and the related Companion Loan
Noteholders (as a collective whole)); provided, however, that if a Loan Pair
and/or a Companion Loan Noteholder is involved, such expenses, costs and
liabilities shall be payable out of the related Loan Pair Custodial Account and
shall also be payable out of the Certificate Account if amounts on deposit in
the related Loan Pair Custodial Account are insufficient therefor hereunder so
long as such expenses, costs and liabilities do not relate solely to a Companion
Loan. In such event, the legal expenses and costs of such action, and any
liability resulting therefrom, shall be expenses, costs and liabilities of the
Trust, and the Depositor, the Master Servicer, the Special Servicer and the
REMIC Administrator each shall be entitled to the direct payment of such
expenses or to be reimbursed therefor from the Certificate Account as provided
in Section 3.05(a) (or, if and to the extent the matter relates solely to a
Companion Loan, out of the related Loan Pair Custodial Account).
SECTION 6.04 Master Servicer, Special Servicer and REMIC
Administrator Not to Resign.
None of the Master Servicer, the Special Servicer or the REMIC
Administrator shall be permitted to resign from the obligations and duties
hereby imposed on it, except (i) upon the appointment of, and the acceptance of
such appointment by, a successor thereto which is reasonably acceptable to the
Trustee and the Directing Certificateholder and the receipt by the Trustee of
written confirmation from each and every Rating Agency to the effect that such
resignation and appointment will not result in the downgrade, qualification (if
applicable) or withdrawal of any rating then assigned by such Rating Agency to
any Class of Certificates, or (ii) upon determination that such obligations and
duties hereunder are no longer permissible under applicable law or are in
material conflict by reason of applicable law with any other activities carried
on by it, the other activities of the Master Servicer, Special Servicer or REMIC
Administrator, as the case may be, so causing such a conflict being of a type
and nature carried on by the Master Servicer, Special Servicer or REMIC
Administrator, as the case may be, at the date of this Agreement. Any such
determination of the nature described in clause (ii) of the preceding sentence
permitting the resignation of the Master Servicer, the Special Servicer or the
REMIC Administrator, as the case may be, shall be evidenced by an Opinion of
Counsel to such effect which shall be rendered by Independent counsel, be
addressed and delivered to the Trustee and the Rating Agencies and be paid for
by the resigning party. No such resignation for either reason shall become
effective until the Trustee or other successor shall have assumed the
responsibilities and obligations of the resigning party hereunder. All costs and
expenses of the Trustee and the Trust (including, without limitation, any costs
or expenses of any party hereto reimbursable out of the Trust Fund) in
connection with any such resignation (including, without limitation, any
requisite transfer of servicing) shall be paid for, as incurred, by the
resigning party.
Consistent with the foregoing, none of the Master Servicer, the
Special Servicer or the REMIC Administrator shall be permitted, except as
expressly provided herein, to assign or transfer any of its rights, benefits or
privileges hereunder to any other Person, or delegate to or subcontract with, or
authorize or appoint any other Person to perform any of the duties, covenants or
obligations to be performed by it hereunder. If, pursuant to any provision
hereof, the duties of the Master Servicer, the Special Servicer or the REMIC
Administrator are transferred to a successor thereto, then, subject to Section
3.11(a) and Section 3.22, the entire amount of compensation payable to the
Master Servicer, the Special Servicer or the REMIC Administrator, as the case
may be, pursuant hereto shall thereafter be payable to such successor.
SECTION 6.05 Rights of the Depositor and the Trustee in Respect
of the Master Servicer, the Special Servicer and the
REMIC Administrator.
The Master Servicer, the Special Servicer and the REMIC
Administrator each shall afford the Depositor and the Trustee, upon reasonable
notice, during normal business hours access to all records maintained by the
Master Servicer, the Special Servicer or the REMIC Administrator, as the case
may be, in respect of its rights and obligations hereunder and access to such of
its officers as are responsible for such obligations. Upon reasonable request,
the Master Servicer, the Special Servicer and the REMIC Administrator each shall
furnish the Depositor and the Trustee with its most recent financial statements,
or in the case of the Special Servicer, publicly available financial statements
of its corporate parent, and such other publicly available information directly
related to the servicing of the Loans or to its ability to perform its
obligations hereunder as it possesses, and which it is not prohibited by law or,
to the extent applicable, binding obligations to third parties with respect to
confidentiality from disclosing, regarding its business, affairs, property and
condition, financial or otherwise; provided that neither the Depositor nor the
Trustee may disclose the contents of any information that is not available
publicly to non-affiliated third parties (other than their duly authorized
representatives which include without limitation attorneys and/or accountants)
unless the Depositor or the Trustee, as applicable, is required to do so under
applicable securities law or is compelled to do so as a matter of law. The
Depositor may, but is not obligated to, enforce the obligations of the Master
Servicer, the Special Servicer and the REMIC Administrator hereunder and may,
but is not obligated to, perform, or cause a designee to perform, any defaulted
obligation of the Master Servicer, the Special Servicer or the REMIC
Administrator hereunder or, in connection with a default thereby, exercise the
rights of the Master Servicer, the Special Servicer or the REMIC Administrator
hereunder; provided, however, that none of the Master Servicer, the Special
Servicer or the REMIC Administrator shall be relieved of any of its obligations
hereunder by virtue of such performance by the Depositor or its designee. The
Depositor shall not have any responsibility or liability for any action or
failure to act by the Master Servicer, the Special Servicer or the REMIC
Administrator and is not obligated to supervise the performance of the Master
Servicer, the Special Servicer or the REMIC Administrator under this Agreement
or otherwise.
ARTICLE VII
DEFAULT
SECTION 7.01 Events of Default.
(a) "Event of Default", wherever used herein, unless the context
otherwise requires, means any one of the following events:
(i) any failure by the Master Servicer (A) to deposit into the
Certificate Account or a Loan Pair Custodial Account any amount required
to be so deposited under this Agreement which continues unremedied for
three (3) Business Days following the date on which such deposit was first
required to be made, but in no event later than one (1) day before the
related Distribution Date, or (B) to deposit into, or to remit to the
Trustee for deposit into, the Distribution Account on any Master Servicer
Remittance Date, the full amount of any Master Servicer Remittance Amount
and Withheld Amounts, respectively, required to be so deposited or
remitted under this Agreement on such date; or
(ii) any failure by the Special Servicer to deposit into, or to
remit to the Master Servicer for deposit into, the Certificate Account or
a Loan Pair Custodial Account or the applicable REO Account any amount
required to be so deposited or remitted under this Agreement which
continues unremedied for three (3) Business Days following the date on
which such deposit or remittance was first required to be made, but in no
event later than two (2) days before the related Distribution Date; or
(iii) any failure by the Master Servicer to remit to the Trustee for
deposit into the Distribution Account, on any Master Servicer Remittance
Date, the full amount of P&I Advances required to be made on such date
unless wired by 10:00 a.m. on the Distribution Date; provided, however,
that if the Master Servicer fails to make any deposit contemplated by this
Section 7.01(a)(iii), including any P&I Advance, which deposit is required
to be made by the Master Servicer on any Master Servicer Remittance Date
(without regard to any grace period), then the Master Servicer shall pay
to the Trustee, for the account of the Trustee, interest on such late
remittance at the Prime Rate from and including such Master Servicer
Remittance Date to but excluding the related Distribution Date; or
(iv) any failure by the Master Servicer to timely make any Servicing
Advance required to be made by it pursuant to this Agreement, which
failure continues unremedied for a period of three (3) Business Day
following the date on which notice shall have been given to the Master
Servicer by the Trustee as provided in Section 3.11(f); or
(v) any failure by the Special Servicer to timely direct the Master
Servicer to make any Servicing Advance (including any Emergency Advance)
required to be made by the Master Servicer at its direction pursuant to
this Agreement, which failure is not remedied by providing direction to
the Master Servicer within three (3) Business Days following the date on
which notice has been given to the Special Servicer by the Trustee as
provided in Section 3.11(f); or
(vi) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements thereof contained in this Agreement, which
failure continues unremedied for a period of thirty (30) days after the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Master Servicer or the Special
Servicer, as the case may be, by any other party hereto, or to the Master
Servicer or the Special Servicer, as the case may be, with a copy to each
other party hereto, by the Holders of Certificates entitled to at least
25% of the Voting Rights; provided, however, that if such covenant or
agreement is capable of being cured and the Master Servicer or Special
Servicer, as applicable, is diligently pursuing such cure, such thirty
(30) day period shall be extended for an additional sixty (60) days; or
(vii) any failure on the part of the REMIC Administrator duly to
observe or perform in any material respect any of the covenants or
agreements thereof contained in this Agreement, which failure continues
unremedied for a period of thirty (30) days after the date on which
written notice of such failure, requiring the same to be remedied, shall
have been given to the REMIC Administrator by any other party hereto, or
to the REMIC Administrator, with a copy to each other party hereto, by the
Holders of Certificates entitled to at least 25% of the Voting Rights;
provided, however, that if such covenant or agreement is capable of being
cured and the REMIC Administrator is diligently pursuing such cure, such
thirty (30) day period shall be extended for an additional sixty (60)
days; or
(viii) any breach on the part of the Master Servicer, the Special
Servicer or the REMIC Administrator of any representation or warranty
thereof contained in this Agreement which materially and adversely affects
the interests of any Class of Certificateholders and which continues
unremedied for a period of thirty (30) days after the date on which notice
of such breach, requiring the same to be remedied, shall have been given
to the Master Servicer, the Special Servicer or the REMIC Administrator,
as the case may be, by any other party hereto, or to the Master Servicer,
the Special Servicer or the REMIC Administrator, as the case may be, with
a copy to each other party hereto, by the Holders of Certificates entitled
to at least 25% of the Voting Rights; provided, however, that if such
representation or warranty is capable of being cured and the Master
Servicer or Special Servicer, as applicable, is diligently pursuing such
cure, such thirty (30) day period shall be extended for an additional
sixty (60) days; or
(ix) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer, the Special Servicer or the REMIC Administrator and
such decree or order shall have remained in force undischarged or unstayed
for a period of sixty (60) days; or
(x) the Master Servicer, the Special Servicer or the REMIC
Administrator shall consent to the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to it or of or relating to all or substantially
all of its property; or
(xi) the Master Servicer, the Special Servicer or the REMIC
Administrator 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
(xii) the Master Servicer is no longer rated "CMS3" or its
equivalent, or higher, by Fitch, or the Special Servicer is no longer
rated "CSS3" or its equivalent, or higher, by Fitch; or
(xiii) either the Master Servicer is removed from S&P's approved
master servicer list or the Special Servicer is removed from S&P's
approved special servicer list.
Each Event of Default listed above as items (iv) through (xiii) shall constitute
an Event of Default only with respect to the relevant party; provided that if a
single entity acts or any two or more Affiliates act as Master Servicer, Special
Servicer and REMIC Administrator, or in any two or more of the foregoing
capacities, an Event of Default in one capacity (other than an event described
in clauses (xii) or (xiii)) will constitute an Event of Default in each such
capacity.
(b) If any Event of Default with respect to the Master 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 the Event of Default shall not have been remedied, the
Depositor or the Trustee may, and (other than with respect to the Events of
Default listed in clauses (xii) and clause (xiii) above) at the written
direction of the Holders of Certificates entitled to at least 51% of the Voting
Rights, or if the relevant Event of Default is the one described in clause (xi)
of subsection (a) above, the Trustee shall, terminate, by notice in writing to
the Defaulting Party (with a copy of such notice to each other party hereto),
all of the rights and obligations (subject to Section 3.11 and Section 6.03,
accruing from and after such notice) of the Defaulting Party under this
Agreement and in and to the Mortgage Loans and the proceeds thereof. With
respect to each of the Event of Defaults listed above as clauses (xii) and
(xiii), the Trustee shall provide written notice of such Event of Default to
each Certificateholder and request written direction of such Certificateholders
whether they desire to terminate the Defaulting Party; if no such direction is
received from the Directing Certificateholder or Holders of Certificates
entitled to vote at least 51% of the Voting Rights within ten (10) Business Days
after delivery of such notice by the Trustee or the Depositor, and the Trustee
has not elected pursuant to the preceding sentence to terminate the Defaulting
Party, the Defaulting Party will not be terminated by reason of such Event of
Default. From and after the receipt by the Defaulting Party of such written
notice, all authority and power of the Defaulting Party under this Agreement,
whether with respect to the Certificates (other than as a Holder of any
Certificate) or the Mortgage Loans or otherwise, shall pass to and be vested in
the Trustee pursuant to and under this Section, and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
and at the expense of the Defaulting Party, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. The Master Servicer and
the Special Servicer each agree that, if it is terminated pursuant to this
Section 7.01(b), it shall promptly (and in any event no later than ten (10)
Business Days subsequent to its receipt of the notice of termination) provide
the Trustee with all documents and records reasonably requested thereby to
enable the Trustee to assume the Master Servicer's or Special Servicer's, as the
case may be, functions hereunder, and shall cooperate with the Trustee in
effecting the termination of the Master Servicer's or Special Servicer's, as the
case may be, responsibilities and rights hereunder, including, without
limitation, the transfer within two (2) Business Days to the Trustee for
administration by it of all cash amounts which shall at the time be or should
have been credited by the Master Servicer to the Certificate Account, the
Distribution Account, any Servicing Account or any Reserve Account (if it is the
Defaulting Party) or by the Special Servicer to the REO Account, the Certificate
Account, any Servicing Account or any Reserve Account (if it is the Defaulting
Party) or thereafter be received with respect to the Mortgage Loans and any REO
Properties (provided, however, that the Master Servicer and the Special Servicer
each shall, if terminated pursuant to this Section 7.01(b) or Section 3.23,
continue to be obligated for or entitled to receive all amounts accrued or owing
by or to it under this Agreement on or prior to the date of such termination,
whether in respect of Advances or otherwise, and it and its directors, officers,
employees and agents shall continue to be entitled to the benefits of Section
6.03 notwithstanding any such termination). All costs and expenses of the
Trustee and the Trust (including, without limitation, any costs and expenses of
any party hereto reimbursable out of the Trust Fund) in connection with the
termination of the Master Servicer or Special Servicer, as applicable, under
this Section 7.01(b) (including, without limitation, the requisite transfer of
servicing) shall be paid for, as incurred, by the Defaulting Party.
(c) If any Event of Default with respect to the REMIC Administrator
shall occur and be continuing, then, and in each and every such case, so long as
the Event of Default shall not have been remedied, the Depositor or the Trustee
may, and at the written direction of the Holders of Certificates entitled to at
least 51% of the Voting Rights, the Trustee (or, if the Trustee is also the
REMIC Administrator, the Master Servicer) shall, terminate, by notice in writing
to the REMIC Administrator (with a copy to each of the other parties hereto),
all of the rights and obligations of the REMIC Administrator under this
Agreement. From and after the receipt by the REMIC Administrator of such written
notice (or if the Trustee is also the REMIC Administrator, from and after such
time as another successor appointed as contemplated by Section 7.02 accepts such
appointment), all authority and power of the REMIC Administrator under this
Agreement shall pass to and be vested in the Trustee (or such other successor)
pursuant to and under this Section, and, without limitation, the Trustee (or
such other successor) is hereby authorized and empowered to execute and deliver,
on behalf of and at the expense of the REMIC Administrator, as attorney-in-fact
or otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination. The REMIC Administrator agrees promptly
(and in any event no later than ten (10) Business Days subsequent to its receipt
of the notice of the termination) to provide the Trustee (or, if the Trustee is
also the REMIC Administrator, such other successor appointed as contemplated by
Section 7.02) with all documents and records requested thereby to enable the
Trustee (or such other successor) to assume the REMIC Administrator's functions
hereunder, and to cooperate with the Trustee (or such other successor) in
effecting the termination of the REMIC Administrator's responsibilities and
rights hereunder (provided, however, that the REMIC Administrator shall continue
to be obligated for or entitled to receive all amounts accrued or owing by or to
it under this Agreement on or prior to the date of such termination, and it and
its directors, officers, employees and agents shall continue to be entitled to
the benefits of Section 6.03 notwithstanding any such termination).
(d) Notwithstanding Section 7.01(b) of this Agreement, if the Master
Servicer receives a notice of termination under Section 7.01(b) solely due to an
Event of Default under Section 7.01(a)(xii) or (xiii) and if the Master Servicer
provides the Trustee with the appropriate "request for proposal" materials
within the five (5) Business Days after such termination, then the Trustee shall
promptly thereafter (using such "request for proposal" materials provided by the
terminated Master Servicer) solicit good faith bids for the rights to master
service the Mortgage Loans under this Agreement from at least three (3) Persons
qualified to act as Master Servicer hereunder in accordance with Section 6.02
and Section 7.02 for which the Trustee has received written confirmation that
the appointment of such person would not result in the downgrade, withdrawal or
qualification of a current rating on any of the Certificates and which are
reasonably acceptable to the Directing Certificateholder (any such Person so
qualified, a "Qualified Bidder") or, if three (3) Qualified Bidders cannot be
located, then from as many Persons as the Trustee can determine are Qualified
Bidders; provided that, at the Trustee's request, the terminated Master Servicer
shall supply the Trustee with the names of Persons from whom to solicit such
bids; and provided, further, that the Trustee shall not be responsible if less
than three (3) or no Qualified Bidders submit bids for the right to master
service the Mortgage Loans under this Agreement. Any "Qualified Bidder"
referenced hereunder shall be reasonably acceptable to the Directing
Certificateholder. The bid proposal shall require any Successful Bidder (as
defined below), as a condition of such bid, to enter into this Agreement as
successor Master Servicer, and to agree to be bound by the terms hereof, within
forty-five (45) days after the termination of Master Servicer. The Trustee shall
solicit bids (i) on the basis of such successor Master Servicer retaining all
Sub-Servicers to continue the primary servicing of the Loans pursuant to the
terms of the respective Sub-Servicing Agreements and to enter into a
Sub-Servicing Agreement with the terminated Master Servicer to service each of
the Loans not subject to a Sub-Servicing Agreement at a servicing fee rate per
annum equal to the Master Servicing Fee Rate minus 2.5 basis points per Mortgage
Loan serviced (each, a "Servicing-Retained Bid") and (ii) on the basis of
terminating each Sub-Servicing Agreement and Sub-Servicer that it is permitted
to terminate in accordance with Section 3.22 (each, a "Servicing-Released Bid").
The Trustee shall select the Qualified Bidder with the highest cash
Servicing-Retained Bid (or, if none, the highest cash Servicing Released Bid)
(the "Successful Bidder") to act as successor Master Servicer hereunder. The
Trustee shall direct the Successful Bidder to enter into this Agreement as
successor Master Servicer pursuant to the terms hereof (and, if the successful
bid was a Servicing-Retained Bid, to enter into a Sub-Servicing Agreement with
the terminated Master Servicer as contemplated above), no later than forty-five
(45) days after the termination of the Master Servicer.
(e) Upon the assignment and acceptance of the master servicing
rights hereunder to and by the Successful Bidder, the Trustee shall remit or
cause to be remitted (i) if the successful bid was a Servicing-Retained Bid, to
the terminated Master Servicer the amount of such cash bid received from the
Successful Bidder (net of "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing-Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
(f) If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within forty-five (45) days after the Trustee was
appointed as successor Master Servicer or no Successful Bidder was identified
within such forty-five (45) day period, the terminated Master Servicer shall
reimburse the Trustee for all reasonable "out-of-pocket" expenses incurred by
the Trustee in connection with such bid process and the Trustee shall have no
further obligations under this Section 7.01(d). The Trustee thereafter may act
or may select a successor to act as Master Servicer hereunder in accordance with
Section 7.02.
SECTION 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer, the Special Servicer or
the REMIC Administrator resigns pursuant to clause (ii) of the first sentence of
Section 6.04 or receives a notice of termination pursuant to Section 7.01, the
Trustee shall be the successor in all respects to the Master Servicer, the
Special Servicer or (unless it has also been acting as such) the REMIC
Administrator, as the case may be, in its capacity as such under this Agreement
and the transactions set forth or provided for herein and shall be subject to
all the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, by the terms and provisions hereof,
including, without limitation, if the Master Servicer is the resigning or
terminated party, the Master Servicer's obligation to make P&I Advances;
provided that any failure to perform such duties or responsibilities caused by
the Master Servicer's, the Special Servicer's or the REMIC Administrator's, as
the case may be, failure to cooperate or to provide information or monies
required by Section 7.01 shall not be considered a default by the Trustee
hereunder. Neither the Trustee nor any other successor shall be liable for any
of the representations and warranties of the resigning or terminated party or
for any losses incurred by the resigning or terminated party pursuant to Section
3.06 hereunder nor shall the Trustee nor any other successor be required to
purchase any Mortgage Loan hereunder. As compensation therefor, the Trustee
shall be entitled to all fees and other compensation, (subject to Section 3.11)
which the resigning or terminated party would have been entitled to for future
services rendered if the resigning or terminated party had continued to act
hereunder. Notwithstanding the above, the Trustee may, if it shall be unwilling
to so act, or shall, if it is unable to so act, or is not approved by each and
every Rating Agency as an acceptable master servicer or special servicer, as the
case may be, of commercial mortgage loans; or if the Directing Certificateholder
or if the Holders of Certificates entitled to at least 51% of the Voting Rights
so request in writing to the Trustee; or if the REMIC Administrator is the
resigning or terminated party and the Trustee had been acting in such capacity,
promptly appoint, or petition a court of competent jurisdiction to appoint, any
established and qualified institution as the successor to the Master Servicer,
the Special Servicer or the REMIC Administrator, as the case may be, hereunder
in the assumption of all or any part of the responsibilities, duties or
liabilities of the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, hereunder; provided, in the case of a
successor Master Servicer, such successor has been approved by the Directing
Certificateholder, which consent with respect to the Master Servicer shall not
be unreasonably withheld or delayed; provided that such appointment does not
result in the downgrading, qualification (if applicable) or withdrawal of any
rating then assigned by any Rating Agency to any Class of Certificates (as
evidenced by written confirmation thereof from each Rating Agency); provided
further that in the case of a resigning or terminated Special Servicer, such
appointment shall be subject to the rights of the Majority Certificateholder of
the Controlling Class to designate a successor pursuant to Section 3.23. No
appointment of a successor to the Master Servicer, the Special Servicer or the
REMIC Administrator hereunder shall be effective until the assumption of the
successor to such party of all its responsibilities, duties and liabilities
hereunder. Pending appointment of a successor to the Master Servicer, the
Special Servicer or the REMIC Administrator hereunder, the Trustee shall act in
such capacity as hereinabove provided. Notwithstanding the above, the Trustee
shall, if the Master Servicer is the resigning or terminated party and the
Trustee is prohibited by law or regulation from making P&I Advances, promptly
appoint any established mortgage loan servicing institution that has a net worth
of not less than $15,000,000 and is otherwise acceptable to each Rating Agency
(as evidenced by written confirmation therefrom to the effect that the
appointment of such institution would not cause the qualification, downgrading
or withdrawal of the then current rating on any Class of Certificates), as the
successor to the Master Servicer hereunder in the assumption of all or any part
of the responsibilities, duties or liabilities of the Master Servicer hereunder
(including, without limitation, the obligation to make P&I Advances), which
appointment will become effective immediately. Subject to Section 3.11 and in
connection with any such appointment and assumption described herein, the
Trustee may make such arrangements for the compensation of such successor out of
payments on or in respect of the Mortgage Loans or otherwise as it and such
successor shall agree; provided, however, that no such compensation shall be in
excess of that permitted the resigning or terminated party hereunder. The
Depositor, the Trustee, such successor and each other party hereto shall take
such action, consistent with this Agreement, as shall be necessary to effectuate
any such succession. Any costs and expenses associated with the transfer of the
foregoing functions under this Agreement (other than the set-up costs of the
successor) shall be borne by the predecessor Master Servicer, Special Servicer
or REMIC Administrator, as applicable, and, if not paid by such predecessor
Master Servicer, Special Servicer or REMIC Administrator within thirty (30) days
of its receipt of an invoice therefor, shall be an expense of the Trust;
provided that such predecessor Master Servicer, Special Servicer or REMIC
Administrator shall reimburse the Trust for any such expense so incurred by the
Trust; and provided, further, that the Trustee shall decide whether and to what
extent it is in the best interest of the Certificateholders to pursue any remedy
against any party obligated to make such reimbursement.
SECTION 7.03 Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer, the Special
Servicer or the REMIC Administrator pursuant to Section 6.04, any termination of
the Master Servicer, the Special Servicer or the REMIC Administrator pursuant to
Section 7.01 or any appointment of a successor to the Master Servicer, the
Special Servicer or the REMIC Administrator pursuant to Section 6.04 or Section
7.02, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) sixty (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
Trustee has actual knowledge, or would be deemed in accordance with Section
8.02(g) to have notice of the occurrence of such an event, the Trustee shall
transmit by mail to the other non-defaulting parties hereto and all
Certificateholders notice of such occurrence, unless such default shall have
been cured.
SECTION 7.04 Waiver of Events of Default.
The Holders entitled to at least 66-2/3% of the Voting Rights
allocated to each of the Classes of Certificates affected by any Event of
Default hereunder may waive such Event of Default, except that prior to any
waiver of an Event of Default arising from a failure to make P&I Advances, the
Trustee shall be reimbursed all amounts which it has advanced. Upon any such
waiver of an Event of Default, such Event of Default shall cease to exist and
shall be deemed to have been remedied for every purpose hereunder. No such
waiver shall extend to any subsequent or other Event of Default or impair any
right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor (provided that
neither the Depositor nor any Affiliate thereof is the party in respect of which
such Event of Default exists) 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 Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right, in its own name and as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy, and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default
hereunder and after the curing or waiver of all such Events of Default and
defaults which may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement; provided that it is
herein acknowledged and agreed that the Trustee is at all times acting in a
fiduciary capacity with respect to the Certificateholders. If an Event of
Default hereunder occurs and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement and applicable law, and use
the same degree of care and skill in their exercise as a prudent man or the
Trustee would exercise or use under the circumstances in the conduct of his or
its own affairs (whichever standard would be higher). Any permissive right of
the Trustee contained in this Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform in form to the requirements of this Agreement. If
any such instrument is found not to so conform to the requirements of this
Agreement in a material manner, the Trustee shall take such action as it deems
appropriate to have the instrument corrected. The Trustee shall not be
responsible for, but may assume and rely upon, the accuracy and content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Depositor, the Master Servicer, the Special Servicer
or the REMIC Administrator and accepted by the Trustee in good faith, pursuant
to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) The duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not
be liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to at
least 25% (or, as to any particular matter, any higher percentage as may
be specifically provided for hereunder) of the Voting Rights relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Agreement.
(d) The Trustee hereby indemnifies and holds the Trust harmless for
all losses, liabilities and damages incurred by the Trust or the
Certificateholders by virtue of the Trustee's negligence or fraud.
SECTION 8.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(a) The Trustee 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;
(b) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance therewith;
(c) The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to make any investigation of
matters arising hereunder or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby; the Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it; nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default hereunder which has not
been cured, to exercise such of the rights and powers vested in it by this
Agreement and to use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs;
(d) The Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(e) Prior to the occurrence of an Event of Default hereunder, and
after the curing of all such Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing to do so by Holders of Certificates entitled to at
least 25% of the Voting Rights; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such action;
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys-in-fact, provided that the use of any such agent or attorney-in-fact
shall not relieve the Trustee from any of its obligations hereunder, and the
Trustee shall remain responsible for all acts and omissions of any such agent or
attorney-in-fact;
(g) For all purposes under this Agreement, the Trustee shall not be
deemed to have notice of any Event of Default hereunder 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; and
(h) The Trustee shall not be responsible for any act or omission of
the Master Servicer, the Special Servicer or the REMIC Administrator (unless the
Trustee is acting as Master Servicer, Special Servicer or REMIC Administrator,
as the case may be) or for any act or omission of the Depositor or the Mortgage
Loan Seller.
SECTION 8.03 Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than
the representations and warranties of, and the other statements attributed to,
the Trustee in Article II and the certificate of authentication executed by the
Trustee as Certificate Registrar set forth on each outstanding Certificate)
shall be taken as the statements of the Depositor, the Master Servicer, the
Special Servicer or the REMIC Administrator, as the case may be, and neither the
Trustee nor the Fiscal Agent assume any responsibility for their correctness.
Neither the Trustee nor the Fiscal Agent make any representations as to the
validity or sufficiency of this Agreement (other than as specifically set forth
in Section 2.07) or of any Certificate (other than as to the signature of the
Trustee set forth thereon) or of any Mortgage Loan or related document. Neither
the Trustee nor the Fiscal 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, or
any funds deposited in or withdrawn from the Certificate Account, the Interest
Reserve Account or any other account by or on behalf of the Depositor, the
Master Servicer, the Special Servicer or the REMIC Administrator. Neither the
Trustee nor the Fiscal Agent shall be responsible for the accuracy or content of
any resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by the Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator and accepted by the Trustee, in good faith,
pursuant to this Agreement.
SECTION 8.04 Trustee May Own Certificates.
The Trustee, in its individual or any other capacity, and any agent
of the Trustee may become the owner or pledgee of Certificates with, except as
otherwise provided in the definition of Certificateholder, the same rights it
would have if it were not the Trustee or such agent, as the case may be.
SECTION 8.05 Fees of Trustee; Indemnification of Trustee.
(a) The Trustee shall pay to itself on each Distribution Date,
pursuant to Section 3.05(b)(ii), from amounts on deposit in the Distribution
Account, an amount equal to the Trustee Fee for such Distribution Date and, to
the extent not previously received, for each prior Distribution Date.
(b) The Trustee, the Fiscal Agent and any director, officer,
employee or agent of the Trustee or the Fiscal Agent, as applicable, or Person,
if any, who controls the Trustee or the Fiscal Agent, as applicable, within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, shall be entitled to be indemnified and held harmless by the Trust (to the
extent of amounts on deposit in the Certificate Account and the 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) arising out of,
or incurred in connection with, any legal actions relating to the exercise and
performance of any of the powers and duties of the Trustee hereunder and any
other "unanticipated expenses" (similar to those defined in Treasury Regulations
Section 1.860G-1(b)(3)(ii)) of the Trustee or Fiscal Agent; provided that the
Trustee shall not 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 in the normal course of the Trustee's
performing its routine duties in accordance with any of the provisions hereof,
(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 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 made herein. The provisions
of this Section 8.05(b) shall (i) survive any resignation or removal of the
Trustee and appointment of a successor trustee and (ii) extend to any other role
which the Trustee may assume hereunder, including without limitation REMIC
Administrator, Custodian and/or Certificate Registrar.
SECTION 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation, a trust
company, a bank or a banking association: (i) organized and doing business under
the laws of the United States of America or any State thereof or the District of
Columbia; (ii) authorized under such laws to exercise trust powers; (iii) having
a combined capital and surplus of at least $50,000,000; (iv) subject to
supervision or examination by federal or state authority; and (v) whose
long-term senior unsecured debt is rated not less than "AA-" by Fitch (and if
the Trustee is rated "AA-" by Fitch, a short-term rating of at least "F-1+" in
the case of Fitch) and "AA-" by S&P or, if a Fiscal Agent meeting the
requirements of Section 8.14 is then currently acting in such capacity, not less
than "A-" by Fitch and "A-" by S&P (or, in the case of either Rating Agency,
such other rating as each such Rating Agency shall permit so long as it is
accompanied by a statement in writing that any of the then-current ratings
assigned by such Rating Agency to the respective Classes of the Certificates
would not be downgraded, qualified (if applicable) or withdrawn as a result of
such rating). If such corporation, trust company, bank or 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 8.06, the combined capital and surplus of such
corporation, trust company, bank or banking association shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. No Person shall become a successor trustee hereunder if
the succession of such Person would result in a downgrade, qualification (if
applicable) or withdrawal of any of the ratings then assigned by the Rating
Agencies to the Certificates. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 8.07.
The corporation, trust company, bank or banking association serving as Trustee
may have normal banking and trust relationships with the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator and their respective
Affiliates.
SECTION 8.07 Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer, the REMIC Administrator, all
Certificateholders and Companion Loan Noteholders. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor trustee acceptable
to the Master Servicer by written instrument, in duplicate, which instrument
shall be delivered to the resigning Trustee and to the successor trustee. A copy
of such instrument shall be delivered to the Master Servicer, the Special
Servicer, the REMIC Administrator and the Certificateholders by the Depositor.
If no successor trustee shall have been so appointed and have accepted
appointment within thirty (30) days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer, or if at any
time the Trustee or the Fiscal Agent shall become incapable of acting, or shall
be adjudged bankrupt or insolvent, or a receiver of the Trustee or the Fiscal
Agent or of its property shall be appointed, or any public officer shall take
charge or control of the Trustee or the Fiscal Agent or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Depositor may remove the Trustee and appoint a successor trustee and successor
fiscal agent, if applicable, acceptable to the Master Servicer by written
instrument, in duplicate, which instrument shall be delivered to the Trustee and
the Fiscal Agent so removed and to the successor trustee and successor fiscal
agent, if applicable. A copy of such instrument shall be delivered to the Master
Servicer, the Special Servicer, the Directing Certificateholder, the Companion
Loan Noteholders, the REMIC Administrator and the Certificateholders by the
Depositor. Removal or resignation of the Trustee shall be deemed to be
simultaneous resignation of the Fiscal Agent.
(c) The Holders of Certificates entitled to at least 33 1/3% of the
Voting Rights may at any time remove the Trustee and the Fiscal Agent and
appoint a successor trustee by written instrument or instruments, in triplicate,
signed by such Holders or their attorneys-in-fact duly authorized, one complete
set of which instruments shall be delivered to the Master Servicer, one complete
set to the Trustee so removed and one complete set to the successor so
appointed; provided that the Master Servicer, the Companion Loan Noteholders,
the Depositor and the remaining Certificateholders shall have been notified; and
provided further that other Holders of the Certificates entitled to a greater
percentage of the Voting Rights shall not have objected to such removal in
writing to the Master Servicer and the Depositor within thirty (30) days of
their receipt of notice thereof. A copy of such instrument shall be delivered to
the Depositor, the Special Servicer, the REMIC Administrator and the remaining
Certificateholders by the Master Servicer. If the Trustee and the Fiscal Agent
are removed under this Agreement without cause, all reasonable costs and
expenses incurred by the Trustee and the Fiscal Agent (to the extent not
duplicative of any reimbursement provided for under Section 8.08(a)) shall be at
the expense of the party causing such removal.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08; and no such resignation or removal of the Trustee
and/or appointment of a successor trustee shall be permitted, unless, as
confirmed in writing by each Rating Agency, such resignation or removal and
appointment would not result in the downgrade, qualification (if applicable) or
withdrawal of the rating assigned by any Rating Agency to any Class of
Certificates.
SECTION 8.08 Successor Trustee.
(a) Any successor trustee and successor fiscal agent, if applicable,
appointed as provided in Section 8.07 shall execute, acknowledge and deliver to
the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and to its predecessor trustee and predecessor fiscal agent an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee and predecessor fiscal agent shall become
effective and such successor trustee or successor fiscal agent, if applicable,
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 fiscal agent, as
applicable, herein. The predecessor trustee shall deliver to the successor
trustee all Mortgage Files and related documents and statements held by it
hereunder, and the Depositor, the Master Servicer, the Special Servicer, the
REMIC Administrator 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. If such predecessor trustee was removed as Trustee under
this Agreement without cause, the cost of any such execution, delivery or action
shall be at the expense of the Trust.
(b) No successor trustee or successor fiscal agent, if applicable,
shall accept appointment as provided in this Section 8.08 unless at the time of
such acceptance such successor trustee or successor fiscal agent shall be
eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, the successor trustee shall mail notice of the
succession of such trustee and fiscal agent to the Depositor and the
Certificateholders.
SECTION 8.09 Merger or Consolidation of Trustee or Fiscal Agent.
Any entity into which the Trustee may be merged or converted or with
which it may be consolidated or any entity resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any entity succeeding
to the corporate trust business of the Trustee, shall be the successor of the
Trustee, hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided that the Trustee shall continue to be eligible under
the provisions of Section 8.06. Any Person into which the Fiscal Agent may be
merged or converted or with which it may be consolidated or any corporation or
bank resulting from any merger, conversion or consolidation to which the Fiscal
Agent shall be a party, or any corporation or banking association succeeding to
all or substantially all of the corporate trust business of the Fiscal Agent
shall be the successor of the Fiscal Agent hereunder, provided that such
corporation or bank shall be eligible under the provisions of Section 8.06
without the execution or filing of any paper or any further act on the party of
any of the parties hereto, anything to the contrary notwithstanding. The
successor to the Trustee shall promptly notify in writing each of the other
parties hereto, the Certificateholders and the Rating Agencies of any such
merger, conversion, consolidation or succession to business.
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Master Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within fifteen (15)
days after the receipt by it of a request to do so, or in case an Event of
Default in respect of the Master Servicer shall have occurred and be continuing,
the Trustee alone shall have the power to make such appointment. No co-trustee
or separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer, the Special Servicer or the REMIC
Administrator hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed by such
separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties, responsibilities or
liabilities hereunder; provided the Trustee shall have no liability for the
actions or inaction of a separate trustee or co-trustee which do not comply with
the provisions of Section 8.10(b).
SECTION 8.11 Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer, appoint
one or more Custodians to hold all or a portion of the Mortgage Files as agent
for the Trustee; provided that if the Custodian is an Affiliate of the Trustee
such consent of the Master Servicer need not be obtained and the Trustee shall
instead notify the Master Servicer of such appointment. Each Custodian shall be
a depository institution subject to supervision by federal or state authority,
shall have combined capital and surplus (or shall have its performance
guaranteed by an Affiliate with a combined capital and surplus) of at least
$10,000,000, shall be qualified to do business in the jurisdiction in which it
holds any Mortgage File and shall not be the Depositor, the Mortgage Loan Seller
or any Affiliate of any of them. 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 duties, liabilities or obligations hereunder, and the Trustee shall remain
responsible for all acts and omissions of any Custodian. Any such Custodian
(other than the Trustee or an Affiliate of the Trustee) shall maintain the same
errors and omissions insurance as required of the Master Servicer pursuant to
Section 3.07(c).
SECTION 8.12 Access to Certain Information.
(a) The Trustee shall provide or cause to be provided to the
Depositor, the Master Servicer, the Special Servicer and the Rating Agencies,
and to the OTS, the FDIC, and any other federal or state banking or insurance
regulatory authority that may exercise authority over any Certificateholder,
access to the Mortgage Files and any other documentation regarding the Loans and
the Trust Fund, that is within its control which may be required by this
Agreement or by applicable law. Such access shall be afforded without charge but
only upon reasonable prior written request and during normal business hours at
the offices of the Trustee designated by it.
(b) Promptly following the first sale of any Non-Registered
Certificate to an Independent third party, the Depositor shall provide to the
Trustee 10 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
belongs. 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, the Depositor promptly shall inform the Trustee of such
event and shall deliver to the Trustee 10 copies of the private placement
memorandum or disclosure document, as revised, amended or supplemented. The
Trustee shall maintain at its Corporate Trust Office and shall on behalf of the
Depositor, upon reasonable advance written notice, make available during normal
business hours for review by each Rating Agency and by any Certificateholder or
any Certificate Owner or any Person identified to the Trustee by a
Certificateholder or a Certificate Owner as a prospective transferee of a
Certificate or interest therein, 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 Trustee; and (ii) in all
cases, (A) all Officer's Certificates delivered to the Trustee since the Closing
Date pursuant to Section 3.13, (B) all accountants' reports delivered to the
Trustee since the Closing Date pursuant to Section 3.14, (C) the most recent
inspection report, together with any related additional written or electronic
information, prepared or obtained by, or on behalf of, the Master Servicer or
Special Servicer, as the case may be, and delivered to the Trustee in respect of
each Mortgaged Property pursuant to Section 3.12(a), (D) all Mortgagor financial
statements and Mortgaged Property operating statements and rent rolls, together
with any related additional written or electronic information, delivered to the
Trustee by the Master Servicer or the Special Servicer pursuant to Section
3.12(b), (E) any and all notices and reports delivered to the Trustee 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 or that any remedial, corrective or other further
action contemplated in such clauses is required (but only for so long as such
Mortgaged Property or the related Mortgage Loan is part of the Trust Fund), (F)
all documents constituting the Mortgage Files, including, without limitation,
any and all modifications, waivers and amendments of the terms of a Loan entered
into by the Master Servicer or the Special Servicer and delivered to the Trustee
pursuant to Section 3.20 (but, in each case, only for so long as the related
Mortgage Loan is part of the Trust Fund) and, (G) any Asset Status Report.
Copies of any and all of the foregoing items are to be available from the
Trustee upon request; however, the Trustee shall be permitted to require payment
of a sum sufficient to cover the reasonable costs and expenses of providing such
service.
In connection with providing access to or copies of the items
described in the immediately preceding paragraph of this Section 8.12(b), the
Trustee may require, unless the Depositor directs otherwise, (i) in the case of
Certificate Owners, a written confirmation executed by the requesting Person, in
form reasonably satisfactory to the Trustee, generally to the effect that such
Person is a beneficial holder of Certificates and will keep such information
confidential and (ii) in the case of any prospective purchaser of a Certificate
or, in the case of a Book-Entry Certificate, of a beneficial ownership interest
therein, a written confirmation executed by the requesting Person, in form
reasonably satisfactory to the Trustee, generally to the effect that such Person
is a prospective purchaser of a Certificate or a beneficial ownership interest
therein, is requesting the information for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. All Certificateholders, by acceptance of their Certificates, shall
be deemed to have agreed to keep such information confidential, except to the
extent that the Depositor grants written permission to the contrary.
Notwithstanding the preceding sentences of this paragraph, the Trustee shall
have no responsibility for the accuracy, completeness or sufficiency of any
information so made available or furnished by it in the manner described in the
immediately preceding paragraph.
SECTION 8.13 Filings with the Securities and Exchange Commission.
(a) The provisions of this paragraph shall not apply until such time
as any Class of Certificates is registered under the Securities Act of 1933.
Thereupon, the Depositor shall prepare for filing, execute and properly file
with the Commission, the initial 8-K. The Trustee shall, at the expense of the
Depositor, prepare for filing, execute (except in the case of Form 10-K which
the Depositor shall execute) and properly file with the Commission (i) the Form
10-K, (ii) the Form 15 in January, 2004 and (iii) the Form 8-K with the
following attachments: (a) the Distribution Date Statements, and (b) any
additional items requested by the Depositor, and (c) any items specifically
provided herein to be filed on behalf of the Trust under the Exchange Act;
provided that any such items shall have been received by the Trustee (to the
extent not generated by the Trustee) in the format required for electronic
filing via the XXXXX system. The Depositor hereby grants to the Trustee a
limited power of attorney to execute (except in the case of Form 10-K which the
Depositor shall execute) and file each such document (other than the initial
8-K) on behalf of the Depositor. Such power of attorney shall continue until
either the earlier of (i) receipt by the Trustee from the Depositor of written
termination of such power of attorney and (ii) the termination of the Trust
Fund. The Depositor agrees to promptly furnish to the Trustee, from time to time
upon request, such further information, reports, and financial statements within
its control related to this Agreement and the Mortgage Loans as the Trustee
reasonably deems appropriate to prepare and file all necessary reports with the
Commission. The Trustee shall have no responsibility to file any such items that
have not been received in such XXXXX compatible or convertible format nor shall
it have any responsibility to convert any items to such format. The Depositor
shall (i) promptly file, and exercise its reasonable best efforts to obtain a
favorable response to, no-action requests to, or requests for other appropriate
exemptive relief from, the Commission regarding the usual and customary
exemption from certain reporting requirements granted to issuers of securities
similar to the Certificates; and, (ii) promptly forward copies of any response
from the Commission to the Trustee.
(b) With respect to the Trust's fiscal year 2003, the Trustee shall
prepare and properly file with the Commission on or before the due date
specified by the Commission, with respect to the Trust, an Annual Report on Form
10-K, which complies in all material respects with the requirements of the
Exchange Act, the rules and regulations promulgated thereunder and applicable
"no-action letters" issued by the Commission, which shall include as exhibits
the Officer's Certificates and Annual Accountant's Reports delivered pursuant to
Section 3.13 and Section 3.14, respectively, with respect to the Master Servicer
and the Special Servicer for such fiscal year, and which shall further include
such certification(s) as may be required under the Xxxxxxxx-Xxxxx Act of 2002
and the rules and regulations of the Commission promulgated thereunder
(including any interpretations thereof by the Commission's staff) (such
certification(s), individually and collectively, insofar as they are required to
be part of any particular Annual Report on Form 10-K, a "Xxxxxxxx-Xxxxx
Certification") (which Xxxxxxxx-Xxxxx Certifications shall be signed by the
party or parties contemplated by this Section 8.13). Such Xxxxxxxx-Xxxxx
Certification is set forth in substantially the form referenced on Exhibit K to
this Agreement but may be submitted in such other form as the Commission may
approve from time to time.
(c) The Form 10-K shall include any Xxxxxxxx-Xxxxx Certification. An
officer of the Depositor shall sign the Xxxxxxxx-Xxxxx Certification. The Master
Servicer, the Special Servicer and the Trustee (each, a "Performing Party")
shall provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the
"Certifying Person") a certification (each, a "Performance Certification"), in
the form set forth on Exhibit L hereto, on which the Certifying Person, the
Depositor (if the Certifying Person is an individual), and the Depositor's
partner, representative, Affiliate, member, manager, director, officer, employee
or agent (collectively with the Certifying Person, "Certification Parties") can
rely. The Trustee's certification with respect to items 1 through 3 of Exhibit L
hereto shall relate to distribution information, and the Master Servicer's and
Special Servicer's certification with respect to items 4 and 5 of Exhibit L
hereto shall relate to servicing information. Notwithstanding the foregoing,
nothing in this paragraph shall require any Performing Party to (i) certify or
verify the accurateness or completeness of any information provided to such
Performing Party by third parties, (ii) certify information other than to such
Performing Party's knowledge and in accordance with such Performing Party's
responsibilities hereunder or under any other applicable servicing agreement or
(iii) with respect to completeness of information and reports, certify anything
other than that all fields of information called for in written reports prepared
by such Performing Party have been completed except as they have been left blank
on their face. In addition, if directed by the Depositor, such Performing Party
shall provide an identical certification to Depositor's certified public
accountants that such Performing Party provided to its own certified public
accountants to the extent such certification relates to the performance of such
Performing Party's duties pursuant to this Agreement or a modified certificate
limiting the certification therein to the performance of such Performing Party's
duties pursuant to this Agreement. In the event any Performing Party is
terminated or resigns pursuant to the terms of this Agreement, such Performing
Party shall provide a Performance Certification to the Depositor pursuant to
this Section 8.13(c) with respect to the period of time such Performing Party
was subject to this Agreement.
(d) Nothing contained in this Section 8.13 shall be construed to
require any party to this Agreement (other than the Depositor), or any of such
party's officers (except the officer of the Depositor who signs the
Xxxxxxxx-Xxxxx Certification), to execute any Form 10-K or any Xxxxxxxx-Xxxxx
Certification. The failure of any such party to this Agreement, or any of such
party's officers, to execute any Form 10-K or any Xxxxxxxx-Xxxxx Certification
shall not be regarded as a breach by such party of any of its obligations under
this Agreement. The Depositor, each Performing Party and the Trustee hereby
agree to negotiate in good faith with respect to compliance with any further
guidance from the Commission or its staff relating to the execution of any Form
10-K and any Xxxxxxxx-Xxxxx Certification. In the event such parties agree on
such matters, this Agreement shall be amended to reflect such agreement pursuant
to Section 11.01.
(e) Each Performing Party shall indemnify and hold harmless each
Certification Party from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses incurred by such Certification Party arising out of
(i) an actual breach by the applicable Performing Party of its obligations under
this Section 8.13, (ii) negligence, bad faith or willful misconduct on the part
of such Performing Party in the performance of such obligations or (iii) any
inaccuracy made in the Performance Certification resulting from such Performing
Party's negligence, bad faith or willful misconduct. A Performing Party shall
have no obligation to indemnify any Certification Party for an inaccuracy in the
Performance Certification of any other Performing Party. If the indemnification
provided for in this Section 8.13 is unavailable or insufficient to hold
harmless a Certification Party (on grounds of public policy or otherwise), then
each Performing Party shall contribute to the amount paid or payable by such
Certification Party as a result of the losses, claims, damages or liabilities of
such Certification Party in such proportion as is appropriate to reflect the
relative fault of such Certification Party on the one hand and each Performing
Party on the other. The obligations of the Performing Parties in this subsection
(d) to contribute are several in the proportions described in the preceding
sentence and not joint.
SECTION 8.14 Fiscal Agent Appointed; Concerning the Fiscal Agent.
(a) The Trustee hereby appoints ABN AMRO Bank, N.V. as the initial
Fiscal Agent hereunder for the purposes of exercising and performing the
obligations and duties imposed upon the Fiscal Agent hereunder. The Fiscal Agent
shall at all times maintain a long-term unsecured debt rating of no less than
"AA-" from S&P and "AA-" from Fitch (and if the Fiscal Agent is rated "AA-" by
Fitch, a short-term rating of at least "F-1+" in the case of Fitch) (or, in the
case of either Rating Agency, such other rating as each such Rating Agency shall
permit so long as it is accompanied by a statement in writing that any of the
then-current ratings assigned by such Rating Agency to the respective Classes of
the Certificates would not be downgraded, qualified (if applicable) or withdrawn
as a result of such rating).
(b) The Fiscal Agent undertakes to make Advances as specifically set
forth hereunder and the Fiscal Agent shall not be liable except for the making
of Advances.
(c) No provision of this Agreement shall be construed to relieve the
Fiscal Agent from liability for its own negligent failure to act, bad faith or
its own willful misfeasance; provided, however, that (i) the duties and
obligations of the Fiscal Agent shall be determined solely by the express
provisions hereunder, and the Fiscal Agent shall not be liable except for the
performance of such duties and obligations, (ii) no implied covenants or
obligations shall be read into this Agreement against the Fiscal Agent and, in
the absence of bad faith on the part of the Fiscal Agent, the Fiscal 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 instruments furnished to the
Fiscal Agent by the Primary Servicer, the Master Servicer, the Special Servicer
or the Depositor and which on their face do not contradict the requirements of
this Agreement, and (iii) the provisions of clauses (ii) and (iii) of Section
8.01(c) shall apply to the Fiscal Agent.
The Fiscal Agent also shall have the benefit of provisions of
clauses (a), (b), (c), (d), (e), (f) and (h) of Section 8.02.
SECTION 8.15 Maintenance of Mortgage File.
Except for the release of items in the Mortgage File contemplated by
this Agreement, including, without limitation, as necessary for the enforcement
of the holder's rights and remedies under the related Mortgage Loan, the Trustee
covenants and agrees that it shall maintain each Mortgage File in the State of
Illinois, and that it shall not move any Mortgage File outside the State of
Illinois, other than as specifically provided for in this Agreement, unless it
shall first obtain and provide, at the expense of the Trustee, an Opinion of
Counsel addressed to the Depositor and the Rating Agencies to the effect that
the Trustee's first priority interest in the Mortgage Notes has been duly and
fully perfected under the applicable laws and regulations of such other
jurisdiction.
ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust and the respective obligations
and responsibilities under this Agreement of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent and the REMIC Administrator
(other than the obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth and the obligations of the REMIC
Administrator to file the final Tax Returns for each of the Component Mortgage
Loan REMIC, REMIC I and REMIC II and to maintain the books and records thereof
for a commercially reasonable period) shall terminate upon payment (or provision
for payment) to the Certificateholders of all amounts held by or on behalf of
the Trustee and required hereunder to be so paid on the Distribution Date
following the earlier to occur of (i) the purchase by the Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) the Master Servicer, or the Special Servicer (in that
order of priority) of all Mortgage Loans and each REO Property remaining in
REMIC I or the Component Mortgage Loan REMIC at a price (to be calculated by the
Master Servicer and the Trustee as of the close of business on the third (3rd)
Business Day preceding the date upon which notice of any such purchase is
furnished to Certificateholders pursuant to the third paragraph of this Section
9.01 and as if the purchase was to occur on such Business Day) equal to (A) the
aggregate Purchase Price of all the Mortgage Loans included in REMIC I and the
Component Mortgage Loan REMIC, plus (B) the appraised value of each REO
Property, if any, included in REMIC I and the Component Mortgage Loan REMIC
(such appraisal to be conducted by a Qualified Appraiser selected by the Master
Servicer or the Special Servicer and approved by the Trustee), minus (c) if such
purchase is being made by the Master Servicer or the Special Servicer, the
aggregate amount of unreimbursed Advances made by the related person, together
with any Advance Interest payable to the related person in respect of such
Advances and any unpaid servicing compensation remaining outstanding (which
items shall be deemed to have been paid or reimbursed to the related person in
connection with such purchase), and (ii) the final payment or other liquidation
(or any Advance with respect thereto) of the last Mortgage Loan or REO Property
remaining in REMIC I or the Component Mortgage Loan REMIC; provided, however,
that in no event shall the trust created hereby continue beyond the expiration
of twenty-one (21) years from the death of the last survivor of the descendants
of Xxxxxx X. Xxxxxxx, the late ambassador of the United States to the Court of
St. Xxxxx, living on the date hereof.
The Majority Certificateholder of the Controlling Class (other than
the Depositor) has the right, and if the Majority Certificateholder of the
Controlling Class fails to exercise such right, the Master Servicer and the
Special Servicer, in that order of priority, has the right to purchase all of
the Mortgage Loans and each REO Property remaining in the Component Mortgage
Loan REMIC or REMIC I as contemplated by clause (i) of the preceding paragraph
by giving written notice to the other parties hereto no later than sixty (60)
days prior to the anticipated date of purchase; provided, however, that the
Master Servicer, the Special Servicer and any Majority Certificateholder of the
Controlling Class (other than the Depositor) each may so elect to purchase all
of the Mortgage Loans and each REO Property remaining in the Component Mortgage
Loan REMIC and REMIC I only if the aggregate Stated Principal Balance of the
Mortgage Pool at the time of such election is less than 1.0% of the aggregate
Cut-off Date Balance of all the Mortgage Loans included in the Trust Fund as of
the Closing Date, including with respect to the ES Component Mortgage Loan, the
ES Component Mortgage Loan Subordinate Components, and with respect to the SB
Component Mortgage Loan, the SB Component Mortgage Loan Subordinate Components
(and also including for the avoidance of doubt the Wellbridge Note B Loan). In
the event that the Master Servicer, the Special Servicer or any Majority
Certificateholder of the Class (other than the Depositor) elects to purchase all
of the Mortgage Loans and each REO Property remaining in the Component Mortgage
Loan REMIC or REMIC I in accordance with the preceding sentence, the Master
Servicer, the Special Servicer or such Majority Certificateholder, as
applicable, shall deposit in the Distribution Account not later than the Master
Servicer Remittance 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)
or, if a Loan Pair is involved, in the related Loan Pair Custodial Account. In
addition, the Master Servicer shall transfer all amounts required to be
transferred to the Distribution Account on such Master Servicer Remittance Date
from the Certificate Account or if a Loan Pair is involved, the related Loan
Pair Custodial Account pursuant to the first paragraph of Section 3.04(e). Upon
confirmation that such final deposits have been made, the Trustee shall release
or cause to be released to the purchaser or its designee, the Mortgage Files for
the remaining Mortgage Loans and shall execute all assignments, endorsements and
other instruments furnished to it by the purchaser, as shall be necessary to
effectuate transfer of the Mortgage Loans and REO Properties remaining in the
Component Mortgage Loan REMIC or REMIC I.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders and, if not previously notified pursuant to the
preceding paragraph, to the other parties hereto mailed (a) in the event such
notice is given in connection with a purchase by the Master Servicer or any
Majority Certificateholder of the Controlling Class (other than the Depositor)
of all of the Mortgage Loans and each REO Property remaining in the Component
Mortgage Loan REMIC or REMIC I, not earlier than the 15th day and not later than
the 25th day of the month next preceding the month of the final distribution on
the Certificates or (b) otherwise during the month of such final distribution on
or before the 5th day of such month, in each case specifying (i) the
Distribution Date upon which the Trust will terminate and final payment on 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.
Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the Available
Distribution Amount and Prepayment Premiums for such date that is allocable to
payments on the relevant Class in accordance with Section 4.01(b) and Section
4.01(c)(i). Final distributions on the Component Mortgage Loan REMIC Senior
Regular Interests and the REMIC I Regular Interests shall be made on such date
as provided in Section 4.01(a)(ii), Section 4.01(b), Section 4.01(c)(iv),
Section 4.01(i) and Section 4.01(j).
Any funds not distributed to any Holder or Holders of Certificates
of any Class on the Final Distribution Date because of the failure of such
Holder or Holders to tender their Certificates shall, on such date, be set aside
and held uninvested in trust and credited to the account or accounts of the
appropriate non-tendering Holder or Holders. If any Certificates as to which
notice has been given pursuant to this Section 9.01 shall not have been
surrendered for cancellation within six (6) months after the time specified in
such notice, the Trustee shall mail a second notice to the remaining
non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one (1) year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such reasonable steps to contact the remaining non-tendering
Certificateholders concerning the surrender of their Certificates as it shall
deem appropriate. The costs and expenses of holding such funds in trust and of
contacting such Certificateholders following the first anniversary of the
delivery of such second notice to the non-tendering Certificateholders shall be
paid out of such funds. No interest shall accrue or be payable to any former
Holder on any amount held in trust hereunder. If by the second anniversary of
the delivery of such second notice, all of the Certificates shall not have been
surrendered for cancellation, the Class R-II Certificateholders shall be
entitled to all unclaimed funds and other assets which remain subject thereto.
SECTION 9.02 Additional Termination Requirements.
In the event the Master Servicer, the Special Servicer or a Majority
Certificateholder of the Controlling Class (other than the Depositor) purchases
all of the Mortgage Loans and each REO Property remaining in the Component
Mortgage Loan REMIC or REMIC I as provided in Section 9.01, the Trust (and,
accordingly, the Component Mortgage Loan REMIC, REMIC I and REMIC II) shall be
terminated in accordance with the following additional requirements, unless the
Master Servicer or such Majority Certificateholder, as applicable, obtains at
its own expense and delivers to the Trustee and the REMIC Administrator an
Opinion of Counsel, addressed to the Trustee and the REMIC Administrator, to the
effect that the failure of the Trust to comply with the requirements of this
Section 9.02 will not result in the imposition of taxes on "prohibited
transactions" of the Component Mortgage Loan REMIC, REMIC I or REMIC II as
defined in Section 860F of the Code or cause the Component Mortgage Loan REMIC,
REMIC I or REMIC II to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(i) the REMIC Administrator shall specify the first day in the
ninety (90) day liquidation period in a statement attached to the final
Tax Return for each of the Component Mortgage Loan REMIC, REMIC I and
REMIC II pursuant to Treasury Regulations Section 1.860F-1;
(ii) during such ninety (90) day liquidation period and at or prior
to the time of making of the final payment on the Certificates, the
Trustee shall sell all of the assets of the Component Mortgage Loan REMIC
and REMIC I to the Master Servicer or the Majority Certificateholder of
the Controlling Class, as applicable, for cash; and
(iii) prior to the end of such ninety (90) day period and at the
time of the making of the final payment on the Certificates, the Trustee
shall distribute or credit, or cause to be distributed or credited, to the
Holders of the Class R-I Certificates (in the case of the Component
Mortgage Loan REMIC and REMIC I) and the Class R-II Certificates (in the
case of REMIC II) all cash on hand (other than cash retained to meet
claims), and each of the Component Mortgage Loan REMIC, REMIC I and REMIC
II shall terminate at that time.
ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01 REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of the
Component Mortgage Loan REMIC, REMIC I and REMIC II as a REMIC under the Code
and, if necessary, under Applicable State Law. Each such election will be made
on Form 1066 or other appropriate federal or state Tax Returns for the taxable
year ending on the last day of the calendar year in which the Certificates are
issued.
(b) (i) The REMIC I Regular Interests are hereby designated as
"regular interests" (within the meaning of Section 860G(a)(1) of the
Code), and the REMIC I Residual Interest, represented by the Class R-I
Certificates, is hereby designated as the sole Class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code), in
REMIC I. The Class XC, Class XP-1, Class XP-2, Class A-1, Class A-2, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class WB-A, Class WB-B, Class
WB-C and Class WB-D Certificates are hereby designated as the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the
Class R-II Certificates are hereby designated as the sole Class of
"residual interest" (within the meaning of Section 860G(a)(2) of the
Code), in REMIC II. For the avoidance of doubt, the Class XC and Class XP
Certificates represent "specified portions," within the meaning of
Treasury Regulations Section 1.860G-1(a)(2), of the interest payments on
the REMIC I Regular Interests corresponding to their respective
Components. None of the REMIC Administrator, the Master Servicer, the
Special Servicer or the Trustee shall, to the extent it is within the
control of such Person, create or permit the creation of any other
"interests" in REMIC I or REMIC II or any interests other than those
specified in Section 10.01(b)(ii) in the Component Mortgage Loan REMIC
(within the meaning of Treasury Regulations Section 1.860D-1(b)(1)).
(ii) The ES Component Mortgage Loan and the SB Component Mortgage
Loan, proceeds thereof, amounts with respect thereto held in the Interest
Reserve Account or the Excess Liquidation Proceeds Account and any REO
Property with respect thereto, shall constitute the sole assets of the
Component Mortgage Loan REMIC. The Component Mortgage Loan REMIC Senior
Regular Interests and the Class ES-A, Class ES-B, Class ES-C, Class ES-D,
Class ES-E, Class ES-F, Class ES-G, Class ES-H, Class SB-A, Class SB-B,
Class SB-C, Class SB-D and Class SB-E Certificates are hereby designated
as the "regular interests" (within the meaning of Section 860G(a)(2) of
the Code) and the Component Mortgage Loan REMIC Residual Interest,
represented by the Class R-I Certificates, is hereby designated as the
sole class of "residual interests" (within the meaning of Section
860G(a)(2) of the Code), in the Component Mortgage Loan REMIC.
(c) The Closing Date is hereby designated as the "startup day" of
each of the Component Mortgage Loan REMIC, REMIC I and REMIC II within the
meaning of Section 860G(a)(9) of the Code. The "latest possible maturity date",
within the meaning of Treasury Regulations Section 1.860G-1(a)(4)(iii) of (i)
the REMIC I Regular Interests (other than the REMIC I Regular Interest LWBA,
REMIC I Regular Interest LWBB, REMIC I Regular Interest LWBC and REMIC I Regular
Interest LWBD) and the REMIC II Regular Certificates (other than the Class WB
Certificates and the Class XP-1 and Class XP-2 Certificates) is the Distribution
Date in September 2036, (ii) the Class ES Certificates and the ES Component
Mortgage Loan REMIC Senior Regular Interest, the Distribution Date in April
2036, (iii) the Class SB Certificates and the SB Component Mortgage Loan REMIC
Senior Regular Interest, the Distribution Date in March 2032, (iv) the Class WB
Certificates and REMIC I Regular Interest LWBA, REMIC I Regular Interest LWBB,
REMIC I Regular Interest LWBC and REMIC I Regular Interest LWBD, the
Distribution Date in April 2035 and (v) the Class XP-1 and Class XP-2
Certificates, the Distribution Dates in April 2006 and April 2010, respectively.
(d) The REMIC Administrator shall maintain separate accounting with
respect to the Component Mortgage Loan REMIC sufficient (i) to account for
distributions on the Component Mortgage Loan REMIC Senior Regular Interests as
assets of REMIC I, (ii) to account for distributions on the ES Component
Mortgage Subordinate Components and the corresponding Class of Class ES
Certificates and on the SB Component Mortgage Loan Subordinate Components and
the corresponding Class of Class SB Certificates, (iii) to pay or cause to be
paid any federal, state or local income tax attributable to the Component
Mortgage Loan REMIC from payments received on or with respect to the related
Mortgage Loans, and (iv) to cause any payments on the related Mortgage Loan in
excess amounts distributable in respect of the Component Mortgage Loan REMIC
Senior Regular Interests and the Component Mortgage Loan REMIC Subordinate
Regular Interests to be distributed to the Class R-I Certificates in respect of
the Component Mortgage Loan REMIC Residual Interest.
(e) The REMIC Administrator is hereby designated as agent for the
Tax Matters Person of each of the Component Mortgage Loan REMIC, REMIC I and
REMIC II and shall: act on behalf of the Trust in relation to any tax matter or
controversy, represent the Trust in any administrative or judicial proceeding
relating to an examination or audit by any governmental taxing authority,
request an administrative adjustment as to any taxable year of the Component
Mortgage Loan REMIC, REMIC I or REMIC II, enter into settlement agreements with
any governmental taxing agency, extend any statute of limitations relating to
any tax item of the Component Mortgage Loan REMIC, REMIC I or REMIC II, and
otherwise act on behalf of each of the Component Mortgage Loan REMIC, REMIC I
and REMIC II in relation to any tax matter or controversy involving such REMIC.
By their acceptance thereof, the Holders of the Residual Certificates hereby
agree to irrevocably appoint the REMIC Administrator as their agent to perform
all of the duties of the Tax Matters Person for the Component Mortgage Loan
REMIC, REMIC I and REMIC II. Subject to Section 10.01(h), the legal expenses and
costs of any action described in this subsection (e) and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust, and the REMIC
Administrator shall be entitled to be reimbursed therefor out of any amounts on
deposit in the Distribution Account as provided by Section 3.05(b).
(f) The REMIC Administrator shall prepare and file or cause to be
prepared and filed, and the Trustee shall sign, all of the Tax Returns in
respect of each of the Component Mortgage Loan REMIC, REMIC I and REMIC II. The
expenses of preparing and filing such returns shall be borne by the REMIC
Administrator without any right of reimbursement therefor.
(g) The REMIC Administrator shall perform or cause to be performed
on behalf of each of the Component Mortgage Loan REMIC, REMIC I and REMIC II all
reporting and other tax compliance duties that are the responsibility of each
such REMIC under the Code, the REMIC Provisions or other compliance guidance
issued by the IRS or any other taxing authority under Applicable State Law.
Included among such duties, the REMIC Administrator shall provide, or cause to
be provided: (i) to any Transferor of a Residual Certificate and the IRS, such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any Person who is a Disqualified
Organization; (ii) to the Certificateholders, such information or reports as are
required by the Code or the REMIC Provisions, including, without limitation,
reports relating to interest, original issue discount and market discount or
premium (using the Prepayment Assumption as required); and (iii) with respect to
REMIC II, Form 8811, or other applicable form, to the IRS, and the name, title,
address and telephone number of the Person who will serve as the representative
of REMIC II.
(h) The REMIC Administrator shall perform its duties more
specifically set forth hereunder in a manner consistent with maintaining the
status of each of the Component Mortgage Loan REMIC, REMIC I and REMIC II as a
REMIC under the REMIC Provisions (and each of the other parties hereto shall
assist it, to the extent reasonably requested by it). The REMIC Administrator
shall not knowingly take (or cause any of the Component Mortgage Loan REMIC,
REMIC I or REMIC II to take) any action or fail to take (or fail to cause to be
taken) any action within the scope of its duties more specifically set forth
hereunder that, under the REMIC Provisions, if taken or not taken, as the case
may be, could result in an Adverse REMIC Event with respect to the Component
Mortgage Loan REMIC, REMIC I or REMIC II, unless the REMIC Administrator has
received an Opinion of Counsel to the effect that the contemplated action will
not result in an Adverse REMIC Event. None of the other parties hereto shall
take any action (whether or not authorized hereunder) as to which the REMIC
Administrator 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. In addition, prior to taking any action with respect to the
Component Mortgage Loan REMIC, REMIC I or REMIC II, or causing the Component
Mortgage Loan REMIC, REMIC I or REMIC II to take any action, that is not
expressly permitted under the terms of this Agreement, each of the other parties
hereto will consult with the REMIC Administrator, in writing, with respect to
whether such action could cause an Adverse REMIC Event to occur. None of the
parties hereto shall take any such action or cause the Component Mortgage Loan
REMIC, REMIC I or REMIC II to take any such action as to which the REMIC
Administrator has advised it in writing that an Adverse REMIC Event could occur.
The REMIC Administrator may consult with counsel to make such written advice,
and the cost of same shall be borne: (i) if such action that is not expressly
permitted by this Agreement would be of a material benefit to or otherwise in
the best interests of the Certificateholders as a whole, by the Trust and shall
be paid by the Trustee at the direction of the REMIC Administrator out of
amounts on deposit in the Distribution Account; and (ii) otherwise by the party
seeking to take the action not permitted by this Agreement.
In the event that any tax is imposed on the Component Mortgage Loan
REMIC, REMIC I or REMIC II, including, without limitation, "prohibited
transactions" taxes as defined in Section 860F(a)(2) of the Code, any taxes on
contributions to the Component Mortgage Loan REMIC, REMIC I or REMIC II after
the Startup Day pursuant to Section 860G(d) of the Code, and any other tax
imposed by the Code or any applicable provisions of state or local tax laws
(other than any tax permitted to be incurred by the Special Servicer pursuant to
Section 3.17(a)), such tax, together with all incidental costs and expenses
(including, without limitation, penalties and reasonable attorneys' fees), shall
be charged to and paid by: (i) the REMIC Administrator, if such tax arises out
of or results from a breach by the REMIC Administrator of any of its obligations
under this Article X; (ii) the Trustee, if such tax arises out of or results
from a breach by the Trustee of any of its obligations under this Article X;
(iii) the Master Servicer, if such tax arises out of or results from a breach by
the Master Servicer of any of its obligations under Article III or this Article
X; (iv) the Special Servicer, if such tax arises out of or results from a breach
by the Special Servicer of any of its obligations under Article III or this
Article X; or (v) the Trust in all other instances. Any tax permitted to be
incurred by the Special Servicer pursuant to Section 3.17(a) shall be charged to
and paid by the Trust. Any such amounts payable by the Trust in respect of taxes
shall be paid by the Trustee at the direction of the REMIC Administrator out of
amounts on deposit in the Distribution Account.
(i) The REMIC Administrator and, to the extent that records are
maintained thereby in the normal course of its business, each of the other
parties hereto shall, for federal income tax purposes, maintain books and
records with respect to each of the Component Mortgage Loan REMIC, REMIC I and
REMIC II on a calendar year and on an accrual basis. Such records with respect
to REMIC I shall include, for each Distribution Date, the applicable REMIC I
Principal Balance, REMIC I Remittance Rate, and each category of distribution on
or with respect to the REMIC I Regular Interests and the REMIC I Residual
Interest. Such records with respect to the Component Mortgage Loan REMIC shall
include, for each Distribution Date, the ES Component Mortgage Loan Senior
Balance, the SB Component Mortgage Loan Senior Balance and the Certificate
Principal Balances of the respective Component Mortgage Loan REMIC Subordinate
Regular Interests; the ES Component Mortgage Loan Accrued Component Interest and
the SB Component Mortgage Loan Accrued Component Interest; and each other
category of distribution on or with respect to the Component Mortgage Loan REMIC
Regular Interests or the Component Mortgage Loan REMIC Residual Interest.
(j) Following the Startup Day therefor, the Trustee shall not accept
any contributions of assets to the Component Mortgage Loan REMIC, REMIC I or
REMIC II unless it shall have received an Opinion of Counsel (at the expense of
the party seeking to cause such contribution) to the effect that the inclusion
of such assets in such REMIC will not cause: (i) such REMIC to fail to qualify
as a REMIC at any time that any Certificates are outstanding; or (ii) the
imposition of any tax on such REMIC under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(k) None of the REMIC Administrator, the Master Servicer, the
Special Servicer or the Trustee shall consent to or, to the extent it is within
the control of such Person, permit: (i) the sale or disposition of any of the
Mortgage Loans (except in connection with (A) a breach of any representation or
warranty of the Mortgage Loan Seller regarding the Mortgage Loans or as
otherwise provided for in Section 2.03, (B) the foreclosure, default or imminent
default of a Mortgage Loan, including but not limited to, the sale or other
disposition of a Mortgaged Property acquired by deed-in-lieu of foreclosure, (C)
the bankruptcy of the Component Mortgage Loan REMIC, REMIC I or REMIC II, or (D)
the termination of the Trust pursuant to Article IX of this Agreement); (ii) the
sale or disposition of any investments in the Certificate Account or the REO
Account for gain; or (iii) the acquisition of any assets for the Trust Fund
(other than a Mortgaged Property acquired through foreclosure, deed-in-lieu of
foreclosure or otherwise in respect of a defaulted Mortgage Loan and other than
Permitted Investments acquired in connection with the investment of funds in the
Certificate Account or the REO Account); in any event unless it has received an
Opinion of Counsel (from and at the expense of the party seeking to cause such
sale, disposition, or acquisition) to the effect that such sale, disposition, or
acquisition will not cause: (x) the Component Mortgage Loan REMIC, REMIC I or
REMIC II to fail to qualify as a REMIC at any time that any Certificates are
outstanding; or (y) the imposition of any tax on the Component Mortgage Loan
REMIC, REMIC I or REMIC II under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(l) Except as otherwise permitted by Section 3.17(a), none of the
REMIC Administrator, the Master Servicer, the Special Servicer or the Trustee
shall enter into any arrangement by which the Component Mortgage Loan REMIC,
REMIC I or REMIC II will receive a fee or other compensation for services or, to
the extent it is within the control of such Person, permit the Component
Mortgage Loan REMIC, REMIC I or REMIC II to receive any income from assets other
than "qualified mortgages" as defined in Section 860G(a)(3) of the Code or
"permitted investments" as defined in Section 860G(a)(5) of the Code. At all
times as may be required by the Code, the REMIC Administrator shall make
reasonable efforts to ensure that substantially all of the assets of the
Component Mortgage Loan REMIC, REMIC I and REMIC II will consist of "qualified
mortgages" as defined in Section 860G(a)(3) of the Code and "permitted
investments" as defined in Section 860G(a)(5) of the Code.
SECTION 10.02 Depositor, Master Servicer, Special Servicer and
Trustee to Cooperate with REMIC Administrator.
(a) The Depositor shall provide or cause to be provided to the REMIC
Administrator, within ten (10) days after the Closing Date, all information or
data that the REMIC Administrator 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 assumption and projected cash
flow of the Certificates.
(b) The Master Servicer, the Special Servicer and the Trustee shall
each furnish such reports, certifications and information, and access to such
books and records maintained thereby, as may relate to the Certificates or the
Trust Fund and as shall be reasonably requested by the REMIC Administrator in
order to enable it to perform its duties hereunder.
SECTION 10.03 Fees of the REMIC Administrator.
In the event the Trustee and the REMIC Administrator are not the
same Person, the Trustee covenants and agrees to pay to the REMIC Administrator
from time to time, and the REMIC Administrator shall be entitled to, reasonable
compensation (as set forth in a written agreement between the Trustee and the
REMIC Administrator) for all services rendered by it in the exercise and
performance of any of the obligations and duties of the REMIC Administrator
hereunder.
SECTION 10.04 Use of Agents.
The REMIC Administrator may execute any of its obligations and
duties hereunder either directly or by or through agents or attorneys-in-fact
consented to by the Trustee, which consent shall not be unreasonably withheld;
provided that the REMIC Administrator shall not be relieved of its liabilities,
duties and obligations hereunder by reason of the use of any such agent or
attorney-in-fact.
SECTION 10.05 [RESERVED]
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders or any Companion Loan Noteholder, (i) to cure any ambiguity,
(ii) to correct, modify or supplement any provision herein which may be
defective or may be inconsistent with any other provision herein, (iii) to add
any other provisions with respect to matters or questions arising hereunder
which shall not be inconsistent with the provisions hereof, (iv) to relax or
eliminate any requirement hereunder imposed by the REMIC Provisions if the REMIC
Provisions are amended or clarified such that any such requirement may be
relaxed or eliminated; (v) if such amendment, as evidenced by an Opinion of
Counsel delivered to the Trustee and the REMIC Administrator, is reasonably
necessary to comply with any requirements imposed by the Code or any successor
or amendatory statute or any temporary or final regulation, revenue ruling,
revenue procedure or other written official announcement or interpretation
relating to federal income tax laws or any such proposed action which, if made
effective, would apply retroactively to the Component Mortgage Loan REMIC, REMIC
I or REMIC II at least from the effective date of such amendment, or would be
necessary to avoid the occurrence of a prohibited transaction or to reduce the
incidence of any tax that would arise from any actions taken with respect to the
operation of the Component Mortgage Loan REMIC, REMIC I or REMIC II; (vi) to
modify, add to or eliminate any provisions of Section 5.02(d)(i), (ii) and
(iii); or (vii) for any other purpose; provided that such amendment (other than
any amendment for the specific purposes described in clauses (v) and (vi) above)
shall not, as evidenced by an Opinion of Counsel obtained by or delivered to the
Trustee, adversely affect in any material respect the interests of any
Certificateholder without such Certificateholder's written consent; and provided
further that such amendment (other than any amendment for any of the specific
purposes described in clauses (i) through (vi) above) shall not result in a
downgrade, qualification (if applicable) or withdrawal of any rating then
assigned to any Class of Certificates by any Rating Agency (as evidenced by
written confirmation to such effect from each Rating Agency obtained by or
delivered to the Trustee).
(b) This Agreement may also be amended from time to time by the
mutual agreement of the parties hereto, with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received or advanced on the Mortgage Loans and any REO Properties
which are required to be distributed on any Certificate without the written
consent of the Holder of such Certificate, (ii) adversely affect in any material
respect the interests of the Holders of any Class of Certificates in a manner
other than as described in clause (b)(i) without the written consent of the
Holders of all Certificates of such Class, (iii) change the definition of the
Servicing Standard, without the written consent of the Holders of all
Certificates outstanding, or (iv) modify the provisions of this Section 11.01
without the written consent of the Holders of all Certificates then outstanding.
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section 11.01, Certificates
registered in the name of the Depositor, the Master Servicer, the Special
Servicer or any of their respective Affiliates shall be entitled to the same
Voting Rights with respect to matters described above as they would if any other
Person held such Certificates. For purposes of this Section 11.01(b), a Class of
Certificates is an "affected Class" if and only if it would, as the result of
any such amendment, experience any of the effects described in clauses (i), (ii)
and (iii) of this Section 11.01(b).
(c) At the direction of the Holders of Certificates entitled to 100%
of the Voting Rights allocated to the affected Classes, and with the agreement
of all of the parties hereto (none of which shall withhold its agreement unless
its obligations hereunder would be materially increased), the Agreement shall be
amended 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, including without limitation,
(i) to cause such Classes to be restructured, (ii) to create in connection with
any restructuring one or more new classes of Certificates, which may include,
without limitation, one or more classes of Certificates entitled to payments of
principal on a priority basis from collections in respect of some or all of the
Mortgage Loans, (iii) to make in connection with any such restructuring one or
more additional REMIC elections with respect to the Trust Fund, (iv) to provide
for the book-entry registration of any such existing or newly created classes of
Certificates, and (v) to provide for any holders of any Classes of
Non-Registered Certificates remaining as such after giving effect to such
amendment to receive or have the right to request to receive any statements,
reports or other information which the holders of the Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O and Class
P Certificates are entitled to receive or request to receive under this
Agreement. For purposes of this Section 11.01(c), a Class of Certificates is an
"affected Class" if and only if it would, as the result of any such amendment,
experience any of the effects described in clauses (i), (ii) and (iii) of
Section 11.01(b). Any restructuring pursuant to this Section 11.01(c) shall
require, at the expense of the requesting holders, the prior written approval of
each Rating Agency and confirmation of the ratings of each such Class of
Certificates (taking into account such restructuring), including confirmation
that such restructuring will not result in the downgrade, qualification (if
applicable) or withdrawal of the ratings then assigned to the Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O
and Class P Certificates.
(d) Notwithstanding any contrary provision of this Agreement,
neither the Trustee nor the REMIC Administrator shall consent to any amendment
to this Agreement unless it shall first have obtained or been furnished with an
Opinion of Counsel to the effect that such amendment or the exercise of any
power granted to any party hereto in accordance with such amendment will not
result in the imposition of a tax on the Component Mortgage Loan REMIC, REMIC I,
REMIC II or any REMIC in which a Companion Loan is included pursuant to the
REMIC Provisions or cause the Component Mortgage Loan REMIC, REMIC I, REMIC II
or any REMIC in which a Companion Loan is included to fail to qualify as a REMIC
at any time that any Certificates are outstanding.
(e) Promptly after the execution of any such amendment, the Trustee
shall furnish a copy of the amendment to each Certificateholder and each
Companion Loan Noteholder.
(f) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe; provided that such
consents shall be in writing.
(g) The Trustee may but shall not be obligated to enter into any
amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
(h) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (d) shall be borne by the Person seeking the related
amendment, except that if 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 (d) shall be payable out of the Distribution Account.
SECTION 11.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust on direction by the
Trustee, but only (i) upon direction accompanied by an Opinion of Counsel (the
reasonable cost of which may be paid out of the Distribution Account) to the
effect that such recordation materially and beneficially affects the interests
of the Certificateholders and (ii) upon consent of the Directing
Certificateholder. It is acknowledged that the Trustee has no obligation to
monitor whether such recordation in necessary under this Section 11.02.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder or Companion
Loan Noteholder shall not operate to terminate this Agreement or the Trust, nor
entitle such Certificateholder or Companion Loan Noteholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No Certificateholder or Companion Loan Noteholder shall have any
right to vote (except as expressly provided for herein) or in any manner
otherwise control the operation and management of the Trust Fund, or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Certificates, be construed so as to constitute the
Certificateholders and/or the Companion Loan Noteholders from time to time as
partners or members of an association; nor shall any Certificateholder or
Companion Loan Noteholder be under any liability to any third party by reason of
any action taken by the parties to this Agreement pursuant to any provision
hereof.
(c) No Certificateholder or Companion Loan Noteholder shall have any
right by virtue of any provision of this Agreement to institute any suit, action
or proceeding in equity or at law upon or under or with respect to this
Agreement or any Mortgage Loan, unless, with respect to any suit, action or
proceeding upon or under or with respect to this Agreement, such Holder or
Companion Loan Noteholder previously shall have given to the Trustee a written
notice of default hereunder, and of the continuance thereof, as hereinbefore
provided, and (except in the case of a default by the Trustee) the Holders of
Certificates entitled to at least 25% of the Voting Rights shall have made
written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for sixty (60)
days after its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or proceeding. It
is understood and intended, and expressly covenanted by each Certificateholder
with every other Certificateholder and the Trustee, that no one or more Holders
of Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of 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 when delivered to: (1) in the case of Banc of America Commercial
Mortgage Inc., 000 Xxxxx Xxxxx Xxxxxx, XX0-000-000-00, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000 Attention: Xxxxx X. Xxxxxxx, telecopy number: (000) 000-0000 (with copies
to Xxxx Xxxxxxxx, Esq., Assistant General Counsel, Bank of America Corporation,
Bank of America Corporate Center, 000 Xxxxx Xxxxx Xxxxxx (00xx Xxxxx),
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, telecopy number: (000) 000-0000; (2) in the
case of the Master Servicer, Bank of America, N.A., Capital Markets Servicing
Group, 000 X. Xxxxxx Xxxxxx, CA-9-706-06-42, 6th Floor, Xxx Xxxxxxx, Xxxxxxxxxx
00000, Attention: Servicing Manager, telecopy number: (000) 000-0000, Reference:
Banc of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates Series 2003-1, with copy to: Xxxxx X. XxXxxx, Esq., Cadwalader,
Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000; (3) in the case of the Special Servicer, Midland Loan Services,
Inc., 00000 Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000 (for deliveries), and
X.X. Xxx 00000, Xxxxxxx Xxxxxxx, Xxxxxx 00000-0000 (for communications by United
States mail), Attention: President, telecopy number: (000) 000-0000; (4) in the
case of the Trustee and REMIC Administrator, LaSalle Bank National Association,
000 Xxxxx XxXxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Asset Backed
Securities Trust Services Group, Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2003-1, Series 2003-1,
telecopy number: (000) 000-0000; (5) in the case of the Fiscal Agent, ABN AMRO
Bank N.V., 000 Xxxxx XxXxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention:
Asset Backed Securities Trust Services Group, Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2003-1,
Series 2003-1, telecopy number: (000) 000-0000; (6) in the case of the Rating
Agencies, (a) Fitch Ratings, Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Commercial Mortgage-Backed Securities Surveillance, facsimile number
(000) 000-0000; (B) Standard & Poor's Ratings Services, Inc., 00 Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Commercial Mortgage Group
Surveillance Manager, telecopy number (000) 000-0000; and (7) in the case of the
initial Directing Certificateholder, First Chicago Capital Corporation, at 00
Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, attention:
Xxxxxxxx X. Xxxxx or as to each such Person such other address as may hereafter
be furnished by such Person to the parties hereto in writing. Any communication
required or permitted to be delivered to a Certificateholder shall be deemed to
have been duly given when mailed first class, postage prepaid, to the address of
such Holder as shown in the Certificate Register.
SECTION 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07 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. Each
Companion Loan Noteholder and any designees thereof acting on behalf of or
exercising the rights of such Companion Loan Noteholder shall be third-party
beneficiaries to this Agreement with respect to their rights as specifically
provided for herein. Except as specifically contemplated by Sections 3.22, 3.24,
6.03 and 8.05, no other person, including, without limitation, any Mortgagor,
shall be entitled to any benefit or equitable right, remedy or claim under this
Agreement.
SECTION 11.08 Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.09 Notices to and from Rating Agencies.
(a) The Trustee shall promptly 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 hereunder that has not
been cured;
(iii) the resignation or termination of the Master Servicer, the
Special Servicer or the REMIC Administrator and the appointment of a
successor;
(iv) any change in the location of the Distribution Account;
(v) the final payment to any Class of Certificateholders; and
(vi) the repurchase of any Mortgage Loan by the Mortgage Loan Seller
pursuant to Section 2.03.
(b) The Master Servicer shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee and the appointment of
a successor;
(c) The Trustee, the Master Servicer and the Special Servicer, as
applicable, shall furnish to each Rating Agency, with respect to each Loan such
information as the Rating Agency shall reasonably request and which the Trustee,
the Master Servicer or the Special Servicer can reasonably provide in accordance
with applicable law and without waiving any attorney-client privilege relating
to such information. The Trustee, the Master Servicer and the Special Servicer,
as applicable, may include any reasonable disclaimer they deem appropriate with
respect to such information.
(d) Each of the Master Servicer and the Special Servicer shall
promptly furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.13; and
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.14, if any.
In addition, as and to the extent required by Section 3.12(a) and (b), each of
the Master Servicer and the Special Servicer shall promptly furnish to each
Rating Agency copies or summaries (in such format as will be acceptable to the
Rating Agency) of any of the written reports (including, without limitation,
reports regarding property inspections) prepared, and any of the quarterly and
annual or other periodic operating statements and rent rolls collected, by it
pursuant to Section 3.12(b).
(e) The Trustee shall promptly furnish each Rating Agency on a
monthly basis, to the extent not made available on the Trustee's Website, copies
of the statements to the Holders of the REMIC II Certificates required by the
first paragraph of Section 4.02(a).
(f) To the extent reasonably possible, all information and reports
delivered or made available to the Rating Agencies, ES Controlling Holder, SB
Controlling Holder, Wellbridge Controlling Holder or Companion Loan Noteholder
or a Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O and Class P Certificateholder (if requested by such
Holder), by any of the Trustee, the Master Servicer or the Special Servicer
pursuant to this Section 11.09, shall be so delivered or otherwise made
available through an electronic medium.
(g) Each Rating Agency shall provide to the Trustee, upon its
request, a listing of the then current rating on any Certificate then
outstanding.
SECTION 11.10 Requests for Information; Standing Requests.
(a) Any Holder of a Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O or Class P Certificate
shall be entitled to, upon request to the Master Servicer, receive a copy from
the Master Servicer, of any notice or report to be delivered hereunder to the
Directing Certificateholder.
(b) For the avoidance of doubt, it is noted that to the extent that
any Rating Agency, ES Controlling Holder, SB Controlling Holder, Wellbridge
Controlling Holder or Companion Loan Noteholder or any Holder of a Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O or Class P Certificate, is stated herein to be entitled to obtain from
the Master Servicer or the Special Servicer, upon request, any particular report
or other item of information obtained or prepared with respect to the Loans by
the parties to this Agreement in the course of their performance hereof, such
request by such Person may take the form of a standing request to the Master
Servicer or the Special Servicer, as the case may be, to receive all such
reports or items until further notice.
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers or representatives thereunto duly
authorized, in each case as of the day and year first above written.
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Depositor
By: /s/
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
BANK OF AMERICA, N.A.
Master Servicer
By: /s/
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
MIDLAND LOAN SERVICES, INC.
Special Servicer
By: /s/
---------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
LASALLE BANK NATIONAL ASSOCIATION
Trustee and REMIC Administrator
By: /s/
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
ABN AMRO BANK N.V.
Fiscal Agent
By: /s/
---------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
By: /s/
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 9th day of April, 2003, before me, a notary public in and for
said State, personally appeared Xxxxxx Xxxxxxx known to me to be a Vice
President of BANC OF AMERICA COMMERCIAL MORTGAGE INC. one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entities, and acknowledged to me that such person
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. Xxxxxxx
-------------------------
Notary Public
[Notarial Seal]
My commission expires:
2/14/08
---------------------
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On the 1st day of April, 2003, before me, a notary public in and for
said State, personally appeared Xxxxx Xxxxxxx known to me to be a Senior Vice
President of BANK OF AMERICA, N.A., one of the entities that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such entities, and acknowledged to me that such person 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/ Xxxx Xxxxxx
---------------
Notary Public
[Notarial Seal]
My commission expires:
4/9/03
---------------------
STATE OF KANSAS )
) ss.:
COUNTY OF XXXXXXX )
On the 1st day of April, 2003, before me, a notary public in and for
said State, personally appeared Xxxxxxxx X. Xxxxxx, known to me to be a Senior
Vice President of MIDLAND LOAN SERVICES, INC. one of the entities that executed
the within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such person 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 Xxxx
--------------
Notary Public
[Notarial Seal]
My commission expires:
6/11/06
---------------------
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On the 9th day of April, 2003, before me, a notary public in and for
said State, personally appeared Xxxxxxx X. Xxxxx, known to me to be a Vice
President of LASALLE BANK NATIONAL ASSOCIATION which executed the within
instrument, and also known to me to be the person who executed it on behalf of
such entity, and acknowledged to me that such person 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 Xxxxxxxx
------------------
Notary Public
[Notarial Seal]
My commission expires:
07/18/2005
---------------------
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On the 9th day of April, 2003, before me, a notary public in and for
said State, personally appeared Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxx, known to
me to be a Vice President and a Vice President of LASALLE BANK NATIONAL
ASSOCIATION which executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such person 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 Xxxxxxx
------------------
Notary Public
[Notarial Seal]
My commission expires:
07/18/2005
---------------------
EXHIBIT A-1
FORM OF CLASS A-1 CERTIFICATE
CLASS A-1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance
3.8780% per annum of this Certificate as of the
Issue Date:
$______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all
April 1, 2003 the Class A-1 Certificates as
of the Issue Date:
Cut-off Date: April 1, 2003. $339,344,651
Issue Date: April 9, 2003 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool (less the
May 12, 2003 principal balance of the ES
Component Mortgage Loan
Master Servicer: Subordinate Components, the SB
Bank of America, N.A. Component Mortgage Loan
Subordinate Components and the
Wellbridge Note B Loan) as of
the Cut-off Date, after
deducting payments of principal
due on or before such date (the
"Initial Pool Balance"):
$1,032,766,116
Special Servicer: Trustee and REMIC
Midland Loan Services, Inc. Administrator:
LaSalle Bank National
Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. A-1-___ CUSIP No. ______________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LASALLE BANK NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, INC., AND ABN AMRO BANK N.V. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
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, OR (D) 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 TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, the Master Servicer, the
Special Servicer, the Trustee and REMIC Administrator and the Fiscal Agent
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent, the Certificate Registrar and any
agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor) at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, any such Majority Certificateholder or the Master Servicer to purchase
from the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including, with respect to the ES Component Mortgage Loan, the ES Component
Mortgage Loan Subordinate Components, and with respect to the SB Component
Mortgage Loan, the SB Component Mortgage Loan Subordinate Components. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator and the
Fiscal Agent with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
the Component Mortgage Loan REMIC as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LaSalle Bank National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle Bank National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT A-2
FORM OF CLASS A-2 CERTIFICATE
CLASS A-2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
4.6480% per annum this Certificate as of the Issue
Date:
$______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all
April 1, 2003 the Class A-2 Certificates as of
the Issue Date: $506,232,605
Cut-off Date: April 1, 2003.
Issue Date: April 9, 2003 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool (less the
May 12, 2003 principal balance of the ES
Component Mortgage Loan
Master Servicer: Subordinate Components, the SB
Bank of America, N.A. Component Mortgage Loan
Subordinate Components and the
Wellbridge Note B Loan) as of the
Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial
Pool Balance"): $1,032,766,116
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. A-2-___ CUSIP No. ______________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LASALLE BANK NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, INC., AND ABN AMRO BANK N.V. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
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, OR (D) 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 TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, the Master Servicer, the
Special Servicer, the Trustee and REMIC Administrator and the Fiscal Agent
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent, the Certificate Registrar and any
agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor) at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, any such Majority Certificateholder or the Master Servicer to purchase
from the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including, with respect to the ES Component Mortgage Loan, the ES Component
Mortgage Loan Subordinate Components, and with respect to the SB Component
Mortgage Loan, the SB Component Mortgage Loan Subordinate Components. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator and the
Fiscal Agent with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
the Component Mortgage Loan REMIC as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LaSalle Bank National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle Bank National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT A-3
FORM OF CLASS XC CERTIFICATE
CLASS XC COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Notional Amount of
Variable this Certificate as of the Issue
Date:
$______________
Date of Pooling and Servicing Agreement: Class Notional Amount of all the
April 1, 2003 Class XC Certificates as of the
Issue Date: $1,032,766,115
Cut-off Date: April 1, 2003.
Issue Date: April 9, 2003 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool (less the
May 12, 2003 principal balance of the ES
Component Mortgage Loan
Master Servicer: Subordinate Components, the SB
Bank of America, N.A. Component Mortgage Loan
Subordinate Components and the
Wellbridge Note B Loan) as of the
Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial
Pool Balance"): $1,032,766,116
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. XC-__ CUSIP No. ______________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LASALLE BANK NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, INC., AND ABN AMRO BANK N.V. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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, OR (D) 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 TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS
CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Issue Date by the aggregate notional principal balance of all
the Certificates of the same Class as this Certificate (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest in
the Trust Fund evidenced by all the Certificates of the same Class as this
Certificate. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Master Servicer, the Special Servicer, the Trustee and REMIC Administrator
and the Fiscal Agent identified above. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent, the Certificate Registrar and any
agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor) at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, any such Majority Certificateholder or the Master Servicer to purchase
from the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including, with respect to the ES Component Mortgage Loan, the ES Component
Mortgage Loan Subordinate Components, and with respect to the SB Component
Mortgage Loan, the SB Component Mortgage Loan Subordinate Components. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator and the
Fiscal Agent with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
the Component Mortgage Loan REMIC as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LaSalle Bank National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class XC Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle Bank National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
---------- --------------------------------- -------------------- --------
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT A-4
FORM OF CLASS XP-1 CERTIFICATE
CLASS XP-1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Notional Amount of
Variable this Certificate as of the Issue
Date:
$______________
Date of Pooling and Servicing Agreement: Class Notional Amount of all the
April 1, 2003 Class XP-1 Certificates as of
the Issue Date: $655,763,877
Cut-off Date: April 1, 2003.
Issue Date: April 9, 2003 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool (less the
principal balance of the ES
May 12, 2003 Component Mortgage Loan
Subordinate Components, the SB
Master Servicer: Component Mortgage Loan
Bank of America, N.A. Subordinate Components and the
Wellbridge Note B Loan) as of the
Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial
Pool Balance"): $1,032,766,116
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. XP-1-__ CUSIP No. ______________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LASALLE BANK NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, INC., ABN AMRO BANK N.V. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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, OR (D) 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 TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS
CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Issue Date by the aggregate notional principal balance of all
the Certificates of the same Class as this Certificate (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest in
the Trust Fund evidenced by all the Certificates of the same Class as this
Certificate. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Master Servicer, the Special Servicer, the Trustee and REMIC Administrator
and the Fiscal Agent identified above. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent, the Certificate Registrar and any
agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor) at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, any such Majority Certificateholder or the Master Servicer to purchase
from the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including, with respect to the ES Component Mortgage Loan, the ES Component
Mortgage Loan Subordinate Components, and with respect to the SB Component
Mortgage Loan, the SB Component Mortgage Loan Subordinate Components. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator and the
Fiscal Agent with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
the Component Mortgage Loan REMIC as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LaSalle Bank National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class XP-1 Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle Bank National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
---------- --------------------------------- -------------------- --------
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT A-5
FORM OF CLASS XP-2 CERTIFICATE
CLASS XP-2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Notional Amount of
Variable this Certificate as of the Issue
Date:
$______________
Date of Pooling and Servicing Agreement: Class Notional Amount of all the
April 1, 2003 Class XP-2 Certificates as of
the Issue Date: $281,041,661
Cut-off Date: April 1, 2003.
Issue Date: April 9, 2003 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool (less the
principal balance of the ES
May 12, 2003 Component Mortgage Loan
Subordinate Components, the SB
Master Servicer: Component Mortgage Loan
Bank of America, N.A. Subordinate Components and the
Wellbridge Note B Loan) as of the
Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial
Pool Balance"): $1,032,766,116
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. XP-2-__ CUSIP No. ______________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LASALLE BANK NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, INC., ABN AMRO BANK N.V. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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, OR (D) 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 TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS
CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Issue Date by the aggregate notional principal balance of all
the Certificates of the same Class as this Certificate (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest in
the Trust Fund evidenced by all the Certificates of the same Class as this
Certificate. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Master Servicer, the Special Servicer, the Trustee and REMIC Administrator
and the Fiscal Agent identified above. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent, the Certificate Registrar and any
agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor) at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, any such Majority Certificateholder or the Master Servicer to purchase
from the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including, with respect to the ES Component Mortgage Loan, the ES Component
Mortgage Loan Subordinate Components, and with respect to the SB Component
Mortgage Loan, the SB Component Mortgage Loan Subordinate Components. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator and the
Fiscal Agent with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
the Component Mortgage Loan REMIC as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LaSalle Bank National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class XP-2 Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle Bank National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
---------- --------------------------------- -------------------- --------
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT A-6
FORM OF CLASS B CERTIFICATE
CLASS B COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
4.8050% per annum this Certificate as of the Issue
Date:
$______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all
April 1, 2003 the Class B Certificates as of
the Issue Date: $34,855,857
Cut-off Date: April 1, 2003.
Issue Date: April 9, 2003 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool (less the
principal balance of the ES
May 12, 2003 Component Mortgage Loan
Subordinate Components, the SB
Master Servicer: Component Mortgage Loan
Bank of America, N.A. Subordinate Components and the
Wellbridge Note B Loan) as of the
Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial
Pool Balance"): $1,032,766,116
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. B-____ CUSIP No. ______________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LASALLE BANK NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, INC., AND ABN AMRO BANK N.V. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
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, OR (D) 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 TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and REMIC Administrator and the Fiscal Agent
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent, the Certificate Registrar and any
agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor) at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, any such Majority Certificateholder or the Master Servicer to purchase
from the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including, with respect to the ES Component Mortgage Loan, the ES Component
Mortgage Loan Subordinate Components, and with respect to the SB Component
Mortgage Loan, the SB Component Mortgage Loan Subordinate Components. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator and the
Fiscal Agent with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
the Component Mortgage Loan REMIC as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LaSalle Bank National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle Bank National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT A-7
FORM OF CLASS C CERTIFICATE
CLASS C COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
4.8440% per annum this Certificate as of the Issue
Date:
$______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all
April 1, 2003 the Class C Certificates as of
the Issue Date: $12,909,576
Cut-off Date: April 1, 2003.
Issue Date: April 9, 2003 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool (less the
May 12, 2003 principal balance of the ES
Component Mortgage Loan
Master Servicer: Subordinate Components, the SB
Bank of America, N.A. Component Mortgage Loan
Subordinate Components and the
Wellbridge Note B Loan) as of the
Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial
Pool Balance"): $1,032,766,116
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. C-__ CUSIP No. ______________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LASALLE BANK NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, INC., AND ABN AMRO BANK N.V. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
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, OR (D) 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 TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and REMIC Administrator and the Fiscal Agent
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent, the Certificate Registrar and any
agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor) at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, any such Majority Certificateholder or the Master Servicer to purchase
from the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including, with respect to the ES Component Mortgage Loan, the ES Component
Mortgage Loan Subordinate Components, and with respect to the SB Component
Mortgage Loan, the SB Component Mortgage Loan Subordinate Components. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator and the
Fiscal Agent with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
the Component Mortgage Loan REMIC as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LaSalle Bank National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle Bank National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT A-8
FORM OF CLASS D CERTIFICATE
CLASS D COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date:
$______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all
April 1, 2003 the Class D Certificates as of
the Issue Date: $24,528,195
Cut-off Date: April 1, 2003.
Issue Date: April 9, 2003 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool (less the
May 12, 2003 principal balance of the ES
Component Mortgage Loan
Master Servicer: Subordinate Components, the SB
Bank of America, N.A. Component Mortgage Loan
Subordinate Components and the
Wellbridge Note B Loan) as of the
Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial
Pool Balance"): $1,032,766,116
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. D -___ CUSIP No. ______________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LASALLE BANK NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, INC., AND ABN AMRO BANK N.V. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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, OR (D) 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 TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and REMIC Administrator and the Fiscal Agent
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent, the Certificate Registrar and any
agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor) at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, any such Majority Certificateholder or the Master Servicer to purchase
from the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including, with respect to the ES Component Mortgage Loan, the ES Component
Mortgage Loan Subordinate Components, and with respect to the SB Component
Mortgage Loan, the SB Component Mortgage Loan Subordinate Components. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator and the
Fiscal Agent with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
the Component Mortgage Loan REMIC as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LaSalle Bank National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle Bank National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
---------- --------------------------------- -------------------- --------
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________ for the
account of _________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT A-9
FORM OF CLASS E CERTIFICATE
CLASS E COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date:
$______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all
April 1, 2003 the Class E Certificates as of
the Issue Date: $11,618,619
Cut-off Date: April 1, 2003.
Issue Date: April 9, 2003 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool (less the
May 12, 2003 principal balance of the ES
Component Mortgage Loan
Master Servicer: Subordinate Components, the SB
Bank of America, N.A. Component Mortgage Loan
Subordinate Components and the
Wellbridge Note B Loan) as of the
Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial
Pool Balance"): $1,032,766,116
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. E-___ CUSIP No. ______________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LASALLE BANK NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, INC., AND ABN AMRO BANK N.V. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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, OR (D) 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 TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and REMIC Administrator and the Fiscal Agent
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent, the Certificate Registrar and any
agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor) at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, any such Majority Certificateholder or the Master Servicer to purchase
from the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including, with respect to the ES Component Mortgage Loan, the ES Component
Mortgage Loan Subordinate Components, and with respect to the SB Component
Mortgage Loan, the SB Component Mortgage Loan Subordinate Components. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator and the
Fiscal Agent with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
the Component Mortgage Loan REMIC as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LaSalle Bank National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle Bank National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
---------- --------------------------------- -------------------- --------
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT A-10
FORM OF CLASS F CERTIFICATE
CLASS F COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date:
$______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all
April 1, 2003 the Class F Certificates as of
the Issue Date: $11,618,619
Cut-off Date: April 1, 2003.
Issue Date: April 9, 2003 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool (less the
May 12, 2003 principal balance of the ES
Component Mortgage Loan
Master Servicer: Subordinate Components, the SB
Bank of America, N.A. Component Mortgage Loan
Subordinate Components and the
Wellbridge Note B Loan) as of the
Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial
Pool Balance"): $1,032,766,116
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. F-__ CUSIP No. ______________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LASALLE BANK NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, INC., AND ABN AMRO BANK N.V. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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, OR (D) 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 TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and REMIC Administrator and the Fiscal Agent
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent, the Certificate Registrar and any
agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor) at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, any such Majority Certificateholder or the Master Servicer to purchase
from the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including, with respect to the ES Component Mortgage Loan, the ES Component
Mortgage Loan Subordinate Components, and with respect to the SB Component
Mortgage Loan, the SB Component Mortgage Loan Subordinate Components. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator and the
Fiscal Agent with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
the Component Mortgage Loan REMIC as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LaSalle Bank National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle Bank National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
---------- --------------------------------- -------------------- --------
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT A-11
FORM OF CLASS G CERTIFICATE
CLASS G COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date:
$______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all
April 1, 2003 the Class G Certificates as of
the Issue Date: $11,618,619
Cut-off Date: April 1, 2003.
Issue Date: April 9, 2003 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool (less the
May 12, 2003 principal balance of the ES
Component Mortgage Loan
Master Servicer: Subordinate Components, the SB
Bank of America, N.A. Component Mortgage Loan
Subordinate Components and the
Wellbridge Note B Loan) as of the
Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial
Pool Balance"): $1,032,766,116
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. G-__ CUSIP No. ______________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LASALLE BANK NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, INC., AND ABN AMRO BANK N.V. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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, OR (D) 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 TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and REMIC Administrator and the Fiscal Agent
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent, the Certificate Registrar and any
agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor) at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, any such Majority Certificateholder or the Master Servicer to purchase
from the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including, with respect to the ES Component Mortgage Loan, the ES Component
Mortgage Loan Subordinate Components, and with respect to the SB Component
Mortgage Loan, the SB Component Mortgage Loan Subordinate Components. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator and the
Fiscal Agent with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
the Component Mortgage Loan REMIC as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LaSalle Bank National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle Bank National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
---------- --------------------------------- -------------------- --------
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT A-12
FORM OF CLASS H CERTIFICATE
CLASS H COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the
Issue Date:
$______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all
April 1, 2003 the Class H Certificates as of
the Issue Date: $10,327,661
Cut-off Date: April 1, 2003.
Issue Date: April 9, 2003 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool (less the
May 12, 2003 principal balance of the ES
Component Mortgage Loan
Master Servicer: Subordinate Components, the SB
Bank of America, N.A. Component Mortgage Loan
Subordinate Components and the
Wellbridge Note B Loan) as of the
Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial
Pool Balance"): $1,032,766,116
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. H-___ CUSIP No. ______________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LASALLE BANK NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, INC., AND ABN AMRO BANK N.V. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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, OR (D) 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 TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and REMIC Administrator and the Fiscal Agent
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent, the Certificate Registrar and any
agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor) at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, any such Majority Certificateholder or the Master Servicer to purchase
from the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including, with respect to the ES Component Mortgage Loan, the ES Component
Mortgage Loan Subordinate Components, and with respect to the SB Component
Mortgage Loan, the SB Component Mortgage Loan Subordinate Components. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator and the
Fiscal Agent with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
the Component Mortgage Loan REMIC as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LaSalle Bank National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle Bank National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
---------- --------------------------------- -------------------- --------
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT A-13
FORM OF CLASS J CERTIFICATE
CLASS J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date:
$______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all
April 1, 2003 the Class J Certificates as of
the Issue Date:
$21,946,280
Cut-off Date: April 1, 2003.
Issue Date: April 9, 2003 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool (less the
May 12, 2003 principal balance of the ES
Component Mortgage Loan
Master Servicer: Subordinate Components, the SB
Bank of America, N.A. Component Mortgage Loan
Subordinate Components and the
Wellbridge Note B Loan) as of the
Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial
Pool Balance"): $1,032,766,116
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. J-__ CUSIP No. ______________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LASALLE BANK NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, INC., AND ABN AMRO BANK N.V. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO 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 SUCH 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 RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE
"PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA,
THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY
SIMILAR LAW, 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 FISCAL AGENT, THE CERTIFICATE REGISTRAR, THE MASTER
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 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.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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, OR (D) 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 TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and REMIC Administrator and the Fiscal Agent
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent, the Certificate Registrar and any
agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor) at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, any such Majority Certificateholder or the Master Servicer to purchase
from the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including, with respect to the ES Component Mortgage Loan, the ES Component
Mortgage Loan Subordinate Components, and with respect to the SB Component
Mortgage Loan, the SB Component Mortgage Loan Subordinate Components. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator and the
Fiscal Agent with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
the Component Mortgage Loan REMIC as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LaSalle Bank National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle Bank National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
---------- --------------------------------- -------------------- --------
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT A-14
FORM OF CLASS K CERTIFICATE
CLASS K COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date:
$______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all
April 1, 2003 the Class K Certificates as of
the Issue Date: $7,745,746
Cut-off Date: April 1, 2003.
Issue Date: April 9, 2003 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool (less the
May 12, 2003 principal balance of the ES
Component Mortgage Loan
Master Servicer: Subordinate Components, the SB
Bank of America, N.A. Component Mortgage Loan
Subordinate Components and the
Wellbridge Note B Loan) as of the
Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial
Pool Balance"): $1,032,766,116
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. K-___ CUSIP No. ______________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LASALLE BANK NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, INC., AND ABN AMRO BANK N.V. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO 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 SUCH 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 RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE
"PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA,
THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY
SIMILAR LAW, 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 FISCAL AGENT, THE CERTIFICATE REGISTRAR, THE MASTER
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 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.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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, OR (D) 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 TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and REMIC Administrator and the Fiscal Agent
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent, the Certificate Registrar and any
agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor) at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, any such Majority Certificateholder or the Master Servicer to purchase
from the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including, with respect to the ES Component Mortgage Loan, the ES Component
Mortgage Loan Subordinate Components, and with respect to the SB Component
Mortgage Loan, the SB Component Mortgage Loan Subordinate Components. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator and the
Fiscal Agent with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
the Component Mortgage Loan REMIC as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LaSalle Bank National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle Bank National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
---------- --------------------------------- -------------------- --------
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT A-15
FORM OF CLASS L CERTIFICATE
CLASS L COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date:
$______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all
April 1, 2003 the Class L Certificates as of
the Issue Date: $6,454,788
Cut-off Date: April 1, 2003.
Issue Date: April 9, 2003 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool (less the
May 12, 2003 principal balance of the ES
Component Mortgage Loan
Master Servicer: Subordinate Components, the SB
Bank of America, N.A. Component Mortgage Loan
Subordinate Components and the
Wellbridge Note B Loan) as of the
Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial
Pool Balance"): $1,032,766,116
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. L-___ CUSIP No. ______________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LASALLE BANK NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, INC., AND ABN AMRO BANK N.V. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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, OR (D) 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 TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
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 SUCH 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 RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE
"PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA,
THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY
SIMILAR LAW, 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 FISCAL AGENT, THE CERTIFICATE REGISTRAR, THE MASTER
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 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.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and REMIC Administrator and the Fiscal Agent
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent, the Certificate Registrar and any
agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor) at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, any such Majority Certificateholder or the Master Servicer to purchase
from the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including, with respect to the ES Component Mortgage Loan, the ES Component
Mortgage Loan Subordinate Components, and with respect to the SB Component
Mortgage Loan, the SB Component Mortgage Loan Subordinate Components. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator and the
Fiscal Agent with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
the Component Mortgage Loan REMIC as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LaSalle Bank National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class L Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle Bank National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
---------- --------------------------------- -------------------- --------
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT A-16
FORM OF CLASS M CERTIFICATE
CLASS M COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date:
$______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all
April 1, 2003 the Class M Certificates as of
the Issue Date: $6,454,788
Cut-off Date: April 1, 2003.
Issue Date: April 9, 2003 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool (less the
May 12, 2003 principal balance of the ES
Component Mortgage Loan
Master Servicer: Subordinate Components, the SB
Bank of America, N.A. Component Mortgage Loan
Subordinate Components and the
Wellbridge Note B Loan) as of the
Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial
Pool Balance"): $1,032,766,116
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. M-___ CUSIP No. ______________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LASALLE BANK NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, INC., AND ABN AMRO BANK N.V. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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, OR (D) 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 TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
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 SUCH 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 RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE
"PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA,
THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY
SIMILAR LAW, 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 FISCAL AGENT, THE CERTIFICATE REGISTRAR, THE MASTER
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 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.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and REMIC Administrator and the Fiscal Agent
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent, the Certificate Registrar and any
agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor) at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, any such Majority Certificateholder or the Master Servicer to purchase
from the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including, with respect to the ES Component Mortgage Loan, the ES Component
Mortgage Loan Subordinate Components, and with respect to the SB Component
Mortgage Loan, the SB Component Mortgage Loan Subordinate Components. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator and the
Fiscal Agent with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
the Component Mortgage Loan REMIC as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LaSalle Bank National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle Bank National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
---------- --------------------------------- -------------------- --------
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT A-17
FORM OF CLASS N CERTIFICATE
CLASS N COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date:
$______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all
April 1, 2003 the Class N Certificates as of
the Issue Date: $5,163,831
Cut-off Date: April 1, 2003.
Issue Date: April 9, 2003 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool (less the
May 12, 2003 principal balance of the ES
Component Mortgage Loan
Master Servicer: Subordinate Components, the SB
Bank of America, N.A. Component Mortgage Loan
Subordinate Components and the
Wellbridge Note B Loan) as of the
Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial
Pool Balance"): $1,032,766,116
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. N-___ CUSIP No. ______________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LASALLE BANK NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, INC., AND ABN AMRO BANK N.V. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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, OR (D) 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 TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
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 SUCH 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 RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE
"PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA,
THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY
SIMILAR LAW, 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 FISCAL AGENT, THE CERTIFICATE REGISTRAR, THE MASTER
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 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.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and REMIC Administrator and the Fiscal Agent
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent, the Certificate Registrar and any
agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor) at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, any such Majority Certificateholder or the Master Servicer to purchase
from the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including, with respect to the ES Component Mortgage Loan, the ES Component
Mortgage Loan Subordinate Components, and with respect to the SB Component
Mortgage Loan, the SB Component Mortgage Loan Subordinate Components. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator and the
Fiscal Agent with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
the Component Mortgage Loan REMIC as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LaSalle Bank National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class N Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle Bank National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
---------- --------------------------------- -------------------- --------
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT A-18
FORM OF CLASS O CERTIFICATE
CLASS O COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date:
$______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all
April 1, 2003 the Class O Certificates as of
the Issue Date: $ 3,872,872
Cut-off Date: April 1, 2003.
Issue Date: April 9, 2003 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool (less the
May 12, 2003 principal balance of the ES
Component Mortgage Loan
Master Servicer: Subordinate Components, the SB
Bank of America, N.A. Component Mortgage Loan
Subordinate Components and the
Wellbridge Note B Loan) as of the
Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial
Pool Balance"): $1,032,766,116
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. O-___ CUSIP No. ______________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LASALLE BANK NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, INC., AND ABN AMRO BANK N.V. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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, OR (D) 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 TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
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 SUCH 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 RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE
"PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA,
THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY
SIMILAR LAW, 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 FISCAL AGENT, THE CERTIFICATE REGISTRAR, THE MASTER
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 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.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and REMIC Administrator and the Fiscal Agent
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent, the Certificate Registrar and any
agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor) at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, any such Majority Certificateholder or the Master Servicer to purchase
from the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including, with respect to the ES Component Mortgage Loan, the ES Component
Mortgage Loan Subordinate Components, and with respect to the SB Component
Mortgage Loan, the SB Component Mortgage Loan Subordinate Components. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator and the
Fiscal Agent with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
the Component Mortgage Loan REMIC as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LaSalle Bank National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class O Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle Bank National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
---------- --------------------------------- -------------------- --------
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT A-19
FORM OF CLASS P CERTIFICATE
CLASS P COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date:
$______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all
April 1, 2003 the Class P Certificates as of
the Issue Date: $18,073,408
Cut-off Date: April 1, 2003.
Issue Date: April 9, 2003 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool (less the
May 12, 2003 principal balance of the ES
Component Mortgage Loan
Master Servicer: Subordinate Components, the SB
Bank of America, N.A. Component Mortgage Loan
Subordinate Components and the
Wellbridge Note B Loan) as of the
Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial
Pool Balance"): $1,032,766,116
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. P-___ CUSIP No. ______________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LASALLE BANK NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, INC., AND ABN AMRO BANK N.V. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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, OR (D) 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 TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
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 SUCH 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 RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE
"PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA,
THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY
SIMILAR LAW, 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 FISCAL AGENT, THE CERTIFICATE REGISTRAR, THE MASTER
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 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.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer, the Trustee and REMIC Administrator and the Fiscal Agent
identified above. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent, the Certificate Registrar and any
agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor) at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, any such Majority Certificateholder or the Master Servicer to purchase
from the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including, with respect to the ES Component Mortgage Loan, the ES Component
Mortgage Loan Subordinate Components, and with respect to the SB Component
Mortgage Loan, the SB Component Mortgage Loan Subordinate Components. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator and the
Fiscal Agent with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
the Component Mortgage Loan REMIC as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LaSalle Bank National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class P Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle Bank National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
---------- --------------------------------- -------------------- --------
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT A-20
FORM OF CLASS R-I CERTIFICATE
CLASS R-I COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Date of Pooling and Servicing Certificate No. R-I-___
Agreement: April 1, 2003
Percentage Interest evidenced by
Cut-off Date: April 1, 2003. this Certificate in the related
Class: 100%
Issue Date: April 9, 2003
Approximate Aggregate unpaid
First Distribution Date: principal balance of the
May 12, 2003 Mortgage Pool (less the
principal balance of the ES
Master Servicer: Component Mortgage Loan
Bank of America, N.A. Subordinate Components, the SB
Component Mortgage Loan
Subordinate Components and the
Wellbridge Note B Loan) as of the
Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial
Pool Balance"): $1,032,766,116
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LASALLE BANK NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, INC., AND ABN AMRO BANK N.V. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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, OR (D) 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 TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I 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 ANY GOVERNMENTAL PLAN, AS
DEFINED IN SECTION 3(32) OF ERISA 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.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES THE "RESIDUAL
INTEREST" IN TWO "REAL ESTATE MORTGAGE INVESTMENT CONDUITS" (EACH, A "REMIC") AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS AS SET FORTH IN SECTION 5.02 OF THE AGREEMENT.
EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY IF
ANY PERSON BECOMES THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF
SUCH TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL
FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO
HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that [___________] is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Certificates of the same Class as this Certificate. The Trust Fund was created
and the Certificates were issued pursuant to a Pooling and Servicing Agreement,
dated as specified above (the "Agreement"), among Banc of America Commercial
Mortgage Inc., as Depositor, and the Master Servicer, the Special Servicer, the
Trustee and REMIC Administrator and the Fiscal Agent identified above. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing
upon the first Distribution Date specified above, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, Distribution Account and,
if established, the REO Account may be made from time to time for purposes other
than, and, in certain cases, prior to, distributions to Certificateholders, such
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii) of such Section 5.02(d) to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Trustee and the REMIC Administrator of any change or impending
change in its status as a Permitted Transferee. In connection with any proposed
transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit C-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not a
Disqualified Organization or a Non-United States Person.
A "Disqualified Organization" is (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, except
for the Federal Home Loan Mortgage Corporation, a majority of whose 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 (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code and
(v) any other Person so designated by the REMIC Administrator based upon an
opinion of counsel that the holding of an Ownership Interest in a Residual
Certificate by such Person may cause the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
A "Non-United States Person" is (a) any Person other than a United
States Person or (b) any Person the income of which is attributable to a foreign
permanent establishment or fixed base, within the meaning of an applicable
income tax treaty, of such Person or any other United States Person. A "United
States Person" is a citizen or resident of the United States, a corporation or
partnership (except to the extent provided in applicable Treasury regulations)
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 the trust and one or more United States
persons have the authority to control all substantial decisions of the trust,
all within the meaning of Section 7701(a)(30) of the Code.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent, the Certificate Registrar and any
agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor) at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, any such Majority Certificateholder or the Master Servicer to purchase
from the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including, with respect to the ES Component Mortgage Loan, the ES Component
Mortgage Loan Subordinate Components, and with respect to the SB Component
Mortgage Loan, the SB Component Mortgage Loan Subordinate Components. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator and the
Fiscal Agent with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
the Component Mortgage Loan REMIC as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LaSalle Bank National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle Bank National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
---------- --------------------------------- -------------------- --------
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT A-21
FORM OF CLASS R-II CERTIFICATE
CLASS R-II COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Date of Pooling and Servicing Certificate No. R-II - __
Agreement: April 1, 2003
Percentage Interest evidenced by
Cut-off Date: April 1, 2003. this Certificate in the related
Class: 100%
Issue Date: April 9, 2003
Approximate Aggregate unpaid
First Distribution Date: principal balance of the
May 12, 2003 Mortgage Pool (less the
principal balance of the ES
Master Servicer: Component Mortgage Loan
Bank of America, N.A. Subordinate Components, the SB
Component Mortgage Loan
Subordinate Components and the
Wellbridge Note B Loan) as of the
Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial
Pool Balance"): $1,032,766,116
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., LASALLE BANK NATIONAL
ASSOCIATION, MIDLAND LOAN SERVICES, INC., AND ABN AMRO BANK N.V. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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, OR (D) 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 TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I 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 ANY GOVERNMENTAL PLAN, AS
DEFINED IN SECTION 3(32) OF ERISA 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.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES THE "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS AS SET FORTH IN SECTION 5.02 OF THE AGREEMENT.
EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY. IF
ANY PERSON BECOMES THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF
SUCH TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL
FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO
HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that [____________] is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Certificates of the same Class as this Certificate. The Trust Fund was created
and the Certificates were issued pursuant to a Pooling and Servicing Agreement,
dated as specified above (the "Agreement"), among Banc of America Commercial
Mortgage Inc., as Depositor, and the Master Servicer, the Special Servicer, the
Trustee and REMIC Administrator and the Fiscal Agent identified above. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing
upon the first Distribution Date specified above, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, Distribution Account and,
if established, the REO Account may be made from time to time for purposes other
than, and, in certain cases, prior to, distributions to Certificateholders, such
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii) of such Section 5.02(d) to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Trustee and the REMIC Administrator of any change or impending
change in its status as a Permitted Transferee. In connection with any proposed
transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit C-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not a
Disqualified Organization or a Non-United States Person.
A "Disqualified Organization" is (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, except
for the Federal Home Loan Mortgage Corporation, a majority of whose 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 (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code and
(v) any other Person so designated by the REMIC Administrator based upon an
opinion of counsel that the holding of an Ownership Interest in a Residual
Certificate by such Person may cause the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
A "Non-United States Person" is (a) any Person other than a United
States Person or (b) any Person the income of which is attributable to a foreign
permanent establishment or fixed base, within the meaning of an applicable
income tax treaty, of such Person or any other United States Person. A "United
States Person" is a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in, or under the laws of, the
United States or any political subdivision thereof, or 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 the trust and one or more United States persons have the
authority to control all substantial decisions of the trust, all within the
meaning of Section 7701(a)(30) of the Code.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent, the Certificate Registrar and any
agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor) at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, any such Majority Certificateholder or the Master Servicer to purchase
from the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including, with respect to the ES Component Mortgage Loan, the ES Component
Mortgage Loan Subordinate Components, and with respect to the SB Component
Mortgage Loan, the SB Component Mortgage Loan Subordinate Components. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator and the Fiscal Agent thereunder and the rights of the
Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator and the
Fiscal Agent with the consent of the Holders of Certificates entitled to at
least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
the Component Mortgage Loan REMIC as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LaSalle Bank National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle Bank National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
---------- --------------------------------- -------------------- --------
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT A-22
FORM OF CLASS ES CERTIFICATE
CLASS ES-A, ES-B, ES-C, ES-D, ES-E, ES-F,
ES-G AND ES-H COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
[______]% per annum this Certificate as of the Issue
Date:
$[____________]
Date of Pooling and Servicing Agreement:
April 1, 2003 Class Principal Balance of all
the Class ES-[_] Certificates as
Issue Date: of the Issue Date:
April 9, 2003 $[__________]
First Distribution Date: Approximate Aggregate unpaid
May 12, 2003 principal balance of the
Mortgage Pool (less the
Master Servicer: principal balance of the ES
Bank of America, N.A. Component Mortgage Loan
Subordinate Components, the SB
Component Mortgage Loan
Subordinate Components and the
Wellbridge Note B Loan) as of the
Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial
Pool Balance"): $1,032,766,116
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. ES-[_]-___ CUSIP No. [______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION, AND ABN AMRO BANK N.V., OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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, OR (D) 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 TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
IN THE ABSENCE OF (a) AN EVENT OF DEFAULT, (b) ACCELERATION OF THE ES COMPONENT
MORTGAGE LOAN, (c) THE ES COMPONENT MORTGAGE LOAN BECOMING A SPECIALLY SERVICED
MORTGAGE LOAN AS THE RESULT OF AN EVENT OF DEFAULT UNDER THE RELATED MORTGAGE
LOAN DOCUMENTS, OR (d) THE OCCURRENCE OF THE MATURITY DATE WITH RESPECT TO THE
ES COMPONENT MORTGAGE LOAN, PRINCIPAL WILL BE PAID ON THE ES SENIOR COMPONENT
AND THE ES-A, ES-B, ES-C, ES-D, ES-E, ES-F, ES-G AND ES-H COMPONENTS (AND THUS,
TO THE CORRESPONDING CLASS OF CLASS ES CERTIFICATES), PRO RATA (IN ACCORDANCE
WITH THEIR RESPECTIVE OUTSTANDING PRINCIPAL BALANCES). IF ANY OF THE EVENTS
DESCRIBED IN (a) THROUGH (d) OF THE PRIOR SENTENCE EXISTS WITH RESPECT TO THE ES
COMPONENT MORTGAGE LOAN, PRINCIPAL WILL BE PAID FIRST TO THE ES SENIOR COMPONENT
UNTIL ITS OUTSTANDING PRINCIPAL BALANCE IS REDUCED TO ZERO AND THEN SEQUENTIALLY
TO EACH OF THE ES-A, ES-B, ES-C, ES-D, ES-E, ES-F, ES-G AND ES-H COMPONENTS
UNTIL THE PRINCIPAL BALANCE OF EACH SUCH COMPONENT IS REDUCED TO ZERO.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and Master Servicer, Special
Servicer, Trustee, the Fiscal Agent and REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
The Class ES Certificates are limited in right of distribution to
certain collections and recoveries respecting the ES Component Mortgage Loan,
all as more specifically set forth herein and in the Agreement. As provided in
the Agreement, withdrawals from the Certificate Account, the Distribution
Account and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to the Class
ES Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the ES Component Mortgage
Loan and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent, the Certificate Registrar and any
agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor) at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, any such Majority Certificateholder or the Master Servicer to purchase
from the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including, with respect to the ES Component Mortgage Loan, the ES Component
Mortgage Loan Subordinate Components, and with respect to the SB Component
Mortgage Loan, the SB Component Mortgage Loan Subordinate Components. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LaSalle Bank National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class ES-[__] Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle Bank National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
---------- --------------------------------- -------------------- --------
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT A-23
FORM OF CLASS SB CERTIFICATE
CLASS SB-A, SB-B, SB-C, SB-D AND SB-E COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
[______]% per annum this Certificate as of the Issue
Date:
$[____________]
Date of Pooling and Servicing Agreement:
April 1, 2003 Class Principal Balance of all
the Class SB-[_] Certificates as
Issue Date: of the Issue Date:
April 9, 2003 $[__________]
First Distribution Date: Approximate Aggregate unpaid
May 12, 2003 principal balance of the
Mortgage Pool (less the
Master Servicer: principal balance of the ES
Bank of America, N.A. Component Mortgage Loan
Subordinate Components, the SB
Component Mortgage Loan
Subordinate Components and the
Wellbridge Note B Loan) as of the
Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial
Pool Balance"): $1,032,766,116
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. SB-[_]-___ CUSIP No. [______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION, AND ABN AMRO BANK N.V., OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
[FOR CLASS SB-D AND CLASS SB-E CERTIFICATES:] 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 SUCH 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 RESULT IN THE
ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION
PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, 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
FISCAL AGENT, THE CERTIFICATE REGISTRAR, THE MASTER 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 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.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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, OR (D) 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 TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
IN THE ABSENCE OF (a) AN EVENT OF DEFAULT, (b) ACCELERATION OF THE ES COMPONENT
MORTGAGE LOAN, (c) THE ES COMPONENT MORTGAGE LOAN BECOMING A SPECIALLY SERVICED
MORTGAGE LOAN AS THE RESULT OF AN EVENT OF DEFAULT UNDER THE RELATED MORTGAGE
LOAN DOCUMENTS, OR (d) THE OCCURRENCE OF THE MATURITY DATE WITH RESPECT TO THE
ES COMPONENT MORTGAGE LOAN, PRINCIPAL WILL BE PAID ON THE SB SENIOR COMPONENT
AND THE SB-A, SB-B, SB-C, SB-D AND SB-E COMPONENTS (AND THUS, TO THE
CORRESPONDING CLASS OF CLASS SB CERTIFICATES), PRO RATA (IN ACCORDANCE WITH
THEIR RESPECTIVE OUTSTANDING PRINCIPAL BALANCES). IF ANY OF THE EVENTS DESCRIBED
IN (a) THROUGH (d) OF THE PRIOR SENTENCE EXISTS WITH RESPECT TO THE ES COMPONENT
MORTGAGE LOAN, PRINCIPAL WILL BE PAID FIRST TO THE ES SENIOR COMPONENT UNTIL ITS
OUTSTANDING PRINCIPAL BALANCE IS REDUCED TO ZERO AND THEN SEQUENTIALLY TO EACH
OF THE SB-A, SB-B, SB-C, SB-D AND SB-E COMPONENTS UNTIL THE PRINCIPAL BALANCE OF
EACH SUCH COMPONENT IS REDUCED TO ZERO. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and Master Servicer, Special
Servicer, Trustee, the Fiscal Agent and REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
The Class SB Certificates are limited in right of distribution to
certain collections and recoveries respecting the SB Component Mortgage Loan,
all as more specifically set forth herein and in the Agreement. As provided in
the Agreement, withdrawals from the Certificate Account, the Distribution
Account and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to the Class
SB Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the SB Component Mortgage
Loan and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent, the Certificate Registrar and any
agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor) at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, any such Majority Certificateholder or the Master Servicer to purchase
from the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including, with respect to the ES Component Mortgage Loan, the ES Component
Mortgage Loan Subordinate Components, and with respect to the SB Component
Mortgage Loan, the SB Component Mortgage Loan Subordinate Components. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LaSalle Bank National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class SB-[__] Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle Bank National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
---------- --------------------------------- -------------------- --------
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT A-24
FORM OF CLASS WB CERTIFICATE
CLASS WB-A, WB-B, WB-C AND WB-D COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of
[______]% per annum this Certificate as of the Issue
Date:
$[____________]
Date of Pooling and Servicing Agreement:
April 1, 2003 Class Principal Balance of all
the Class WB-[_] Certificates as
Issue Date: April 9, 2003 of the Issue Date:
$[__________]
First Distribution Date: Approximate Aggregate unpaid
May 12, 2003 principal balance of the
Mortgage Pool (less the
Master Servicer: principal balance of the ES
Bank of America, N.A. Component Mortgage Loan
Subordinate Components, the SB
Component Mortgage Loan
Subordinate Components and the
Wellbridge Note B Loan) as of the
Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial
Pool Balance"): $1,032,766,116
Special Servicer: Trustee and REMIC Administrator:
Midland Loan Services, Inc. LaSalle Bank National Association
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. WB-[_]-___ CUSIP No. [______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., MIDLAND LOAN SERVICES,
INC., LASALLE BANK NATIONAL ASSOCIATION, AND ABN AMRO BANK N.V., OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
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, OR (D) 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 TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
IN THE ABSENCE OF (a) AN EVENT OF DEFAULT, (b) ACCELERATION OF THE WELLBRIDGE
A/B MORTGAGE LOAN, (c) THE WELLBRIDGE A/B MORTGAGE LOAN BECOMING A SPECIALLY
SERVICED MORTGAGE LOAN AS THE RESULT OF AN EVENT OF DEFAULT UNDER THE RELATED
MORTGAGE LOAN DOCUMENTS, OR (d) THE OCCURRENCE OF THE MATURITY DATE WITH RESPECT
TO THE WELLBRIDGE A/B MORTGAGE LOAN, PRINCIPAL WILL BE PAID ON THE CLASS WB-A,
CLASS WB-B, CLASS WB-C AND CLASS WB-D CERTIFICATES, PRO RATA (IN ACCORDANCE WITH
THEIR RESPECTIVE OUTSTANDING PRINCIPAL BALANCES). IF ANY OF THE EVENTS DESCRIBED
IN (a) THROUGH (d) OF THE PRIOR SENTENCE EXISTS WITH RESPECT TO THE WELLBRIDGE
A/B MORTGAGE LOAN, PRINCIPAL WILL BE PAID SEQUENTIALLY TO EACH OF THE CLASS
WB-A, CLASS WB-B, CLASS WB-C AND CLASS WB-D CERTIFICATES UNTIL THE PRINCIPAL
BALANCE OF EACH SUCH CLASS IS REDUCED TO ZERO. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and Master Servicer, Special
Servicer, Trustee, the Fiscal Agent and REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
The Class WB Certificates are limited in right of distribution to
certain collections and recoveries respecting the Wellbridge A/B Mortgage Loan,
all as more specifically set forth herein and in the Agreement. As provided in
the Agreement, withdrawals from the Certificate Account, the Distribution
Account and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to the Class
WB Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Wellbridge A/B Mortgage
Loan and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the REMIC Administrator, the Fiscal Agent, the Certificate Registrar and any
agents of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) 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, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor) at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, any such Majority Certificateholder or the Master Servicer to purchase
from the Trust Fund all Mortgage Loans and any REO Properties remaining therein
including, with respect to the ES Component Mortgage Loan, the ES Component
Mortgage Loan Subordinate Components, and with respect to the SB Component
Mortgage Loan, the SB Component Mortgage Loan Subordinate Components. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
Initial Pool Balance specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or the Component Mortgage Loan REMIC as a REMIC without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York that are applicable to agreements negotiated, made
and to be performed in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LaSalle Bank National Association,
as Trustee
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class WB-[__] Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle Bank National Association,
as Certificate Registrar
By:_____________________________________
Authorized Officer
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
---------- --------------------------------- -------------------- --------
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
__________ _________________________________ ____________________ ________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of Assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by ___________________________________,
the assignee named above, or _________________________________________, as its
agent.
EXHIBIT B
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle Bank National Association,
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Asset Backed Securities Trust Services Group- BACM 2003-1
Banc of America Commercial Mortgage Inc.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Transfer of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2003-1
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of April 1, 2003 (the "Pooling and Servicing
Agreement"), by and among Banc of America Commercial Mortgage Inc., as
Depositor, Bank of America, N.A., as Master Servicer, Midland Loan Services,
Inc., as Special Servicer, and LaSalle Bank National Association, as Trustee and
REMIC Administrator, and ABN AMRO Bank N.V., as Fiscal Agent on behalf of the
holders of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2003-1 (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.
o In connection with such transfer, the Purchaser hereby represents
and warrants to you and the addressees hereof as follows:
(a) Check one of the following:*
[_] 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 "1933 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.
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 "1933 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.
----------
* Each Purchaser must include one of the following two certifications.
(b) The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale to (i) "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 or (ii)
to institutional "accredited investors" meeting the requirements of Rule
501(a)(1), (2), (3) or (7) of Regulation D promulgated under the 1933 Act,
pursuant to any other exemption from the registration requirements of the 1933
Act, subject in the case of this clause (ii) 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 1933 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 1933 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 1933 Act, by reason of a specified exemption from the
registration provisions of the 1933 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.
(c) 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.
(d) The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the 1933 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.
(e) 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.
(f) 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.
(g) 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. Tax Person" and under applicable
law in effect on the date hereof, no taxes will be required to
be withheld by the Bond Registrar (or its agent) with respect
to distributions to be made on the Bond(s). 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 Bond(s) and states that such Purchaser
is not a U.S. Tax Person, (ii)]** two duly executed copies of
IRS Form W-8IMY (with 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
Bond(s) and state that interest on the Bond is, or is expected
to be, effectively connected with a U.S. trade or business.
The Purchaser agrees to provide to the Bond Registrar updated
IRS Forms W-8BEN or IRS Forms W-8ECI, as the case may be]**,
any applicable successor IRS forms, or such other certificates
as the Bond 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 Bond Registrar.
----------
* Each Purchaser must include one of the two alternative certifications.
** Omit for Class R-I and Class R-II.
For this purpose, "U.S. Person" means a citizen or resident of the United States
for U.S. federal income tax purposes, a corporation or partnership (except to
the extent provided in applicable Treasury regulations) 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 the income of which is subject to U.S.
federal income taxation 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 United States fiduciaries 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 were eligible to elect to be treated as U.S. persons).
(h) 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:
_________________________________________________________
_________________________________________________________
_________________________________________________________
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 C-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
PURSUANT TO SECTION 5.02(d)(i)(B)
o STATE OF )
) participation.:
COUNTY OF )
o [NAME OF OFFICER], being first duly sworn, deposes and says
that:
(a) He/She is the [Title of Officer] of [Name of Prospective
Transferee] (the prospective transferee (the "Transferee") of a Banc of America
Commercial Mortgage Inc. Class R-[I] [II] Commercial Mortgage Pass-Through
Certificate, Series 2003-1, evidencing a ____% Percentage Interest in the Class
to which it belongs (the "Residual Certificate")), a
__________________________________ duly organized and validly existing under the
laws of [the State of ____] [the United States], on behalf of which he/she makes
this affidavit. Capitalized terms used but not defined herein have the
respective meanings assigned thereto in the Pooling and Servicing Agreement
pursuant to which the Residual Certificate was issued (the "Pooling and
Servicing Agreement").
(b) The Transferee (i) is [and, as of [date of transfer], will be] a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Certificate, and (ii) is acquiring the Residual
Certificate for its own account or for the account of another prospective
transferee from which it has received an affidavit in substantially the same
form as this affidavit. A "Permitted Transferee" is any person other than a
"disqualified organization" or a "non-United States person". (For this purpose:
(i) a "disqualified organization" means the United States or a possession
thereof, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality, all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax (unless such organization is subject to the tax on unrelated business
taxable income); and (ii) a "non-United States person" is any person other than
a "United States person". A "United States person" is a citizen or resident of
the United States, a corporation or partnership created or organized in, or
under the laws of, the United States, any state or the District of Columbia,
including any entity treated as a corporation or partnership for federal income
tax purposes, or 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 the
trust and one or more United States persons have the authority to control all
substantial decisions of the trust, all within the meaning of Section
7701(a)(30) of the Code.)
(c) The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Certificate to "disqualified organizations" under the
Internal Revenue Code of 1986, as amended; (ii) that such tax would be imposed
on the transferor, or, if such transfer is through an agent (which person
includes a broker, nominee or middleman) for a "disqualified organization", on
the agent; (iii) that the person otherwise liable for the tax shall be relieved
of liability for the tax if the transferee furnishes to such person an affidavit
that the transferee is not a "disqualified organization" and, at the time of
transfer, such person does not have actual knowledge that the affidavit is
false; and (iv) that the Residual Certificate may be a "non-economic residual
interest" within the meaning of Treasury Regulations Section 1.860E-1(c) and
that the transferor of a "non-economic residual interest" will remain liable for
any taxes due with respect to the income on such residual interest, unless no
significant purpose of the transfer is to enable the transferor to impede the
assessment or collection of tax.
(d) The Transferee is aware of the tax imposed on a "pass-through
entity" holding the Residual Certificate if at any time during the taxable year
of the pass-through entity a "disqualified organization" is the record holder of
an interest in such entity. (For this purpose, a "pass- through entity" includes
a regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
(e) The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Certificate by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
(f) The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
(g) The Transferee's taxpayer identification number is
______________.
(h) The Transferee has reviewed the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement, a description of which provisions is set
forth in the Residual Certificate (in particular, clause (ii) of Section 5.02(d)
which authorizes the Trustee to deliver payments on the Residual Certificate to
a person other than the Transferee, in the event that the Transferee holds such
Residual Certificate in violation of Section 5.02(d)), and the Transferee
expressly agrees to be bound by and to comply with such provisions.
(i) No purpose of the Transferee relating to its purchase or any
sale of the Residual Certificate is or will be to impede the assessment or
collection of any tax.
(j) The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Certificate as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Residual
Certificate.
(k) The Transferee will, in connection with any transfer that it
makes of the Residual Certificate, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit C-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Residual Certificate to impede the
assessment or collection of any tax and that it has at the time of such transfer
conducted a reasonable investigation of the financial condition of the proposed
transferee as contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and
has satisfied the requirements of such provision.
(l) The Transferee will not cause income 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 United States
person.
(m) Check the applicable box:
[_] The present value of the anticipated tax liabilities associated
with holding the Residual Certificate does not exceed the sum of:
(i) the present value of any consideration given to the Transferee
to acquire such Residual Certificate;
(ii) the present value of the expected future distributions on such
Residual Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Residual 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.
[_] The transfer of the Residual 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 Section 1.860E-1(c)(6)(i), as to
which income from the Residual 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
Regulations 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 Residual 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 Residual 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.
[Reserved]
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Title of Officer] and its corporate seal to be hereunto attached, attested
by its [Assistant] Secretary, this ___ day of __________, 20__.
[NAME OF TRANSFEREE]
By:_____________________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
_____________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be 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 C-2
FORM OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(d)(i)(D)
__________________, 20___
LaSalle Bank National Association,
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Asset Backed Securities Trust Services Group- BACM 2003-1
Re: Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2003-1, Class R-[I] [II],
evidencing a __% percentage interest in the Class to which it
belongs
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________ (the "Transferor") to ____________________ (the "Transferee") of
the captioned Class R-[I] [II] Certificate (the "Residual Certificate"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of April 1, 2003, by and among Banc of
America Commercial Mortgage Inc., as Depositor, Bank of America, N.A., as Master
Servicer, Midland Loan Services, Inc., as Special Servicer, LaSalle Bank
National Association, as Trustee and REMIC Administrator, and ABN AMRO Bank
N.V., as Fiscal Agent. All terms used herein and not otherwise defined shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferor hereby represents and warrants to you, as Certificate Registrar,
that:
1. No purpose of the Transferor relating to the transfer of the
Residual Certificate by the Transferor to the Transferee is or will be to impede
the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to
you a Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement as Exhibit C-1. The Transferor does not know or believe that
any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Residual Certificate may not be respected for United States federal income
tax purposes (and the Transferor may continue to be liable for United States
federal income taxes associated therewith) unless the Transferor has conducted
such an investigation.
Very truly yours,
________________________________________
(Transferor)
By:_____________________________________
Name:
Title:
EXHIBIT D
REQUEST FOR RELEASE
____________________, 20___
LaSalle Bank National Association,
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Asset Backed Securities Trust Services Group- BACM 2003-1
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under that certain Pooling and Servicing
Agreement dated as of April 1, 2003 (the "Pooling and Servicing Agreement"), by
and among Banc of America Commercial Mortgage Inc., as Depositor, Bank of
America, N.A., as Master Servicer, Midland Loan Services, Inc., as Special
Servicer, LaSalle Bank National Association, as Trustee and REMIC Administrator,
and ABN AMRO Bank N.V., as Fiscal Agent, 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.
Property Name:_____________________________________
Address:___________________________________________
Prospectus 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 undersigned hereby certifies
that all amounts received in connection with the Mortgage Loan
that are required to be credited to the Certificate Account
pursuant to the Pooling and Servicing Agreement, have been or
will be so credited.
____ 2. 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.
[Bank of America, N.A.]
By:_____________________________________
Name:
Title:
Phone:
[MIDLAND LOAN SERVICES, Inc.]
By:_____________________________________
Name:
Title:
Phone:
Please deliver the Mortgage File as
follows:
___________________________________
___________________________________
___________________________________
Attention: ________________________
Phone: ____________________________
EXHIBIT E
FORM OF ERISA REPRESENTATION LETTER
LaSalle Bank National Association,
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Asset Backed Securities Trust Services Group- BACM 2003-1
Banc of America Commercial Mortgage Inc.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Transfer of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2003-1
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2003-1, Class __ (the
"Certificate") issued pursuant to that Pooling and Servicing Agreement, dated as
of April 1, 2003 (the "Pooling and Servicing Agreement"), by and among Banc of
America Commercial Mortgage Inc., as Depositor, Bank of America, N.A., as Master
Servicer, Midland Loan Services, Inc., as Special Servicer, LaSalle Bank
National Association, as Trustee and REMIC Administrator, and ABN AMRO Bank
N.V., as Fiscal Agent. Capitalized terms used and not otherwise defined herein
have the respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
o In connection with such transfer, the undersigned hereby
represents and warrants to you as follows:
(a) 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) 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 any 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 Offered Private 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.
(b) 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 result in the assets of the Trust Fund being deemed to be "plan assets" and
subject to the fiduciary responsibility provisions of ERISA, the prohibited
transaction provisions of the Code or the provisions of any Similar Law (without
regard to the identity or nature of the other Holders of Certificates of any
Class), 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 Fiscal Agent, the Certificate Registrar, the Master
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, which Opinion of Counsel shall not be at
the expense of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Placement Agent, the Certificate Registrar or the
Trust Fund.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___th day of _____, ____.
Very truly yours,
________________________________________
[The Purchaser]
By:_____________________________________
Name:
Title:
EXHIBIT F
FORM OF CUSTODIAL CERTIFICATION
[Date]
Banc of America Commercial Mortgage Inc.,
as Depositor
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Re: Pooling and Servicing Agreement dated as of April 1, 2003 (the
"Agreement") by and among Banc of America Commercial Mortgage Inc.,
as Depositor, Bank of America, N.A., as Master Servicer, Midland
Loan Services, Inc., as Special Servicer, LaSalle Bank National
Association, as Trustee and REMIC Administrator, and ABN AMRO Bank
N.V., as Fiscal Agent, for the Certificateholders of Commercial
Mortgage Pass Through Certificates, Series 2003-1
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the above referenced Agreement, the
Trustee hereby certifies as to each Mortgage Loan listed on the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full), and except as specifically
identified in the exception report annexed hereto, (i) all documents specified
in the definition of "Mortgage File" are in its possession or the possession of
a Custodian on its behalf, or each Mortgage Loan Seller has otherwise satisfied
the delivery requirements in respect of such documents in accordance with
Section 2.01(b) and (ii) all documents received by it or any Custodian in
respect of such Mortgage Loan have been reviewed by it or by a Custodian on its
behalf and appear regular on their face, appear to be executed, and relate to
such Mortgage Loan.
Neither the Trustee or Custodian is under any duty or (i) to
determine whether any of the documents specified in clauses (iii), (v), (vi) and
(viii) through (xii) of the definition of "Mortgage File" exist or are required
to be delivered by the Mortgage Loan Sellers in respect of any Mortgage Loan,
upon which the Trustee may conclusively rely for such purposes, 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 valid, legal, effective, genuine, binding, enforceable, in
recordable form, sufficient or appropriate for the represented purpose, or that
they are other than what they purport to be on their face. Furthermore, none of
the Trustee, the Fiscal Agent, the Master Servicer, the Special Servicer or any
Custodian shall have any liability because the text of any assignment or
endorsement is not in proper or recordable form, if the requisite recording of
any document is not in accordance with the requirements of any applicable
jurisdiction, or if a blanket assignment is not permitted in any applicable
jurisdiction.
Any terms used herein and not defined shall have the respective
meaning assigned to them in the Agreement.
Respectfully,
[Name]
[Title]
cc: Xxxx Xxxxxxxx, Esq., Assistant General Counsel, Bank of America
Corporation
EXHIBIT G
[RESERVED]
EXHIBIT H
FORM OF REQUEST FOR REVIEW
__________________, 20_____
LaSalle Bank National Association,
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Asset Backed Securities Trust Services Group- BACM 2003-1
Re: Pooling and Servicing Agreement dated as of April 1, 2003 (the
"Agreement") by and among Banc of America Commercial Mortgage Inc.,
as Depositor, Bank of America, N.A., as Master Servicer, Midland
Loan Services, Inc., as Special Servicer, LaSalle Bank National
Association, as Trustee and REMIC Administrator, and ABN AMRO Bank
N.V., as Fiscal Agent, for the Certificateholders of Commercial
Mortgage Pass Through Certificates, Series 2003-1
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the above referenced Agreement,
[_________________] requests a review of the following Mortgage file:
Property Name:____________________________________________
Property Address:_________________________________________
Loan Number :_____________________________________________
The results of such review should be returned to
[___________________] at the following address:
___________________________________
___________________________________
___________________________________
Phone: ____________________________
Fax: ____________________________
EXHIBIT I
FORM OF NOTICE REGARDING PURCHASE OPTION EXERCISE
[Letterhead of Master Servicer]
[Date]
[Option Holder]
Re: Banc of America Commercial Mortgage Inc. Commercial Mortgage
Pass-Through Certificates, Series 2003-1
Ladies and Gentlemen:
You are the holder of an assignable option (the "Purchase Option")
to purchase Mortgage Loan number ____ from the Trust Fund, pursuant to Section
3.18 of the pooling and servicing agreement (the "Pooling and Servicing
Agreement") dated as of April 1, 2003, by and among Banc of America Commercial
Mortgage Inc., as depositor, Bank of America, N.A., as master servicer, Midland
Loan Services, Inc., as special servicer, LaSalle Bank National Association, as
trustee and REMIC administrator, and ABN AMRO Bank N.V., as fiscal agent.
Capitalized terms used herein and not otherwise defined shall have the meaning
set forth in the Pooling and Servicing Agreement.
This notice is to inform you that the exercise of your Purchase
Option in respect of Mortgage Loan number ___, pursuant to your Purchase Option
Notice dated _________, a copy of which is attached hereto, is effective.
Pursuant to Section 3.18(d) of the Pooling and Servicing Agreement and your
Purchase Option Notice, closing of [your] [_________'s] acquisition of Mortgage
Loan number ___ shall occur within ten (10) Business Days of your receipt of
this notice, at the place and in the manner described below.
[Describe closing mechanics. Describe documents or instruments
required to be prepared by Option Holder in connection with assignment and
release of the related Mortgage Loan.]
Upon payment of the Option Price, Mortgage Loan number ___ and the
related Mortgaged Property will be released and the related Mortgage Loan File
will be delivered to [you] [__________] or at [your] [_________'s] direction.
Drafts of such instruments of transfer or assignment, in each case
without recourse, reasonably necessary to vest in [you] or [________] the
ownership of Mortgage Loan ____, together with [describe other documents or
instruments reasonably required to consummate the purchase] should be delivered
to [____________] for review as soon as is practicable.
[Provide Master Servicer contact information.]
Please acknowledge receipt of this letter by signing the enclosed
copy and return it to my attention.
Sincerely,
By: ___________________________________
Name:
Title:
Option Holder's Acknowledgment
By: _______________________________
Name:
Title:
Date:
EXHIBIT J
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
FOR ANY LOAN THAT IS NOT AMONG TEN (10) LARGEST LOANS IN POOL, AND THAT HAS AN
OUTSTANDING BALANCE LESS THAN BOTH (a) $20,000,000 AND (b) 5% OF OUTSTANDING
POOL BALANCE
To: Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: Bank of America, N.A., in its capacity
as Master Servicer (the "Master Servicer") under the Pooling and Servicing
Agreement dated as of April 1, 2003 (the "Pooling and Servicing
Agreement"), among the Master Servicer, Midland Loan Services, Inc., as
Special Servicer, LaSalle Bank National Association, as Trustee and REMIC
Administrator, and ABN AMRO Bank N.V., as Fiscal Agent.
Date: _________, 20___
Re: Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates
Series 2003-1
Mortgage Loan (the "Mortgage Loan") identified by loan number _____ on the
Mortgage Loan Schedule attached to the Pooling and Servicing Agreement and
heretofore secured by the Mortgaged Properties identified on the Mortgage
Loan Schedule by the following names:
_______________________
_______________________
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement. [NOTE: ALL TERMS IN THIS
CERTIFICATION MUST BE CONFORMED TO TERMS USED IN THE POOLING AND SERVICING
AGREEMENT]
o As Master 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 Master Servicer has determined, consistent with the Servicing
Standard, 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 Standard & Poor's, (iv) if
they include a principal obligation, the principal due at maturity cannot vary
or change, and (v) are not subject to prepayment, call or early redemption.
(iv) The Master Servicer received an opinion of counsel (from
counsel approved by the Master Servicer in accordance with the Servicing
Standard) that the defeasance will not result in an Adverse REMIC event.
(v) The Master 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 Master 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 Master Servicer's
collection account in the amounts and on the dates specified in the Mortgage
Loan Documents or, in a partial defeasance, the portion of such scheduled
payments attributed to the allocated loan amount for the real property defeased,
increased by any defeasance premium specified in the Mortgage Loan Documents
(the "Scheduled Payments"), (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 Master Servicer received written confirmation from a firm
of independent certified public accountants, who were approved by the Master
Servicer in accordance with the Servicing Standard stating that (i) revenues
from 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 $20,000,000 and five percent of pool balance,
which is less than 5% of the aggregate Certificate Balance of the Certificates
as of the date of the most recent Paying Agent's Monthly Certificateholder
Report received by us (the "Current Report").
(x) 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 Master Servicer
has caused this Notice and Certification to be executed did constitute a
Servicing Officer as of the date of the defeasance described above.
(e) Agree to provide copies of all items listed in Exhibit B to you
upon request.
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
BANK OF AMERICA, N.A.
By:_____________________________________
Name:
Title:
EXHIBIT K
FORM OF CERTIFICATION TO BE PROVIDED WITH FORM 00-X
Xxxx xx Xxxxxxx Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2003-1 (the "Trust")
o I, [identify the certifying individual], certify that:
(a) I have reviewed this annual report on Form 10-K, and all reports on Form
8-K containing distribution date reports filed in respect of periods
included in the year covered by this annual report, of the Trust formed
pursuant to the Pooling and Servicing Agreement (the ("Pooling and
Servicing Agreement") dated as of April 1, 2003 among Banc of America
Commercial Mortgage Inc., as Depositor, Bank of America, N.A., as Master
Servicer, Midland Loan Services, Inc., as Special Servicer, LaSalle Bank
National Association, as Trustee and REMIC Administrator, and ABN AMRO
Bank N.V., as Fiscal Agent;
(b) 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;
(c) Based on my knowledge, the servicing information required to be provided
to the Trustee by the Master Servicer and the Special Servicer under the
Pooling and Servicing Agreement is included in these reports;
(d) I am responsible for reviewing the activities performed by the Master
Servicer and the Special Servicer under the Pooling and Servicing
Agreement and based upon the review required under the Pooling and
Servicing Agreement, and except as disclosed in the report, the Master
Servicer and Special Servicer have fulfilled their obligations under the
Pooling and Servicing Agreement; and
(e) I have disclosed to the Trust's certified public accountants all
significant deficiencies relating to the Master Servicer's or Special
Servicer's compliance with the minimum servicing standards in accordance
with a review conducted in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or similar standard as set forth in the
Pooling and Servicing Agreement.
Date: _____________________________
___________________________________
[Signature]
[Title]
EXHIBIT L
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR
Re: Banc of America Commercial Mortgage Trust 2003-1 (the "Trust"),
Commercial Mortgage Pass-Through Certificates, Series 2003-1
o I, [identify the certifying individual], a[n] [title] of [identify
name of company] on behalf of [identify name of company], as
[Trustee/[Master Servicer/Special Servicer] under that certain
Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") dated as of April 1, 2003, among Banc of America
Commercial Mortgage Inc., as Depositor, Bank of America, N.A., as
Master Servicer, Midland Loan Services, Inc., as Special Servicer,
LaSalle Bank National Association, as Trustee and REMIC
Administrator, and ABN AMRO Bank N.V., as Fiscal Agent, certify to
[identify the individual signing the Xxxxxxxx-Xxxxx Certification],
the Depositor and its partners, representatives, affiliates,
members, managers, directors, officers, employees and agents, to the
extent that the following information is within our normal area of
responsibilities and duties under the Pooling and Servicing
Agreement, and with the knowledge and intent that they will rely
upon this certification, that:
(a) [To be certified by the Trustee] [I have reviewed the annual
report on Form 10-K for the fiscal year [___] (the "Annual
Report"), and all reports on Form 8-K containing statements to
certificateholders filed in respect of periods included in the
year covered by that Annual Report (collectively with the
Annual Reports, the "Reports"), of the Trust;]
(b) [To be certified by the Trustee] [To the best of my knowledge,
the information in the Reports, to the extent prepared by the
[Trustee] (but not including any information provided to the
[Trustee] by the Master Servicer or Special Servicer, other
than to the extent that such information has been aggregated
or manipulated by [Trustee]), 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 the Annual Report;]
(c) [To be certified by the Trustee] [To the best of my knowledge,
the distribution or servicing information required to be
provided to the Trustee by the Master Servicer and the Special
Servicer under the Pooling and Servicing Agreement for
inclusion in the Reports is included in the Reports;]
(d) [To be certified by the Master Servicer and Special Servicer]
[I am responsible for reviewing the activities performed by
[the Master Servicer] [the Special Servicer] under the Pooling
and Servicing Agreement and based upon my knowledge and the
annual compliance review required under the Pooling and
Servicing Agreement, and except as disclosed in the annual
report on Form 10-K for the fiscal year [___], or in any
reports on Form 8-K containing statements to
certificateholders filed in respect of periods included in the
year covered by that annual report, [the Master Servicer] [the
Special Servicer] has fulfilled its obligations under the
Pooling and Servicing Agreement, including the provision of
all Reports required to be submitted to the Trustee
thereunder, and that, to the knowledge of [the Master
Servicer] [the Special Servicer], based upon the review
required under the Pooling and Servicing Agreement with
respect to [the Master Servicer] [the Special Servicer], such
reports do not contain any material misstatements or
omissions; and]
(e) [To be certified by the Master Servicer and Special Servicer]
[I have disclosed to [the Master Servicer's] [the Special
Servicer's] certified public accountants all significant
deficiencies relating to the compliance of [the Master
Servicer] [the Special Servicer] with the minimum servicing
standards in accordance with a review conducted in compliance
with the Uniform Single Attestation Program for Mortgage
Bankers or similar procedure as set forth in the Pooling and
Servicing Agreement.
Date: _____________________________
[NAME OF COMPANY]
___________________________________
[Signature]
[Title]
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Sequence
Number Loan Number Property Name
-------- ----------- --------------------------------------------------------------
1 56955 Xxxxx Crossing Apartments
2 56474 NYU 0xx Xxxxxx Xxxxxxxxxx
0 00000 XXX0 - Xx. Xxxxxxxx Apartments
4 57084 Sugar Run Xxxxxxxxxx
0 00000 XXX0 - Xxxxxxx Xxxxxx Apartments
6 56156 Xxxxxx Apartments
7 56880 Chatham Landing Apartments
8 53371 CLK2 - River Xxxxx Xxxxxxxxxx
0 00000 Xxxxxx Xxxxxx Xxxxxxxxxx
00 00000 CLK - The Courts at Waterford Apartments
11 56965 Regal Springs Apartments
12 56574 Coopers Mill Apartments
13 4198 The Ponds Apartments, Bloomington
14 56888 Xxxxxxxx Xxxxxxxxxx
00 00000 Xxxxxxx Xxxxxxx Xxxxxxxxxx
00 00000 CLK - Sedgefield Apartments
17 56889 Dorado Heights Apartments
18 56656 Terrace Apartments
19 4824 Xxxxxx Apartments (Xxxxxx)
20 4732 Xxxxxx Apartments (Camino Xxxxxxx)
21 56918 Southbrook - Otsego Xxxxxx Xxxxxxxxxx
00 00000 Xxxxxxxx Xxxxx Apartments
23 56360 The Villas Apartments
24 56869 Brookside Manor Apartments
25 4723 Steeplechase Apartments Phase II
26 3637 Pines on the Bay
27 3525 Windsor Xxxxx Xxxxxxxxxx
00 00000 Xxxxxxx Xxxxx Apartments
29 52748 Garden Club Apartments
30 52998 Collegiate Courtyard
31 3636 The Oaks, Gulfport
32 56916 Southbrook - Xxxxxxx Apartments
33 56917 Southbrook - Xxxxxxx Villas Apartments
34 56774 Prairie Oaks Senior Housing
35 56775 The Xxxxxxxxx Xxxxxx Xxxxxxx
00 00000 Xxxxxxxxxx - Xxxxxx-Xxxxx Apartments
37 3341 Xxx Xxxxx Xxxxxxxxxx
00 00000 Xxxxxxxxxx - Xxxxxx-Xxxxxx Apartments
39 56913 Southbrook - Greenwood Apartments
40 4176 Xxxxxxx Xxxxxxx Xxxxxxxxx
00 00000 Xxxxxxxxxx - Xxxxxxxx Apartments
42 5464 Xxxx Drive Apartments
43 56967 Xxxxxxx Xxxxxx Xxxx
00 00000 Xxxxxxxx Xxxx Commons
45 56932 Venice Crossroads
46 53893 Rogue Valley Mall
47 55876 Montour Church Place at Xxx Xxxxxx Xxxxxxxx Xxxxxx
00 00000 Xxxxxxxxxx Oaks Shopping Center
49 56676 Xxxxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxx
00 00000 Xxxxxxx Shopping Xxxxxx
00 00000 Xxxxxxxx Xxxxx Shopping Center
52 00000 Xxx Xxxx Shopping Center
53 51739 H-E-B Shopping Xxxxxx
00 00000 Xxxxxx Xxxxx Shopping Center
55 56878 Kohl's Department Store - Columbia, SC
56 52857 Xxxxx'x Xxxx Xxxxx
00 00000 Xxxxxx Xxxxx Shopping Center
58 00000 Xxx Xxxxx Xxxxxxx Shopping Xxxxxx
00 00000 Xxxxxxxxxx Xxxxxx
60 51805 Xxxxx Village Shopping Center
61 56063 Walgreens - Taylor, MI
62 00000 Xxxxx Xxxxx Shopping Center
63 53139 Pinefield South Center
64 56670 Sav-on Drug - Xxxxxx
00 00000 Xxxxxxxxx - Roselle, NJ
66 52969 Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxx
00 00000 Xxxxxxxxx Xxxxxxx
00 00000 Xxxxxxxxx - Xxxxxx
69 00000 Xxxxxx Xxxxxxxx Shopping Center
70 56902 Walgreens - Clinton Highway, Knoxville
71 52161 Walgreens - Jacksonville, FL
72 56824 Walgreens - 0000 Xxxxxx Xxxxxx, Xxxxxxx, XX
73 56233 CVS - Kannapolis
74 56231 CVS - Xxxxxxx Xxxxx
00 00000 Xxxxxxxxxxx Food Lion
76 56687 Walgreens - Des Moines (Xxxxxxxx), IA
77 3215 Gretna Retail Center
78 56230 CVS - Hickory
79 2777 CVS-Goldsboro
80 56232 CVS - Morganton
81 56184 Vero Beach Xxxxxxx Xxxxxxxx Xxxxxx
00 00000 Xxxxxxxxxx Corners Shopping Xxxxxx
00 00000 Xxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxx
00 00000 Sotheby's Building
85 56570 0000 Xxxxxxxx Xxxx.
86 54611 International Center IV
87 56826 0000 Xxxxxx Xxxxxx Xxxxxx Xxxxxxxx
00 00000 Miramar Centre II
89 52991 Lincoln Center Xxxxxxxxxxxx Xxxxxx Xxxxxxxx
00 00000 ADP Xxxxxxxx
00 00000 Xxxxxxx Xxxx Business Center
92 56690 IKON Office/ Distribution Buildings
93 52876 00-00 Xxxxxx Xxxxxxxxx
94 3568 Rio West Office Xxxxxxx
00 00000 Xxxxxxx Medical Office
96 56922 Xxxxx Industrial Park
97 56485 Office Depot - Signal Hill, CA
98 56555 TNT Logistics Warehouse - Temperance, MI
99 56846 Xxxxxx Xxxxx
000 0000 Xxxxxxxxx Xxxxxxx Xxxxxxxx Center
101.1 56783 Wellbridge Portfolio - Flagship Athletic Club
101.2 56783 Wellbridge Portfolio - Northwest Athletic Club-St. Louis Park
101.3 56783 Wellbridge Portfolio - Northwest Athletic Club-Crosstown
101.4 56783 Wellbridge Portfolio - Northwest Athletic Club-Xxxxx Lake
101.5 56783 Wellbridge Portfolio - New Mexico Sports & Wellness-Midtown
101.6 56783 Wellbridge Portfolio - New Mexico Sports & Wellness-Highpoint
101.7 56783 Wellbridge Portfolio - Xxxxxx Athletic Club
101.8 56783 Wellbridge Portfolio - Athletic Club Boca Raton
101.9 56783 Wellbridge Portfolio - New Mexico Sports & Wellness-Riverpoint
101.1 56783 Wellbridge Portfolio - Northwest Athletic Club-Normandale
101.11 00000 Xxxxxxxxxx Xxxxxxxxx - Xxxxxxxxx Athletic Club-Burnsville
101.12 56783 Wellbridge Portfolio - Xxxxxxxxx Xxxxxxxx Xxxx-00xx Xxxxxx
101.13 56783 Wellbridge Portfolio - Harbour Island Athletic Club
101.14 56783 Wellbridge Portfolio - Xxxxxxxxx Xxxxxxxx Xxxx-Xxxxxxx 000
101.15 56783 Wellbridge Portfolio - Northwest Athletic Club-Oakdale
101 56783 Wellbridge Portfolio (Roll-Up)
102 5315 Xxxxxx Xxxxxxx XXX
000 0000 Xxxxxxxxx Xxxxxxx XXX
104 5059 Dove Canyon MHC
105 5272 Superstition MHC
106 4926 Xxxxxxxx XXX
000 0000 Xxxx Xxxxx XXX
108.1 00000 Xxxxxxxxxxx-Xxxxxxxxx Xxxx Self Storage
108.2 00000 Xxxxxxxxxxx-Xxxx Xxxx Self Storage
108 56951 Morningstar-Pineville and Park Road Self Storage (Roll-Up)
109 56416 Lackland Self Storage
110 56950 Morningstar-Albemarle Self Storage
111 4393 Congress Mini Storage
112 0000 Xxxxxx Xxxxxx Self Storage
Total
Sequence
Number Street Address City State
-------- ------------------------------------------------------------------------------------------ --------------- -----
1 0000 Xxxxx Xxxx Xxxxxxxxxxxx XX
2 000 Xxxxxx (x/x/x 0-00 Xxxx 0xx Xxxxxx) Xxx Xxxx XX
3 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxx XX
4 0000 Xxx Xxxxxx Xxxx Xxxx Xxx Xxxxxx XX
5 000 X. Xxxxxxxx Xxxx Xxxxxxxxxx XX
6 00000 Xxxxxx Xxxxxxxxx Xxxxxxx XX
7 0000 X. Xxxxxxx Xxxxx Xxxxxxx XX
8 0000 Xxxxxx Xxxx Xxxxxxxxxx XX
9 0000 Xxxxxxx Xxxx Xxxxxxxxxxxx XX
10 0000 Xxxxxxxxxxx Xxxx Xxxxxxxxxxx XX
11 00000 Xxxxxxx Xxxx Xxxxxx XX
12 00000 Xxxx Xxxxxxx Xxxxxxx XX
13 2101-2303 General Electric Road Bloomington IL
14 000 Xxxx Xxxxxx XX Xxxxxxxxxxx XX
15 0000 Xxxxxxx Xxxxxxx Xxxxxxxx XX
16 0000 Xxxxxxxxxx Xxxxx Xxxxxxxx XX
17 00000 Xxxxxxxxxx Xxxxxxxxx XX Xxxxxxxxxxx XX
18 00000 00xx Xxxxxx X. Xxxxxxx XX
19 0000 X. Xxxxxx Xxxxxxxxx XX
20 0000 Xxxxxx Xxxxxxx Xxxxxxxxx XX
21 00000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx XX
22 2976 & 0000 Xxxxxx Xxxxxx Xxxx and 3001 & 0000 Xxxxxxxxx Xxxx Xxxxx Xxxxxxxxx XX
23 0000 Xxxxx Xxxx Xxxx Xxxxxxx XX
24 0000 Xxxxxxx Xxx Xxxxxxx XX
25 0000 Xxxxxxxxxxxx Xxxxxx Xxxxxx XX
26 0000 Xxxxxxxx Xxxx Xxxxxx XX
27 000 XX 000xx Xxxxxx Xxxxxxx XX
28 0000 XX Xxxxxxx Xxxxxx Xxxxxxxx XX
29 0000 Xxxxxxx Xxxxx Xxxxxxxxxx XX
30 0000 Xxxxxxx Xxxxxx Xxxxxxxxxx XX
31 0000 Xxxxxx Xxxxx Xxxxxxxx XX
32 0000-0000 Xxxxxxx Xxxxxx Xxx Xxxx XX
33 0000-0000 Xxxxxxx Xxxxxx Xxx Xxxx XX
34 000 Xxxxxxx Xxx Xxxxxxxxx Xxxxxx XX
35 0000 Xxxxxxxx Xxxxx Xxxxxxx XX
36 15126-15132 Roscoe Boulevard Van Nuys CA
37 0000 Xxxxxxx Xxxxx Xxxxxxx XX
38 00000 Xxxxxx Xxxxxxxxx Xxx Xxxx XX
39 00000 Xxxxxx Xxxxxx Xxx Xxxx XX
40 10 - 00 Xxxxxxx Xxxxxxx Xxxxx Xxxxx XX
41 00000 Xxxxxx Xxxxxx Xxx Xxxx XX
42 0000 Xxxx Xxxxx Xxxxxxxxxxx XX
43 000 X. Xxxxxxxxxx Xxxxxx X. Xxxxxxxxx XX
44 7740 - 0000 X. Xxxxxxx Xxx., 355 - 000 X. Xxxxxxxxx Xxxx. and 7650 & 0000 X. Xxxxxxxx Xxx. Xxxxxxxx XX
45 0000 Xxxxxx Xxxxxxxxx Xxx Xxxxxxx XX
46 0000 Xxxxx Xxxxxxxxx Xxxxxx Xxxxxxx XX
00 Xxxxxx Xxxx Xxxxx, 000-000 XxXxxxx Drive and 000-000 Xxxxx Xxxx. Xxxxxxxxxx XX
48 000-000 Xxxx Xxxxxxxxxx Xxxxx Xxxxxxxx XX
49 0000 Xxxxxx Xxxxxx Xxxx Xxxxxxxxxx XX
50 0000 Xxxx 0xx Xxxxxx Xxxxxx XX
51 0000 Xxxxxxx Xxxxxxx Xxxxxxx XX
52 00-00 Xxx Xxxx Xxxxx XX
53 SEC US Highway 77 and Indian Drive Waxahachie TX
54 10118 - 00000 Xxxxxxx Xxxxx Xxxxxxxxx XX
55 00000-000 Xxx Xxxxx Xxxx Xxxxxxxx XX
56 0000 Xxxx Xxxx Xxxx (Xxxxx 000) Xxxxxxxxxx XX
57 13823-13835 Xxxxx Xxxxx Xxxxxxxxx Xxxxxxx XX
58 4705 - 0000 Xxxxxx Xxxxxx Xxxxx Xxxxx Xxxxx XX
59 0000 Xxxxxxxxxxx Xxxx Xxxx Xxxx XX
60 0000 Xxxxxx Xxxx Xxxxxx XX
61 00000 Xxxxxx Xxxx Xxxxxx XX
62 0000 Xxxxx Xxxx 000 Xxxxx Xxxxxxx XX
63 0000-0000 Xxxxx Xxxxxxx Xxxxxxx XX
64 1300-1326 Xxxx 0xx Xxxxxx Xxxxxx XX
65 000 X. Xxxxx Xxxxxx Xxxxxxx XX
66 0000-0000 Xxxxxxxxxx Xxxx Xxxxxxxxx Xxx Xxxxx XX
67 SE/c of XX Xxxxxxx 000 xxx Xxxxx Xxxxx Xxxxxxxxx XX
68 0000 X. Xxxxxx Xxxx Xxxx Xxxxxx XX
69 104 - 000 Xxxxx Xxxxx Xxxx XX
70 0000 Xxxxxxx Xxxxxxx Xxxxxxxxx XX
71 0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxxxxxx XX
72 0000 Xxxxxx Xxxxxx Xxxxxxx XX
73 000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxx XX
74 0000 Xxxxxxxxxx Xxxxxxx Xxxxxxx Xxxxx XX
75 000 X. Xxxxx Xxxxxx (X.X. Xxxxxxx 000 Xxxxx) Xxxxxxxxxxx XX
76 0000 Xxxxx Xxx Xxxx Xxxxxxxx XX
77 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxx XX
78 0000 XX Xxxxxxx 000 Xxxxx Xxxxxxx XX
79 0000 Xxxxx Xxxxxxxx Xxxxx Xxxxxxxxx XX
80 000 Xxxxx Xxxxx Xxxxxx Xxxxxxxxx XX
81 0000 00xx Xxxxxx Xxxx Xxxxx XX
82 0000 X. Xxxxxx Xxxxxx Xxxxxxxxxx XX
83 00000 Xxxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxx XX
84 0000 Xxxx Xxxxxx Xxx Xxxx XX
85 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxx XX
86 0000 X. Xxxxxxx Xxxxxx Xxxxxx XX
87 0000 Xxxxxx Xxxxxx Xxxxxxxxxxxx XX
88 0000 XX 000xx Xxxxxx Xxxxxxx XX
89 0000 Xxxx Xxxxxxx Xxxxx Xxxxxxxxxx XX
90 00000 Xxxxxxxx Xxxxxx Xxxxxxxx XX
91 0000 X.X. 00xx Xxxxxx Xxxxx XX
92 1700 and 0000 Xxxx Xxxx Xxxxx XX
93 00-00 Xxxxxx Xxxxxxxxx Xxxxxxxx XX
94 000 Xxx Xxxx Xxxx Xxxxxxxxxxxxxxx XX
95 00 Xxxxxxx Xxxxxxxxx Xxxxxxx XX
96 000 Xxxxxxx X. XxXxxxxxx Xxxxxxx Xxxxxx XX
97 0000 Xxxx Xxxxxx Xxxxxx Xxxxxx Xxxx XX
98 0000 Xxxxx Xxxx Xxxxxxxxxx XX
99 410 - 000 Xxxxx Xxxxxx Xxxxxx Xxxxxx Xxxxx XX
100 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxx XX
101.1 000 Xxxxxxx Xxxxxx Xxxxx Xxxx Xxxxxxx XX
101.2 0000 Xxxxx Xxxx Xxxx Xx. Xxxxx Xxxx XX
101.3 0000 Xxxxx Xxxx Xxxx Xxxxxxx XX
101.4 0000 XX Xxxxx Xxxx Xxxxx Xxxxxxx XX
101.5 0000 Xxxxxxxx Xxxxxx XX Xxxxxxxxxxx XX
101.6 0000 Xxxxxx Xxxxxx XX Xxxxxxxxxxx XX
101.7 000 Xxxxx Xxxxxx Xxxxxx XX
101.8 0000 Xxxxxx Xxxx Xxxx Xxxxx XX
101.9 0000 Xxxxx Xxxxxxxxx XX Xxxxxxxxxxx XX
101.1 0000 X. 00xx Xxxxxx Xxxxxxxxxxx XX
101.11 00000 Xxxxxxxxx Xxxxx Xxxxxxxxxx XX
101.12 0000 X. 00xx Xxxxxx Xxxxxxxxxxx XX
101.13 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxx XX
101.14 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxxx Center MN
101.15 0000 Xxxxx Xxxx Xxxx Xxxxxxxxxx XX
101
102 0000 Xxxxx Xxxxxxx Xxxx Xxxxxx XX
103 0000 Xxxxx Xxxxx Xxxxx Xxxxxxxxx XX
104 0000 Xxxxx Xxxx Xxxxxx Xxxxxxx Xxxx XX
105 000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxx XX
106 0000 Xxxxxx Xxxxxxxx Xxxx Xxxxxxx XX
107 00 Xxxxxxx Xxxxxx Xxxxxxxx XX
108.1 00000 Xxxxxxxxx Xxxx Xxxxxxxxx XX
108.2 00000 Xxxx Xxxx Xxxxxxxxx XX
108
109 0000 Xxxxxx Xxxxxx Xxxxxx XX
110 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx XX
111 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxx XX
112 0000 Xxxxxx Xxxxxx Xxxxxxxxxx XX
Remaining Term To
Sequence Stated Maturity
Number Zip Code Mortgage Rate (%) AmortizationBasis Original Balance Cut-off Balance (months)
-------- -------- ----------------- ----------------- ---------------- --------------- -----------------
1 22801 5.700% ACT/360 26,000,000.00 25,940,900.20 118
2 10003 6.250% ACT/360 24,000,000.00 23,870,074.83 114
3 70058 6.200% ACT/360 19,280,000.00 19,280,000.00 76
4 43054 4.750% ACT/360 19,000,000.00 19,000,000.00 83
5 40207 6.200% ACT/360 17,120,000.00 17,120,000.00 76
6 32826 7.030% ACT/360 15,755,000.00 15,693,180.30 74
7 32826 5.830% ACT/360 14,500,000.00 14,500,000.00 125
8 63031 6.200% ACT/360 13,360,000.00 13,360,000.00 76
9 32218 4.750% ACT/360 12,400,000.00 12,386,035.17 59
10 37421 6.990% ACT/360 11,220,000.00 11,220,000.00 66
11 75243 5.660% ACT/360 9,300,000.00 9,278,721.99 118
12 77598 6.000% ACT/360 8,500,000.00 8,467,335.50 116
13 61701 5.704% ACT/360 7,440,000.00 7,416,380.01 117
14 87102 5.600% ACT/360 7,328,000.00 7,328,000.00 117
15 66047 5.400% ACT/360 6,600,000.00 6,584,244.50 118
16 29501 6.990% ACT/360 6,545,000.00 6,545,000.00 102
17 87111 5.600% ACT/360 5,936,000.00 5,936,000.00 117
18 98168 5.750% ACT/360 5,500,000.00 5,482,689.90 117
19 90046 5.834% ACT/360 2,500,000.00 2,494,440.22 118
20 90046 5.834% ACT/360 2,300,000.00 2,294,885.00 118
21 91601 5.300% ACT/360 4,546,035.00 4,535,004.00 58
22 53711 5.260% ACT/360 4,536,900.00 4,521,248.44 117
23 77087 7.260% ACT/360 4,470,000.00 4,431,542.50 50
24 33511 5.710% ACT/360 4,300,000.00 4,286,364.11 117
25 43615 6.000% ACT/360 4,000,000.00 3,984,628.47 90
26 39531 6.500% ACT/360 3,680,000.00 3,667,259.39 116
27 97233 5.509% ACT/360 3,600,000.00 3,596,617.16 119
28 97210 5.250% ACT/360 3,500,000.00 3,496,495.79 119
29 95826 6.500% ACT/360 3,400,000.00 3,376,828.37 112
30 27403 6.250% ACT/360 3,330,000.00 3,311,972.89 114
31 39507 6.500% ACT/360 3,280,000.00 3,268,644.23 116
32 91406 5.300% ACT/360 2,766,000.00 2,759,288.26 58
33 91406 5.300% ACT/360 2,729,154.00 2,722,531.67 58
34 53593 5.750% ACT/360 2,300,000.00 2,290,697.84 116
35 52003 5.750% ACT/360 2,285,000.00 2,275,758.54 116
36 91402 5.300% ACT/360 2,025,186.00 2,020,271.87 58
37 39206 6.022% ACT/360 1,800,000.00 1,787,231.32 115
38 91402 5.300% ACT/360 1,726,000.00 1,721,811.84 58
39 91401 5.300% ACT/360 1,347,912.00 1,344,641.27 58
40 14624 6.000% ACT/360 1,350,000.00 1,340,389.71 115
41 91401 5.300% ACT/360 1,336,986.00 1,333,741.77 58
42 61701 5.863% ACT/360 1,225,000.00 1,222,288.56 118
43 02760 4.957% ACT/360 103,950,000.00 103,950,000.00 119
44 80226 7.145% ACT/360 33,000,000.00 32,784,785.19 111
45 90034 5.710% ACT/360 30,500,000.00 30,430,784.44 118
46 97501 7.850% ACT/360 28,750,000.00 28,232,355.73 93
47 15275 7.000% ACT/360 27,000,000.00 26,835,478.56 112
48 91016 7.510% ACT/360 26,780,000.00 26,583,905.04 109
49 30022 6.030% ACT/360 10,571,000.00 10,519,950.21 115
50 78702 7.170% ACT/360 8,160,000.00 8,100,269.55 110
51 76022 7.300% ACT/360 8,100,000.00 8,010,553.42 105
52 03431 6.550% ACT/360 8,000,000.00 7,938,495.94 114
53 75165 7.150% ACT/360 7,500,000.00 7,451,145.57 111
54 95014 6.450% ACT/360 7,000,000.00 6,968,978.19 115
55 29229 6.170% ACT/360 6,900,000.00 6,852,202.00 115
56 02842 6.887% ACT/360 6,720,000.00 6,688,345.61 114
57 85032 7.095% ACT/360 6,250,000.00 6,208,753.59 111
58 54913 5.750% ACT/360 5,678,350.00 5,678,350.00 116
59 94303 6.915% ACT/360 5,600,000.00 5,561,448.10 111
60 75234 6.450% ACT/360 5,300,000.00 5,276,512.08 115
61 48180 7.740% ACT/360 4,590,000.00 4,558,256.64 109
62 78734 7.800% ACT/360 4,500,000.00 4,469,346.00 109
63 20601 6.880% ACT/360 4,435,000.00 4,410,222.78 113
64 92882 6.250% ACT/360 4,250,000.00 4,226,961.90 116
65 07203 6.110% ACT/360 4,100,000.00 4,091,282.90 118
66 92123 6.750% ACT/360 4,100,000.00 4,080,090.60 114
67 30549 6.300% ACT/360 3,500,000.00 3,477,859.25 113
68 48430 6.250% ACT/360 3,330,000.00 3,320,471.38 117
69 30161 7.610% ACT/360 3,200,000.00 3,178,895.13 110
70 37849 5.860% ACT/360 3,000,000.00 2,990,752.62 117
71 32211 7.460% ACT/360 2,792,000.00 2,775,122.02 111
72 38134 6.100% ACT/360 2,740,000.00 2,729,685.57 116
73 28083 7.610% ACT/360 2,615,000.00 2,584,615.55 109
74 27106 7.610% ACT/360 2,443,000.00 2,414,614.12 109
75 27055 6.740% ACT/360 2,400,000.00 2,386,178.01 113
76 50131 6.250% ACT/360 2,040,000.00 2,028,941.71 116
77 70058 8.015% ACT/360 1,900,000.00 1,887,748.84 109
78 28601 7.610% ACT/360 1,772,000.00 1,751,410.64 109
79 27534 7.811% ACT/360 1,700,000.00 1,671,096.71 110
80 28655 7.610% ACT/360 1,670,000.00 1,650,595.77 109
81 32966 7.740% ACT/360 1,600,000.00 1,580,309.81 107
82 34974 7.100% ACT/360 1,225,328.00 1,220,591.33 115
83 78410 7.000% ACT/360 1,200,000.00 1,192,687.93 112
84 10021 5.183% ACT/360 100,382,899.00 100,382,899.00 119
85 77030 6.250% ACT/360 33,500,000.00 33,345,304.24 115
86 75201 7.220% ACT/360 27,000,000.00 27,000,000.00 97
87 19104 6.150% ACT/360 20,500,000.00 20,423,625.60 116
88 33027 6.050% ACT/360 11,340,000.00 11,340,000.00 114
89 85253 7.000% ACT/360 8,775,000.00 8,721,530.57 112
90 48126 5.950% ACT/360 6,510,000.00 6,510,000.00 102
91 34474 6.150% ACT/360 5,760,000.00 5,732,853.05 79
92 31210 5.610% ACT/360 5,560,000.00 5,560,000.00 116
93 11377 6.650% ACT/360 4,275,000.00 4,249,897.13 113
94 22901 7.000% ACT/360 3,110,000.00 3,083,885.63 113
95 07753 6.400% ACT/360 2,480,000.00 2,473,105.49 117
96 02128 5.430% ACT/360 15,000,000.00 14,964,367.08 82
97 90755 6.500% ACT/360 13,600,000.00 13,552,915.07 116
98 48182 6.000% ACT/360 12,100,000.00 11,980,030.18 113
99 92075 5.900% ACT/360 4,650,000.00 4,635,774.89 117
100 86001 6.433% ACT/360 2,775,000.00 2,760,404.06 116
101.1 55344
101.2 55416
101.3 55346
101.4 55432
101.5 87110
101.6 87111
101.7 02459
101.8 33431
101.9 87120
101.1 55439
101.11 55306
101.12 55431
101.13 33602
101.14 55429
101.15 55305
101 7.476% ACT/360 25,500,000.00 25,500,000.00 119
102 85705 5.706% ACT/360 3,400,000.00 3,392,279.14 118
103 84405 5.900% ACT/360 2,830,000.00 2,818,899.10 116
104 88047 5.960% ACT/360 2,200,000.00 2,193,227.20 118
105 85219 6.008% ACT/360 1,775,000.00 1,771,162.95 118
106 77521 5.935% ACT/360 1,660,000.00 1,653,535.06 116
107 33801 5.863% ACT/360 1,600,000.00 1,593,676.18 56
108.1 28134
108.2 28210
108 5.710% ACT/360 9,700,000.00 9,655,890.38 117
109 07001 6.880% ACT/360 4,300,000.00 4,258,373.74 52
110 28215 5.720% ACT/360 3,500,000.00 3,484,108.28 117
111 78745 6.150% ACT/360 1,770,000.00 1,757,699.26 115
112 95838 5.704% ACT/360 1,733,000.00 1,727,476.34 118
1,032,766,115.67
Admini- Primary Master
Sequence Stated Maturity Monthly strative Servicing Servicing
Number Date Due Date Payment Fee Rate Fee Rate Fee Rate Ownership Interest Crossed
-------- --------------- -------- ---------- -------- --------- --------- ---------------------- ----------------
1 02/01/13 1st 150,904.11 0.14200% 0.10000% 0.1400% Fee Simple No
2 10/01/12 1st 147,772.13 0.14200% 0.10000% 0.1400% Fee Simple No
3 08/01/09 1st 123,167.86 0.14200% 0.10000% 0.1400% Fee Simple No
4 03/01/10 1st 0.08200% 0.04000% 0.0800% Fee Simple No
5 08/01/09 1st 109,368.97 0.14200% 0.10000% 0.1400% Fee Simple No
6 06/01/09 1st 105,136.03 0.14200% 0.10000% 0.1400% Fee Simple No
7 09/01/13 1st 85,356.40 0.14200% 0.10000% 0.1400% Fee Simple No
8 08/01/09 1st 85,348.68 0.14200% 0.10000% 0.1400% Fee Simple No
9 03/01/08 1st 64,684.27 0.14200% 0.10000% 0.1400% Fee Simple No
10 10/01/08 1st 78,657.26 0.14200% 0.10000% 0.1400% Fee Simple No
11 02/01/13 1st 53,741.73 0.14200% 0.10000% 0.1400% Fee Simple No
12 12/01/12 1st 50,961.79 0.14200% 0.10000% 0.1400% Fee Simple No
13 01/01/13 1st 43,200.65 0.09200% 0.05000% 0.0900% Fee Simple No
14 01/01/13 1st 42,632.34 0.12200% 0.08000% 0.1200% Fee Simple No
15 02/01/13 1st 37,061.03 0.14200% 0.10000% 0.1400% Fee Simple No
16 10/01/11 1st 45,722.67 0.14200% 0.10000% 0.1400% Fee Simple No
17 01/01/13 1st 34,534.06 0.12200% 0.08000% 0.1200% Fee Simple No
18 01/01/13 1st 32,096.51 0.14200% 0.10000% 0.1400% Fee Simple No
19 02/01/13 1st 14,723.00 0.09200% 0.05000% 0.0900% Fee Simple Yes(BACM 03-1-Q)
20 02/01/13 1st 13,545.16 0.09200% 0.05000% 0.0900% Fee Simple Yes(BACM 03-1-Q)
21 02/01/08 1st 25,244.34 0.09200% 0.05000% 0.0900% Fee Simple No
22 01/01/13 1st 25,081.04 0.14200% 0.10000% 0.1400% Fee Simple No
23 06/01/07 1st 31,147.96 0.14200% 0.10000% 0.1400% Fee Simple No
24 01/01/13 1st 24,984.47 0.10200% 0.06000% 0.1000% Fee Simple No
25 10/01/10 1st 23,982.02 0.09200% 0.05000% 0.0900% Fee Simple No
26 12/01/12 1st 23,260.10 0.13200% 0.09000% 0.1300% Fee Simple No
27 03/01/13 1st 20,460.74 0.09200% 0.05000% 0.0900% Fee Simple No
28 03/01/13 1st 19,327.13 0.14200% 0.10000% 0.1400% Fee Simple No
29 08/01/12 1st 21,490.31 0.14200% 0.10000% 0.1400% Fee Simple No
30 10/01/12 1st 20,503.38 0.14200% 0.10000% 0.1400% Fee Simple No
31 12/01/12 1st 20,731.83 0.13200% 0.09000% 0.1300% Fee Simple No
32 02/01/08 1st 15,359.73 0.09200% 0.05000% 0.0900% Fee Simple No
33 02/01/08 1st 15,155.12 0.09200% 0.05000% 0.0900% Fee Simple No
34 12/01/12 1st 13,422.18 0.11200% 0.07000% 0.1100% Fee Simple No
35 12/01/12 1st 13,334.64 0.11200% 0.07000% 0.1100% Fee Simple No
36 02/01/08 1st 11,245.95 0.09200% 0.05000% 0.0900% Fee Simple No
37 11/01/12 1st 11,621.64 0.14200% 0.10000% 0.1400% Fee Simple No
38 02/01/08 1st 9,584.56 0.09200% 0.05000% 0.0900% Fee Simple No
39 02/01/08 1st 7,485.02 0.09200% 0.05000% 0.0900% Fee Simple No
40 11/01/12 1st 8,698.07 0.14200% 0.10000% 0.1400% Fee Simple No
41 02/01/08 1st 7,424.35 0.09200% 0.05000% 0.0900% Fee Simple No
42 02/01/13 1st 7,236.95 0.09200% 0.05000% 0.0900% Fee Simple No
43 03/01/13 1st 555,329.12 0.06200% 0.02000% 0.0600% Fee Simple No
44 07/01/12 1st 222,772.76 0.14200% 0.10000% 0.1400% Fee Simple No
45 02/01/13 1st 177,215.46 0.14200% 0.10000% 0.1400% Fee Simple No
46 01/01/11 1st 207,958.78 0.14200% 0.10000% 0.1400% Fee Simple No
47 08/01/12 1st 179,631.67 0.14200% 0.10000% 0.1400% Fee Simple / Leasehold No
48 05/01/12 1st 187,433.06 0.14200% 0.10000% 0.1400% Fee Simple / Leasehold No
49 11/01/12 1st 63,582.52 0.14200% 0.10000% 0.1400% Fee Simple No
50 06/01/12 1st 55,223.50 0.14200% 0.10000% 0.1400% Fee Simple No
51 01/01/12 1st 55,531.25 0.14200% 0.10000% 0.1400% Fee Simple No
52 10/01/12 1st 54,266.78 0.09200% 0.05000% 0.0900% Fee Simple No
53 07/01/12 1st 50,655.51 0.10200% 0.06000% 0.1000% Fee Simple No
54 11/01/12 1st 44,014.84 0.14200% 0.10000% 0.1400% Fee Simple No
55 11/01/12 1st 45,176.58 0.14200% 0.10000% 0.1400% Fee Simple No
56 10/01/12 1st 44,199.51 0.14200% 0.10000% 0.1400% Fee Simple No
57 07/01/12 1st 41,980.93 0.14200% 0.10000% 0.1400% Fee Simple No
58 12/01/12 1st 0.14200% 0.10000% 0.1400% Fee Simple No
59 07/01/12 1st 36,937.81 0.14200% 0.10000% 0.1400% Fee Simple No
60 11/01/12 1st 33,325.52 0.14200% 0.10000% 0.1400% Fee Simple No
61 05/01/12 1st 32,851.61 0.14200% 0.10000% 0.1400% Fee Simple No
62 05/01/12 1st 32,394.17 0.14200% 0.10000% 0.1400% Fee Simple No
63 09/01/12 1st 29,149.61 0.14200% 0.10000% 0.1400% Fee Simple No
64 12/01/12 1st 28,035.95 0.14200% 0.10000% 0.1400% Fee Simple No
65 02/01/13 1st 24,872.28 0.14200% 0.10000% 0.1400% Fee Simple No
66 10/01/12 1st 26,592.52 0.14200% 0.10000% 0.1400% Fee Simple No
67 09/01/12 1st 21,664.05 0.14200% 0.10000% 0.1400% Fee Simple No
68 01/01/13 1st 20,503.38 0.14200% 0.10000% 0.1400% Fee Simple No
69 06/01/12 1st 22,616.39 0.14200% 0.10000% 0.1400% Fee Simple No
70 01/01/13 1st 17,717.38 0.14200% 0.10000% 0.1400% Fee Simple No
71 07/01/12 1st 19,445.65 0.14200% 0.10000% 0.1400% Fee Simple No
72 12/01/12 1st 16,604.26 0.11200% 0.07000% 0.1100% Fee Simple No
73 05/01/12 1st 19,512.11 0.14200% 0.10000% 0.1400% Fee Simple No
74 05/01/12 1st 18,228.71 0.14200% 0.10000% 0.1400% Fee Simple No
75 09/01/12 1st 15,550.40 0.11200% 0.07000% 0.1100% Fee Simple No
76 12/01/12 1st 13,457.26 0.14200% 0.10000% 0.1400% Fee Simple No
77 05/01/12 1st 13,961.40 0.07200% 0.03000% 0.0700% Fee Simple No
78 05/01/12 1st 13,221.97 0.14200% 0.10000% 0.1400% Fee Simple No
79 06/01/12 1st 14,020.17 0.14200% 0.10000% 0.1400% Fee Simple No
80 05/01/12 1st 12,460.89 0.14200% 0.10000% 0.1400% Fee Simple No
81 03/01/12 1st 11,451.54 0.14200% 0.10000% 0.1400% Fee Simple No
82 11/01/12 1st 8,234.60 0.14200% 0.10000% 0.1400% Fee Simple No
83 08/01/12 1st 7,983.63 0.14200% 0.10000% 0.1400% Fee Simple No
84 03/01/13 1st 597,603.44 0.14200% 0.10000% 0.1400% Fee Simple No
85 11/01/12 1st 206,265.26 0.14200% 0.10000% 0.1400% Fee Simple No
86 05/01/11 1st 183,638.51 0.09200% 0.05000% 0.0900% Fee Simple No
87 12/01/12 1st 124,891.77 0.14200% 0.10000% 0.1400% Fee Simple / Leasehold No
88 10/01/12 1st 78,665.36 0.14200% 0.10000% 0.1400% Fee Simple No
89 08/01/12 1st 58,380.29 0.09200% 0.05000% 0.0900% Fee Simple No
90 10/01/11 1st 46,452.07 0.14200% 0.10000% 0.1400% Fee Simple No
91 11/01/09 1st 35,091.54 0.14200% 0.10000% 0.1400% Fee Simple No
92 12/01/12 1st 0.14200% 0.10000% 0.1400% Fee Simple / Leasehold No
93 09/01/12 1st 27,444.00 0.14200% 0.10000% 0.1400% Fee Simple No
94 09/01/12 1st 21,980.83 0.12200% 0.08000% 0.1200% Fee Simple No
95 01/01/13 1st 15,512.55 0.14200% 0.10000% 0.1400% Fee Simple No
96 02/01/10 1st 84,510.74 0.14200% 0.10000% 0.1400% Fee Simple No
97 12/01/12 1st 85,961.25 0.14200% 0.10000% 0.1400% Fee Simple / Leasehold No
98 09/01/12 1st 77,960.47 0.14200% 0.10000% 0.1400% Fee Simple No
99 01/01/13 1st 27,580.85 0.10200% 0.06000% 0.1000% Fee Simple No
100 12/01/12 1st 18,620.99 0.09200% 0.05000% 0.0900% Fee Simple / Leasehold No
101.1
101.2
101.3
101.4
101.5
101.6
101.7
101.8
101.9
101.1
101.11
101.12
101.13
101.14
101.15
101 03/01/13 1st 177,881.38 0.14200% 0.10000% 0.1400% Fee Simple / Leasehold No
102 02/01/13 1st 19,746.54 0.13200% 0.09000% 0.1300% Fee Simple No
103 12/01/12 1st 16,785.76 0.14200% 0.10000% 0.1400% Fee Simple No
104 02/01/13 1st 14,120.89 0.14200% 0.10000% 0.1400% Fee Simple No
105 02/01/13 1st 10,651.15 0.14200% 0.10000% 0.1400% Fee Simple No
106 12/01/12 1st 9,883.27 0.14200% 0.10000% 0.1400% Fee Simple No
107 12/01/07 1st 9,452.34 0.14200% 0.10000% 0.1400% Fee Simple No
108.1
108.2
108 01/01/13 1st 60,789.07 0.14200% 0.10000% 0.1400% Fee Simple No
109 08/01/07 1st 30,063.13 0.14200% 0.10000% 0.1400% Fee Simple / Leasehold No
110 01/01/13 1st 21,955.32 0.14200% 0.10000% 0.1400% Fee Simple No
111 11/01/12 1st 11,566.98 0.14200% 0.10000% 0.1400% Fee Simple No
112 02/01/13 1st 10,854.29 0.09200% 0.05000% 0.0900% Fee Simple No
Original
Sequence Amortization Grace
Number (months) Period
-------- ------------ ------
1 360 10
2 360 10
3 321 10
4 10
5 321 10
6 360 10
7 360 10
8 321 10
9 360 10
10 306 10
11 360 10
12 360 10
13 360 5
14 348 10
15 360 10
16 309 10
17 348 10
18 360 10
19 360 5
20 360 5
21 360 10
22 360 10
23 336 10
24 360 10
25 360 5
26 360 5
27 360 5
28 360 10
29 360 10
30 360 15
31 360 5
32 360 10
33 360 10
34 360 10
35 360 10
36 360 10
37 300 5
38 360 10
39 360 10
40 300 5
41 360 10
42 360 5
43 360 5
44 360 10
45 360 10
46 360 10
47 360 10
48 360 10
49 360 10
50 360 10
51 360 10
52 300 10
53 360 10
54 360 10
55 300 10
56 360 10
57 360 10
58 10
59 360 10
60 360 10
61 360 10
62 360 10
63 360 10
64 300 10
65 360 10
66 360 10
67 360 10
68 360 10
69 360 10
70 360 10
71 360 10
72 360 10
73 300 10
74 300 10
75 360 10
76 300 10
77 360 5
78 300 10
79 240 5
80 300 10
81 360 10
82 360 10
83 360 10
84 300 5
85 360 10
86 360 10
87 360 10
88 258 10
89 360 10
90 240 10
91 360 10
92 10
93 360 10
94 300 5
95 360 10
96 360 10
97 360 10
98 300 10
99 360 10
100 300 5
101.1
101.2
101.3
101.4
101.5
101.6
101.7
101.8
101.9
101.1
101.11
101.12
101.13
101.14
101.15
101 360 0
102 360 5
103 360 5
104 300 5
105 360 5
106 360 5
107 360 5
108.1
108.2
108 300 10
109 300 10
110 300 10
111 300 5
112 300 5
SCHEDULE II
SUB-SERVICING AGREEMENTS
1. Sub-Servicing Agreement, dated as of April 1, 2003, by and
between BANK OF AMERICA, N.A., as Master Servicer, LAUREATE CAPITAL LLC, X.X.
XXXXXX & COMPANY OF TEXAS, LP, CAPSTONE REALTY ADVISORS, LLC, COLLATERAL
MORTGAGE CAPITAL, LLC, and NORTHMARQ CAPITAL, INC., each as Sub-Servicers.
2. Sub-Servicing Agreement, dated as of April 1, 2003, by and
between BANK OF AMERICA, N.A., as Master Servicer, and MIDLAND LOAN SERVICES,
INC., as Sub-Servicer.
SCHEDULE III
SCHEDULE OF EXCEPTIONS UNDER SECTION 2.02(a)
None.
SCHEDULE IV
CLASS XP-1 AND CLASS XP-2 REFERENCE RATE SCHEDULE
INTEREST CLASS XP-1 AND INTEREST CLASS XP-1 AND
ACCRUAL DISTRIBUTION CLASS XP-2 ACCRUAL DISTRIBUTION CLASS XP-2
PERIOD DATE REFERENCE RATE PERIOD DATE REFERENCE RATE
-------- ------------ -------------- -------- ------------ --------------
1 5/11/03 5.96160% 43 11/11/06 6.16020%
2 6/11/03 6.16200% 44 12/11/06 5.96000%
3 7/11/03 5.96160% 45 1/11/07 5.96010%
4 8/11/03 6.16190% 46 2/11/07 5.96020%
5 9/11/03 6.16190% 47 3/11/07 5.96110%
6 10/11/03 5.96160% 48 4/11/07 6.16080%
7 11/11/03 6.16190% 49 5/11/07 5.95570%
8 12/11/03 5.96150% 50 6/11/07 6.15220%
9 1/11/04 6.16180% 51 7/11/07 5.95230%
10 2/11/04 5.96140% 52 8/11/07 6.15250%
11 3/11/04 5.96160% 53 9/11/07 6.15260%
12 4/11/04 6.16170% 54 10/11/07 5.95310%
13 5/11/04 5.96150% 55 11/11/07 6.15330%
14 6/11/04 6.16200% 56 12/11/07 5.95340%
15 7/11/04 5.96170% 57 1/11/08 6.15360%
16 8/11/04 6.16220% 58 2/11/08 5.95930%
17 9/11/04 6.16230% 59 3/11/08 5.97540%
18 10/11/04 5.96200% 60 4/11/08 6.18540%
19 11/11/04 6.16250% 61 5/11/08 5.98440%
20 12/11/04 5.96220% 62 6/11/08 6.18570%
21 1/11/05 5.96230% 63 7/11/08 5.98460%
22 2/11/05 5.96240% 64 8/11/08 6.18590%
23 3/11/05 5.96320% 65 9/11/08 6.17640%
24 4/11/05 6.16300% 66 10/11/08 5.97570%
25 5/11/05 5.96260% 67 11/11/08 6.17670%
26 6/11/05 6.16310% 68 12/11/08 5.97600%
27 7/11/05 5.96270% 69 1/11/09 5.97610%
28 8/11/05 6.16320% 70 2/11/09 5.97620%
29 9/11/05 6.16040% 71 3/11/09 5.97720%
30 10/11/05 5.96010% 72 4/11/09 6.17730%
31 11/11/05 6.16050% 73 5/11/09 5.96220%
32 12/11/05 5.96020% 74 6/11/09 6.16280%
33 1/11/06 5.96020% 75 7/11/09 5.96000%
34 2/11/06 5.96030% 76 8/11/09 6.16050%
35 3/11/06 5.96160% 77 9/11/09 6.16060%
36 4/11/06 6.16070% 78 10/11/09 5.96040%
37 5/11/06 5.96040% 79 11/11/09 6.16090%
38 6/11/06 6.16080% 80 12/11/09 5.96070%
39 7/11/06 5.95930% 81 1/11/10 5.96090%
40 8/11/06 6.15980% 82 2/11/10 5.96720%
41 9/11/06 6.15990% 83 3/11/10 5.98620%
42 10/11/06 5.95970% 84 4/11/10 6.20810%
SCHEDULE V
SCHEDULE OF CONTROLLING HOLDERS AND OPERATING ADVISORS
ES CONTROLLING HOLDER
Connecticut General Life Insurance Company, 000 Xxxxxxxx Xxxxxx, Routing Code
#H11D, Xxxxxxxx, XX 00000, Attention: Xxxxxx Xxxxxxxxx, telecopy number: (860)
534-5328, with a copy to Xxxxx X. Xxxxxxxxx, Assistant General Counsel, CIGNA
Retirement and Investment Services, Investment Law Department, H-16C, 000
Xxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000, telephone number: (000) 000-0000, telecopy
number: (000) 000-0000
SB CONTROLLING HOLDER
Newcastle Investment Corp., 0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx,
XX 00000, Attention: Xxxxxxxx Xxxxx, telephone number: (000) 000-0000, telecopy
number: (000) 000-0000
WELLBRIDGE CONTROLLING HOLDER
Commercial Mortgage and Real Estate Securities, TIAA 000 Xxxxx Xxxxxx, 0xx
xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxx Xxxxxxx, telephone number: (212)
000-0000
DIRECTING CERTIFICATEHOLDER
First Chicago Capital Corporation, 00 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx,
XX 00000-0000, Attention: Xxxxxxxx X. Xxxxx
