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BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.,
as Depositor,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer,
GMAC COMMERCIAL MORTGAGE CORPORATION,
as Special Servicer,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Paying Agent and Certificate Registrar,
and
ABN AMRO BANK N.V.,
as Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2002
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-TOP6
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Definitions....................................................5
Section 1.2 Calculations Respecting Mortgage Loans........................57
Section 1.3 Calculations Respecting Accrued Interest......................58
Section 1.4 Interpretation................................................58
Section 1.5 ARD Loans.....................................................59
Section 1.6 Certain Matters with respect to A/B Mortgage Loans............59
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans..................................60
Section 2.2 Acceptance by Trustee.........................................63
Section 2.3 Sellers' Repurchase of Mortgage Loans for Material
Document Defects and Material Breaches of Representations
and Warranties................................................65
Section 2.4 Representations and Warranties................................71
Section 2.5 Conveyance of Interests.......................................72
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates..............................................73
Section 3.2 Registration..................................................74
Section 3.3 Transfer and Exchange of Certificates.........................74
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates.............80
Section 3.5 Persons Deemed Owners.........................................80
Section 3.6 Access to List of Certificateholders' Names and Addresses.....80
Section 3.7 Book-Entry Certificates.......................................81
Section 3.8 Notices to Clearing Agency....................................84
Section 3.9 Definitive Certificates.......................................84
ARTICLE IV
ADVANCES
Section 4.1 P&I Advances by Master Servicer...............................85
Section 4.2 Servicing Advances............................................86
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Section 4.3 Advances by the Trustee and the Fiscal Agent..................86
Section 4.4 Evidence of Nonrecoverability.................................87
Section 4.5 Interest on Advances; Calculation of Outstanding Advances
with Respect to a Mortgage Loan...............................88
Section 4.6 Reimbursement of Advances and Advance Interest................88
Section 4.7 Fiscal Agent Termination Event................................90
Section 4.8 Procedure Upon Termination Event..............................90
Section 4.9 Merger or Consolidation of Fiscal Agent.......................91
Section 4.10 Limitation on Liability of the Fiscal Agent and Others........91
Section 4.11 Indemnification of Fiscal Agent...............................91
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections...................................................92
Section 5.2 Application of Funds in the Certificate Account and
Interest Reserve Account......................................96
Section 5.3 Distribution Account and Reserve Account.....................100
Section 5.4 Paying Agent Reports.........................................102
Section 5.5 Paying Agent Tax Reports.....................................104
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally......................................104
Section 6.2 REMIC I......................................................105
Section 6.3 REMIC II.....................................................106
Section 6.4 Reserved.....................................................111
Section 6.5 REMIC III....................................................111
Section 6.6 Allocation of Realized Losses, Expense Losses and
Shortfalls Due to Nonrecoverability..........................115
Section 6.7 Net Aggregate Prepayment Interest Shortfalls.................118
Section 6.8 Adjustment of Servicing Fees.................................118
Section 6.9 Appraisal Reductions.........................................118
Section 6.10 Compliance with Withholding Requirements.....................119
Section 6.11 Prepayment Premiums..........................................119
ARTICLE VII
CONCERNING THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT
Section 7.1 Duties of the Trustee, the Fiscal Agent, the Paying Agent
and the Luxembourg Paying Agent..............................120
Section 7.2 Certain Matters Affecting the Trustee, the Fiscal Agent
and the Paying Agent.........................................122
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Section 7.3 The Trustee, the Fiscal Agent and the Paying Agent Not
Liable for Certificates or Interests or Mortgage Loans.......124
Section 7.4 The Trustee, the Fiscal Agent and the Paying Agent May
Own Certificates.............................................125
Section 7.5 Eligibility Requirements for the Trustee, the Fiscal
Agent and the Paying Agent...................................125
Section 7.6 Resignation and Removal of the Trustee, the Fiscal Agent
or the Paying Agent..........................................126
Section 7.7 Successor Trustee, Fiscal Agent or Paying Agent..............128
Section 7.8 Merger or Consolidation of Trustee, Fiscal Agent
or Paying Agent..............................................129
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or
Custodian....................................................129
Section 7.10 Authenticating Agents........................................131
Section 7.11 Indemnification of Trustee, the Fiscal Agent and the
Paying Agent.................................................132
Section 7.12 Fees and Expenses of Trustee, the Fiscal Agent and the
Paying Agent.................................................134
Section 7.13 Collection of Moneys.........................................134
Section 7.14 Trustee To Act; Appointment of Successor.....................134
Section 7.15 Notification to Holders......................................137
Section 7.16 Representations and Warranties of the Trustee, the Fiscal
Agent and the Paying Agent...................................137
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Trustee, the Fiscal Agent and the
Paying Agent.................................................139
Section 7.18 Appointment of Luxembourg Paying Agent; Notification to
Certificateholders...........................................140
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties.........................141
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Master Servicer............................142
Section 8.3 Master Servicer's General Power and Duties...................142
Section 8.4 Primary Servicing and Sub-Servicing..........................148
Section 8.5 Servicers May Own Certificates...............................150
Section 8.6 Maintenance of Hazard Insurance, Other Insurance, Taxes
and Other....................................................150
Section 8.7 Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Due-On-Encumbrance Clause....................................152
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files......156
Section 8.9 Documents, Records and Funds in Possession of Master
Servicer to be Held for the Trustee for the Benefit of
the Certificateholders.......................................157
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Section 8.10 Servicing Compensation.......................................157
Section 8.11 Master Servicer Reports; Account Statements..................159
Section 8.12 Annual Statement as to Compliance............................161
Section 8.13 Annual Independent Public Accountants' Servicing Report......161
Section 8.14 Operating Statement Analysis Reports Regarding the
Mortgaged Properties.........................................162
Section 8.15 Other Available Information and Certain Rights of the
Master Servicer..............................................163
Section 8.16 Rule 144A Information........................................165
Section 8.17 Inspections..................................................165
Section 8.18 Modifications, Waivers, Amendments, Extensions
and Consents.................................................166
Section 8.19 Specially Serviced Mortgage Loans............................169
Section 8.20 Representations, Warranties and Covenants of the Master
Servicer.....................................................170
Section 8.21 Merger or Consolidation......................................171
Section 8.22 Resignation of Master Servicer...............................171
Section 8.23 Assignment or Delegation of Duties by Master Servicer........172
Section 8.24 Limitation on Liability of the Master Servicer and Others....172
Section 8.25 Indemnification; Third-Party Claims..........................174
Section 8.26 Exchange Act Reporting.......................................177
Section 8.27 Compliance with REMIC Provisions.............................177
Section 8.28 Termination..................................................188
Section 8.29 Procedure Upon Termination...................................180
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED
MORTGAGE LOANS BY SPECIAL SERVICER
Section 9.1 Duties of Special Servicer...................................182
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy of
Special Servicer.............................................184
Section 9.3 Sub-Servicers................................................184
Section 9.4 Special Servicer General Powers and Duties...................184
Section 9.5 "Due-on-Sale" Clauses; Assignment and Assumption
Agreements; Modifications of Specially Serviced Mortgage
Loans; Due-On-Encumbrance Clauses............................186
Section 9.6 Release of Mortgage Files....................................190
Section 9.7 Documents, Records and Funds in Possession of Special
Servicer To Be Held for the Trustee..........................191
Section 9.8 Representations, Warranties and Covenants of the Special
Servicer.....................................................192
Section 9.9 Standard Hazard, Flood and Comprehensive General
Liability Insurance Policies.................................193
Section 9.10 Presentment of Claims and Collection of Proceeds.............194
Section 9.11 Compensation to the Special Servicer.........................195
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Section 9.12 Realization Upon Defaulted Mortgage Loans....................196
Section 9.13 Foreclosure..................................................198
Section 9.14 Operation of REO Property....................................198
Section 9.15 Sale of REO Property.........................................202
Section 9.16 Realization on Collateral Security...........................203
Section 9.17 Reserved.....................................................203
Section 9.18 Annual Officer's Certificate as to Compliance................203
Section 9.19 Annual Independent Accountants' Servicing Report.............203
Section 9.20 Merger or Consolidation......................................204
Section 9.21 Resignation of Special Servicer..............................204
Section 9.22 Assignment or Delegation of Duties by Special Servicer.......205
Section 9.23 Limitation on Liability of the Special Servicer and Others...205
Section 9.24 Indemnification; Third-Party Claims..........................208
Section 9.25 Reserved.....................................................209
Section 9.26 Special Servicer May Own Certificates........................209
Section 9.27 Tax Reporting................................................209
Section 9.28 Application of Funds Received................................209
Section 9.29 Compliance with REMIC Provisions.............................210
Section 9.30 Termination..................................................210
Section 9.31 Procedure Upon Termination...................................212
Section 9.32 Certain Special Servicer Reports.............................213
Section 9.33 Special Servicer to Cooperate with the Master Servicer
and Paying Agent.............................................215
Section 9.34 Reserved.....................................................216
Section 9.35 Reserved.....................................................216
Section 9.36 Sale of Defaulted Mortgage Loans.............................216
Section 9.37 Operating Adviser; Elections.................................219
Section 9.38 Limitation on Liability of Operating Adviser.................220
Section 9.39 Duties of Operating Adviser..................................220
Section 9.40 Rights of the Holder of a B Note.............................221
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of Trust Upon Repurchase or Liquidation of
All Mortgage Loans...........................................222
Section 10.2 Procedure Upon Termination of Trust..........................224
Section 10.3 Additional Trust Termination Requirements....................225
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
Section 11.1 Limitation on Rights of Holders..............................226
Section 11.2 Access to List of Holders....................................227
Section 11.3 Acts of Holders of Certificates..............................227
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ARTICLE XII
REMIC ADMINISTRATION
Section 12.1 REMIC Administration.........................................228
Section 12.2 Prohibited Transactions and Activities.......................233
Section 12.3 Modifications of Mortgage Loans..............................234
Section 12.4 Liability with Respect to Certain Taxes and Loss of
REMIC Status.................................................234
Section 12.5 Grantor Trust Reporting......................................234
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Binding Nature of Agreement..................................235
Section 13.2 Entire Agreement.............................................235
Section 13.3 Amendment....................................................235
Section 13.4 GOVERNING LAW................................................237
Section 13.5 Notices......................................................237
Section 13.6 Severability of Provisions...................................238
Section 13.7 Indulgences; No Waivers......................................238
Section 13.8 Headings Not to Affect Interpretation........................238
Section 13.9 Benefits of Agreement........................................238
Section 13.10 Special Notices to the Rating Agencies.......................239
Section 13.11 Counterparts.................................................240
Section 13.12 Intention of Parties.........................................240
Section 13.13 Recordation of Agreement.....................................242
Section 13.14 Rating Agency Monitoring Fees................................242
Section 13.15 Acknowledgement by Primary Servicers.........................242
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EXHIBITS AND SCHEDULES
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-2 Certificate
EXHIBIT A-3 Reserved
EXHIBIT A-4 Reserved
EXHIBIT A-5 Form of Class B Certificate
EXHIBIT A-6 Form of Class C Certificate
EXHIBIT A-7 Form of Class D Certificate
EXHIBIT A-8 Form of Class E Certificate
EXHIBIT A-9 Form of Class F Certificate
EXHIBIT A-10 Form of Class G Certificate
EXHIBIT A-11 Form of Class H Certificate
EXHIBIT A-12 Form of Class J Certificate
EXHIBIT A-13 Form of Class K Certificate
EXHIBIT A-14 Form of Class L Certificate
EXHIBIT A-15 Form of Class M Certificate
EXHIBIT A-16 Form of Class N Certificate
EXHIBIT A-17 Form of Class R-I Certificate
EXHIBIT A-18 Form of Class R-II Certificate
EXHIBIT A-19 Form of Class R-III Certificate
EXHIBIT A-20 Form of Class X-1 Certificate
EXHIBIT A-21 Form of Class X-2 Certificate
EXHIBIT B-1 Form of Initial Certification of Trustee (Section 2.2)
EXHIBIT B-2 Form of Final Certification of Trustee (Section 2.2)
EXHIBIT C Form of Request for Release
EXHIBIT D-1 Form of Transferor Certificate for Transfers to Definitive
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-2A Form I of Transferee Certificate for Transfers of Definitive
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-2B Form II of Transferee Certificate for Transfers of Definitive
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-3A Form I of Transferee Certificate for Transfers of Interests in
Book-Entry Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-3B Form II of Transferee Certificate for Transfers of Interests in
Book-Entry Privately Offered Certificates (Section 3.3(c))
EXHIBIT E-1 Form of Transfer Affidavit and Agreement (Section 3.3(e))
EXHIBIT E-2 Form of Transfer Affidavit and Agreement (Section 3.3(e))
EXHIBIT F Form of Regulation S Certificate
EXHIBIT G-1 Form of Primary Servicing Agreement
EXHIBIT G-2 Reserved
EXHIBIT H Form of Exchange Certification
EXHIBIT I Form of EUROCLEAR or Clearstream Certificate (Section 3.7(d)
EXHIBIT J List of Loans as to Which Excess Servicing Fees Are Paid
("Excess Servicing Fee")
EXHIBIT K-1 Reserved
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EXHIBIT K-2 Form of Mortgage Loan Purchase Agreement II (Xxxxx Fargo)
EXHIBIT K-3 Form of Mortgage Loan Purchase Agreement III (Principal)
EXHIBIT K-4 Form of Mortgage Loan Purchase Agreement IV (BSF)
EXHIBIT K-5 Form of Mortgage Loan Purchase Agreement V (MSDWMC)
EXHIBIT L Form of Inspection Report
EXHIBIT M Form of Monthly Certificateholders Reports (Section 5.4(a))
EXHIBIT N Form of Operating Statement Analysis Report
EXHIBIT O Reserved
EXHIBIT P Reserved
EXHIBIT Q Reserved
EXHIBIT R Reserved
EXHIBIT S-1 Form of Power of Attorney to Master Servicer (Section 8.3(c))
EXHIBIT S-2 Form of Power of Attorney to Special Servicer (Section 9.4(a)
EXHIBIT T Form of Debt Service Coverage Ratio Procedures
EXHIBIT U Form of Assignment and Assumption Submission to Special Servicer
(Section 8.7(a))
EXHIBIT V Form of Additional Lien, Monetary Encumbrance and Mezzanine
Financing Submission Package to the Special Servicer
(Section 8.7(e))
EXHIBIT W Restricted Servicer Reports
EXHIBIT X Unrestricted Servicer Reports
EXHIBIT Y Investor Certificate (Section 5.4(a))
EXHIBIT Z Form of Notice and Certification (Section 8.3(h))
EXHIBIT AA Form of Xxxxx Fargo primary servicing agreement
(Section 8.29(b))
SCHEDULE I Reserved
SCHEDULE II Xxxxx Fargo Loan Schedule
SCHEDULE III Principal Loan Schedule
SCHEDULE IV BSF Loan Schedule
SCHEDULE V MSDWMC Loan Schedule
SCHEDULE VI List of Escrow Accounts Not Currently Eligible Accounts
(Section 8.3(e))
SCHEDULE VII Certain Escrow Accounts for Which a Report Under Section 5.1(g)
is Required
SCHEDULE VIII List of Mortgagors that are Third-Party Beneficiaries Under
Section 2.3(a)
SCHEDULE IX Rates Used in Determination of Class X Pass-Through Rates
("Class X-1 Strip Rate" and "Class X-2 Strip Rate")
SCHEDULE X Rates Used in Determination of Class X Pass-Through Rates
("Class X-1 Strip Rate" and "Class X-2 Strip Rate")
SCHEDULE XI Mortgage Loans Secured by Mortgaged Properties Covered by an
Environmental Insurance Policy
SCHEDULE XII Mortgage Loans that are Earnout Loans
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THIS POOLING AND SERVICING AGREEMENT is dated as of March 1, 2002 (this
"Agreement") between BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC., a
Delaware corporation, as depositor (the "Depositor"), XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as master servicer (the "Master Servicer"), GMAC COMMERCIAL
MORTGAGE CORPORATION, as special servicer (the "Special Servicer"), LASALLE BANK
NATIONAL ASSOCIATION, as trustee of the Trust (the "Trustee"), ABN AMRO BANK
N.V., only in its capacity as a fiscal agent pursuant to Article IV hereof (the
"Fiscal Agent") and XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, only in
its capacity as paying agent (the "Paying Agent") and certificate registrar.
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage Loans from
Principal Commercial Funding, LLC, as seller ("Principal"), Xxxxx Fargo Bank,
National Association, as seller ("Xxxxx Fargo"), Bear, Xxxxxxx Funding, Inc., as
seller ("BSF") and Xxxxxx Xxxxxxx Xxxx Xxxxxx Mortgage Capital Inc., as seller
("MSDWMC"), and will be the owner of the Mortgage Loans and the other property
being conveyed by it to the Trustee for inclusion in the Trust which is hereby
created. On the Closing Date, the Depositor will acquire (i) the REMIC I Regular
Interests and the Class R-I Certificate as consideration for its transfer to the
Trust of the Mortgage Loans; (ii) the REMIC II Regular Interests and the Class
R-II Certificates as consideration for its transfer of the REMIC I Regular
Interests to the Trust; and (iii) the REMIC III Certificates as consideration
for its transfer of the REMIC II Regular Interests to the Trust. The Depositor
has duly authorized the execution and delivery of this Agreement to provide for
the foregoing and the issuance of (A) the REMIC I Regular Interests and the
Class R-I Certificates representing in the aggregate the entire beneficial
ownership of REMIC I, (B) the REMIC II Regular Interests and the Class R-II
Certificates representing in the aggregate the entire beneficial ownership of
REMIC II and (C) the REMIC III Certificates representing in the aggregate the
entire beneficial ownership of REMIC III and, in the case of the Class N
Certificates, the Class N Grantor Trust. All covenants and agreements made by
the Depositor and the Trustee herein with respect to the Mortgage Loans and the
other property constituting the Trust are for the benefit of the Holders of the
REMIC I Regular Interests, the REMIC II Regular Interests, the Residual
Certificates and the REMIC Regular Certificates. The parties hereto are entering
into this Agreement, and the Trustee is accepting the trusts created hereby, for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
The Class A, Class B and Class C Certificates will be offered for sale
pursuant to the prospectus (the "Prospectus") dated March 1, 2002, as
supplemented by the preliminary prospectus supplement dated March 1, 2002
(together with the Prospectus, the "Preliminary Prospectus Supplement"), and as
further supplemented by the final prospectus supplement dated March 8, 2002
(together with the Prospectus, the "Final Prospectus Supplement"), and the Class
X-1, Class X-2, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class R-I, Class R-II and Class R-III Certificates
will be offered for sale pursuant to a Private Placement Memorandum dated March
8, 2002.
The following sets forth the Class designation, Pass-Through Rate,
initial Aggregate Certificate Balance (or initial Notional Amount) and Final
Scheduled Distribution Date for each Class of REMIC I Regular Interests and the
Class R-I Certificates comprising the interests in REMIC I, each Class of REMIC
II Regular Interests and the Class R-II Certificates comprising the interests in
REMIC II and each Class of REMIC III Certificates comprising the interests in
REMIC III created hereunder:
REMIC I
Each REMIC I Regular Interest (a "Corresponding REMIC I Regular
Interest") will relate to a specific Mortgage Loan. Each Corresponding REMIC I
Regular Interest will have a pass-through rate equal to the REMIC I Net Mortgage
Rate of the related Mortgage Loan, an initial principal amount (the initial
"Certificate Balance") equal to the Scheduled Principal Balance as of the
Cut-Off Date (as herein defined) of the Mortgage Loan to which the Corresponding
REMIC I Regular Interest relates, and a latest possible maturity date set to the
Maturity Date (as defined herein) of the Mortgage Loan to which the
Corresponding REMIC I Regular Interest relates. The Class R-I Certificate will
be designated as the sole Class of residual interests in REMIC I and will have
no Certificate Balance and no Pass-Through Rate, but will be entitled to receive
the proceeds of any assets remaining in REMIC I after all Classes of REMIC I
Regular Interests have been paid in full.
REMIC II
The REMIC II Regular Interests have the pass-through rates and
Certificate Balances set forth in the definition thereof. The Class R-II
Certificates will be designated as the sole Class of residual interests in REMIC
II and will have no Certificate Balance and no Pass-Through Rate, but will be
entitled to receive the proceeds of any assets remaining in REMIC II after all
Classes of REMIC II Regular Interests have been paid in full.
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REMIC III
Initial Aggregate
Certificate
REMIC III Principal
Regular Initial Pass- Balance or
Interest Through Notional Final Scheduled
Designation Rate(a) Amount Distribution Date(b)
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Class A-1 5.92% $304,970,000 January 15, 2011
Class A-2 6.46% $647,947,000 March 15, 2012
Class X-1(c) 0.26% $1,117,792,180 January 15, 2022
Class X-2(d) 0.88% $886,907,000 March 15, 2009
Class B 6.62% $30,739,000 March 15, 2012
Class C 6.75% $30,739,000 March 15, 2012
Class D 6.88% $12,575,000 October 15, 2012
Class E 7.29% $25,150,000 July 15, 2013
Class F 7.29% $9,780,000 February 15, 2014
Class G 6.00% $12,575,000 December 15, 2014
Class H 6.00% $9,780,000 August 15, 2015
Class J 6.00% $8,383,000 March 15, 2016
Class K 6.00% $5,588,000 July 15, 2016
Class L 6.00% $5,588,000 November 15, 2016
Class M 6.00% $2,794,000 November 15, 2016
Class N(e) 6.00% $11,184,180 January 15, 2022
Class R-III(f) N/A N/A N/A
(a) On each Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of Certificates will be determined as
described herein under the definition of "Pass-Through Rate." The initial
Pass-Through Rates shown above for Class E, Class F, Class X-1 and Class X-2
are approximate.
(b) The Final Scheduled Distribution Date for each Class of Certificates
assigned a rating is the Distribution Date on which such Class is expected
to be paid in full, assuming that timely payments (and no prepayments) will
be made on the Mortgage Loans in accordance with their terms (except that
each ARD Loan will be prepaid in full on its Anticipated Repayment Date).
(c) Each Class X-1 Certificate represents ownership of multiple "regular
interests" in REMIC III. The Class X-1 Certificates are comprised of the
following regular interests:
(1) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class A-1A Component and (B) one twelfth
of the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage
Rate on such Distribution Date over (y) the Pass-Through Rate of the
Class A-1 Certificates;
(2) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class A-1B Component and (B) one twelfth
of the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage
Rate on such Distribution Date over (y) the rate shown on Schedule IX
for such Distribution Date occurring on or before July 2005, or after
the Distribution Date in July 2005, the Pass-Through Rate of the Class
A-1 Certificates;
(3) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class A-2A Component and (B) one twelfth
of the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage
Rate on such Distribution Date over (y) the rate shown on Schedule IX
for such Distribution Date occurring on or before July 2005, or after
the Distribution Date in July 2005, the Pass-Through Rate of the Class
A-2 Certificates;
(4) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class A-2B Component and (B) one twelfth
of the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage
Rate on such Distribution Date over (y) the rate shown on Schedule X
for such Distribution Date occurring on or before March 2009, or after
the Distribution Date in March 2009, the Pass-Through Rate of the Class
A-2 Certificates;
(5) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class B Certificate and (B) one twelfth
of the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage
Rate on such
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Distribution Date over (y) the rate shown on Schedule X for such
Distribution Date occurring on or before March 2009, or after the
Distribution Date in March 2009, the Pass-Through Rate of the Class B
Certificates;
(6) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class C Certificate and (B) one twelfth
of the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage
Rate on such Distribution Date over (y) the rate shown on Schedule X
for such Distribution Date occurring on or before March 2009, or after
the Distribution Date in March 2009, the Pass-Through Rate of the Class
C Certificates;
(7) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class D Certificate and (B) one twelfth
of the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage
Rate on such Distribution Date over (y) the rate shown on Schedule IX
for such Distribution Date occurring on or before July 2005, or after
the Distribution Date in July 2005, the Pass-Through Rate of the Class
D Certificates;
(8) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class E Certificate and (B) one twelfth
of the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage
Rate on such Distribution Date over (y) the Pass-Through Rate of the
Class E Certificates;
(9) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class F Certificates and (B) one twelfth
of the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage
Rate on such Distribution Date over (y) the Pass-Through Rate of the
Class F Certificates;
(10) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class G Certificates and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the Pass-Through Rate
of the Class G Certificates;
(11) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class H Certificates and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the Pass-Through Rate
of the Class H Certificates;
(12) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class J Certificates and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the Pass-Through Rate
of the Class J Certificates;
(13) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class K Certificates and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the Pass-Through Rate
of the Class K Certificates;
(14) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class L Certificates and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the Pass-Through Rate
of the Class L Certificates;
(15) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class M Certificates and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the Pass-Through Rate
of the Class M Certificates; and
(16) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class N Certificates and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the Pass-Through Rate
of the Class N Certificates.
(d) Each Class X-2 Certificate represents ownership of multiple "regular
interests" in REMIC III. The Class X-2 Certificates are comprised of the
following regular interests:
(1) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class A-1B Component and (B) one twelfth
of the excess (if any) of (i) the lesser of (x) the rate shown on
Schedule IX for such Distribution Date and (y) the Weighted Average
REMIC I Net Mortgage Rate on such Distribution Date, over (ii) the
Pass-Through Rate of the Class A-1 Certificates;
(2) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class A-2A Component and (B) one twelfth
of the excess (if any) of (i) the lesser of (x) the rate shown on
Schedule IX for such Distribution Date and (y) the Weighted Average
REMIC I Net Mortgage Rate on such Distribution Date, over (ii) the
Pass-Through Rate of the Class A-2 Certificates;
(3) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class A-2B Component and (B) one twelfth
of the excess (if any) of (i) the lesser of (x) the rate shown on
Schedule X for such Distribution Date and (y) the Weighted Average
REMIC I Net Mortgage Rate on such Distribution Date, over (ii) the
Pass-Through Rate of the Class A-2 Certificates;
(4) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class B Certificate and (B) one twelfth
of the excess (if any) of (i) the lesser of (x) the rate shown on
Schedule X for such Distribution Date and (y) the Weighted Average
REMIC I Net Mortgage Rate on such Distribution Date, over (ii) the
Pass-Through Rate of the Class B Certificates;
(5) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class C Certificate and (B) one twelfth
of the excess (if any) of (i) the lesser of (x) the rate shown on
Schedule X for such Distribution Date and (y) the Weighted Average
REMIC I Net Mortgage Rate on such Distribution Date, over (ii) the
Pass-Through Rate of the Class C Certificates; and
(6) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class D Certificate and (B) one twelfth
of the excess (if any) of (i) the lesser of (x) the rate shown on
Schedule IX for such
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Distribution Date and (y) the Weighted Average REMIC I Net Mortgage
Rate on such Distribution Date, over (ii) the Pass-Through Rate of the
Class D Certificates.
After the Distribution Date in July 2005, payments made in respect of the
Class A-1B Component, Class A-2A Component and Class D Certificates shall
not be included in the calculation of the amount paid in respect of the
Class X-2 Certificates.
(e) Each Class N Certificate represents ownership of one REMIC III Regular
Interest (entitled to the principal and interest set forth above). In
addition, each Class N Certificate will be entitled to Excess Interest
(which will not be a part of any REMIC Pool). The parties intend that (i)
the portion of the Trust representing the Excess Interest and the Excess
Interest Sub-account shall be treated as a grantor trust under Subpart E of
Part 1 of Subchapter J of Chapter 1 of Subtitle A of the Code and (ii) the
Class N Certificates (other than the portion thereof consisting of REMIC III
Regular Interests) shall represent undivided beneficial interests in the
portion of the Trust consisting of the entitlement to receive Excess
Interest (the "Class N Grantor Trust").
(f) The Class R-III Certificates will be entitled to receive the proceeds of any
remaining assets in REMIC III after the principal amounts of all Classes of
Certificates have been reduced to zero and any Realized Losses previously
allocated thereto (and any interest thereon) have been reimbursed.
As of the Cut-Off Date, the Mortgage Loans had an Aggregate Principal
Balance of $1,117,792,180.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the first paragraph of Section 12.1(a) hereof (including the
Mortgage Loans) to be treated for federal income tax purposes as a real estate
mortgage investment conduit ("REMIC I"). The REMIC I Regular Interests will be
designated as the "regular interests" in REMIC I and the Class R-I Certificates
will be designated as the sole Class of "residual interests" in REMIC I.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the second paragraph of Section 12.1(a) hereof consisting of the
REMIC I Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC II"). The REMIC II Regular
Interests will be designated as the "regular interests" in REMIC II and the
Class R-II Certificates will be designated as the sole Class of "residual
interests" in REMIC II for purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the third paragraph of Section 12.1(a) hereof consisting of the
REMIC II Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC III"). The REMIC III Regular
Interests (and, in the case of the Class N Certificate, the Class N REMIC
Interest represented by the Class N Certificate) will be designated as the
"regular interests" in REMIC III and the Class R-III Certificates (together with
the REMIC Regular Certificates, the "REMIC III Certificates") will be designated
as the sole Class of "residual interests" in REMIC III for purposes of the REMIC
Provisions.
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
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"A NOTE" means, with respect to any A/B Mortgage Loan, the Mortgage
Note included in the Trust, which is senior in right of payment to the related B
Note to the extent set forth in the related Intercreditor Agreement. There are
no A Notes in the Trust.
"A/B LOAN CUSTODIAL ACCOUNT" means each of the custodial sub-account(s)
of the Certificate Account (but which are not included in the Trust) created and
maintained by the Master Servicer pursuant to Section 5.1(c) on behalf of the
holder of the related B Note. Any such sub-account(s) shall be maintained as a
sub-account of an Eligible Account.
"A/B MORTGAGE LOAN" means any mortgage loan designated as an A/B
Mortgage Loan on the Mortgage Loan Schedule. References herein to an A/B
Mortgage Loan shall be construed to refer to the aggregate indebtedness under
the related A Note and the related B Note. There are no A/B Mortgage Loans in
the Trust.
"ACCOUNTANT" means a person engaged in the practice of accounting who
is Independent.
"ACCRUED CERTIFICATE INTEREST" means with respect to each Distribution
Date and any Class of Interests or Principal Balance Certificates, other than
the Class X Certificates, the Class R-I Certificates, the Class R-II
Certificates and the Class R-III Certificates, interest accrued during the
Interest Accrual Period relating to such Distribution Date on the Aggregate
Certificate Balance of such Class or Interest as of the close of business on the
immediately preceding Distribution Date at the respective rates per annum set
forth in the definition of the applicable Pass-Through Rate for each such Class.
Accrued Certificate Interest on the Class X-1 Certificates for each Distribution
Date will equal the Class X-1 Interest Amount. Accrued Certificate Interest on
the Class X-2 Certificates for each Distribution Date will equal the Class X-2
Interest Amount.
"ACQUISITION DATE" means the date upon which, under the Code (and in
particular the REMIC Provisions and Section 856(e) of the Code), the Trust or a
REMIC Pool is deemed to have acquired a Mortgaged Property (or an interest
therein, in the case of the Mortgaged Properties securing any A/B Mortgage
Loan).
"ADDITIONAL TRUST EXPENSE" means any of the following items: (i)
Special Servicing Fees, Work-Out Fees and Liquidation Fees (to the extent not
collected from the related Mortgagor), (ii) Advance Interest that cannot be paid
in accordance with Section 4.6(c); (iii) amounts paid to indemnify the Master
Servicer, the Special Servicer, any Primary Servicer, the Trustee, the Paying
Agent, the Fiscal Agent (or any other Person) pursuant to the terms of this
Agreement; (iv) to the extent not otherwise paid, any federal, state, or local
taxes imposed on the Trust or its assets and paid from amounts on deposit in the
Certificate Account or Distribution Account, (v) the amount of any Advance that
is not recovered from the proceeds of a Mortgage Loan upon a Final Recovery
Determination and (vi) to the extent not included in the calculation of a
Realized Loss and not covered by indemnification by one of the parties hereto or
otherwise, any other unanticipated cost, liability, or expense (or portion
thereof) of the Trust (including costs of collecting such amounts or other
Additional Trust Expenses) which the Trust has not recovered, and in the
judgment of the Master Servicer (or Special Servicer, in the case of a Specially
Serviced Mortgage Loan) will not, recover from the related Mortgagor or
Mortgaged
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Property or otherwise, including a Modification Loss described in clause (ii) of
the definition thereof; provided, however, that, in the case of an A/B Mortgage
Loan, "Additional Trust Expense" shall not include any of the foregoing amounts
that have been recovered from the related Mortgagor or Mortgaged Property as a
result of the subordination of the related B Note. Notwithstanding anything to
the contrary, "Additional Trust Expenses" shall not include allocable overhead
of the Master Servicer, the Special Servicer, the Trustee, the Paying Agent, the
Certificate Registrar or the Fiscal Agent, such as costs for office space,
office equipment, supplies and related expenses, employee salaries and related
expenses, and similar internal costs and expenses. "Additional Trust Expenses"
shall not include expenses incurred in connection with Section 6.12, which are
payable in accordance with the last paragraph thereof.
"ADMINISTRATIVE COST RATE" means the sum of the Master Servicing Fee
Rate, the Primary Servicing Fee Rate, the Excess Servicing Fee Rate and the
Trustee Fee Rate.
"ADVANCE" means either a P&I Advance or a Servicing Advance.
"ADVANCE INTEREST" means interest payable to the Master Servicer, the
Trustee or the Fiscal Agent on outstanding Advances pursuant to Section 4.5 of
this Agreement.
"ADVANCE RATE" means a per annum rate equal to the Prime Rate as
published in the "Money Rates" section of The Wall Street Journal from time to
time or such other publication as determined by the Trustee in its reasonable
discretion.
"ADVANCE REPORT DATE" means the second Business Day prior to each
Distribution Date.
"ADVERSE REMIC EVENT" means any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, would either (i) endanger
the status of any REMIC as a REMIC or (ii) subject to Section 9.14(e), result in
the imposition of a tax upon the income of any REMIC or any of their respective
assets or transactions, including (without limitation) the tax on prohibited
transactions as defined in Code Section 860F(a)(2) and the tax on prohibited
contributions set forth in Section 860G(d) of the Code.
"AFFILIATE" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"AGGREGATE CERTIFICATE BALANCE" means the aggregate of the Certificate
Balances of the Principal Balance Certificates, the REMIC I Regular Interests or
the REMIC II Regular Interests, as the case may be, at any date of
determination. With respect to a Class of Principal Balance Certificates, REMIC
I Regular Interests or REMIC II Regular Interests, Aggregate Certificate Balance
shall mean the aggregate of the Certificate Balances of all Certificates or
Interests, as the case may be, of that Class at any date of determination.
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"AGGREGATE PRINCIPAL BALANCE" means, at the time of any determination
and as the context may require, the aggregate of the Scheduled Principal
Balances for all Mortgage Loans.
"AGREEMENT" means this Pooling and Servicing Agreement and all
amendments and supplements hereto.
"ANTICIPATED REPAYMENT DATE" means, with respect to the ARD Loans, the
anticipated maturity date set forth in the related Mortgage Note.
"APPRAISAL" means an appraisal by an Independent licensed MAI appraiser
having at least five years experience in appraising property of the same type
as, and in the same geographic area as, the Mortgaged Property being appraised,
which appraisal complies with the Uniform Standards of Professional Appraisal
Practices and states the "market value" of the subject property as defined in 12
C.F.R. ss. 225.62.
"APPRAISAL EVENT" means, with respect to any Mortgage Loan, not later
than the earliest of (i) the date 120 days after the occurrence of any
delinquency in payment with respect to such Mortgage Loan if such delinquency
remains uncured, (ii) the date 30 days after receipt of notice that the related
Mortgagor has filed a bankruptcy petition or the related Mortgagor has become
the subject of involuntary bankruptcy proceedings or the related Mortgagor has
consented to the filing of a bankruptcy proceeding against it or a receiver is
appointed in respect of the related Mortgaged Property, provided such petition
or appointment is still in effect, (iii) the date that is 30 days following the
date the related Mortgaged Property becomes an REO Property and (iv) the
effective date of any modification to a Money Term of a Mortgage Loan, other
than an extension of the date that a Balloon Payment is due for a period of less
than six months from the original due date of such Balloon Payment.
"APPRAISAL REDUCTION" means, with respect to any Required Appraisal
Loan with respect to which an Appraisal or internal valuation is performed
pursuant to Section 6.9, an amount equal to the excess of (A) the sum, as of the
first Determination Date that is at least 15 days after the date on which the
Appraisal or internal valuation is obtained or performed, of (i) the Scheduled
Principal Balance of such Mortgage Loan (or, in the case of an REO Property, the
related REO Mortgage Loan) less the undrawn principal amount of any letter of
credit or debt service reserve, if applicable, that is then securing such
Mortgage Loan, (ii) to the extent not previously advanced by the Master
Servicer, the Trustee or the Fiscal Agent, all accrued and unpaid interest on
such Mortgage Loan at a per annum rate equal to the Mortgage Rate, (iii) all
unreimbursed Advances and interest on Advances at the Advance Rate with respect
to such Mortgage Loan, and (iv) to the extent funds on deposit in any applicable
Escrow Accounts are not sufficient therefor, and to the extent not previously
advanced by the Master Servicer, the Trustee or the Fiscal Agent, all currently
due and unpaid real estate taxes and assessments, insurance premiums and, if
applicable, ground rents and other amounts which were required to be deposited
in any Escrow Account (but were not deposited) in respect of such Mortgaged
Property or REO Property, as the case may be, over (B) 90% of the Appraised
Value (net of any prior mortgage liens) of such Mortgaged Property or REO
Property as determined by such Appraisal or internal valuation, as the case may
be, plus the full amount of any escrows held by or on behalf of the Trustee as
security for the Mortgage Loan (less the estimated amount of the
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obligations anticipated to be payable in the next twelve months to which such
escrows relate). Each Appraisal or internal valuation for a Required Appraisal
Loan shall be updated annually. The Appraisal Reduction for each Required
Appraisal Loan will be recalculated based on subsequent Appraisals, internal
valuations or updates. Any Appraisal Reduction for any Mortgage Loan shall be
reduced to reflect any Realized Principal Losses on the Required Appraisal Loan.
Each Appraisal Reduction will be reduced to zero as of the date the related
Mortgage Loan is brought current under the then current terms of the Mortgage
Loan for at least three consecutive months, and no Appraisal Reduction will
exist as to any Mortgage Loan after it has been paid in full, liquidated,
repurchased or otherwise disposed of.
"APPRAISED VALUE" means, with respect to any Mortgaged Property, the
appraised value thereof determined by an Appraisal of the Mortgaged Property
securing such Mortgage Loan made by an Independent appraiser selected by the
Master Servicer or the Special Servicer, as applicable or, in the case of an
internal valuation performed by the Special Servicer pursuant to Section 6.9,
the value of the Mortgaged Property determined by such internal valuation.
"ARD LOAN" means the Mortgage Loan designated on the Mortgage Loan
Schedule as Mortgage Loan Xx. 00 (Xxxxxxxxx Xxxxx).
"ASSIGNMENT OF LEASES" means, with respect to any Mortgage Loan, any
assignment of leases, rents and profits or equivalent instrument, whether
contained in the related Mortgage or executed separately, assigning to the
holder or holders of such Mortgage all of the related Mortgagor's interest in
the leases, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of the related Mortgaged Property as security
for repayment of such Mortgage Loan.
"ASSIGNMENT OF MORTGAGE" means an assignment of the Mortgage, notice of
transfer or equivalent instrument, in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the transfer of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties located
in the same jurisdiction, if permitted by law.
"ASSUMED SCHEDULED PAYMENT" means: (i) with respect to any Balloon
Mortgage Loan for its Maturity Date (provided that such Mortgage Loan has not
been paid in full, and no Final Recovery Determination or other sale or
liquidation has occurred in respect thereof, on or before the end of the
Collection Period in which such Maturity Date occurs) and for any subsequent Due
Date therefor as of which such Mortgage Loan remains outstanding and part of the
Trust, if no Scheduled Payment (other than the related delinquent Balloon
Payment) is due for such Due Date, the scheduled monthly payment of principal
and interest deemed to be due in respect thereof on such Due Date equal to the
Scheduled Payment that would have been due in respect of such Mortgage Loan on
such Due Date, if it had been required to continue to accrue interest in
accordance with its terms, and to pay principal in accordance with the
amortization schedule in effect immediately prior to, and without regard to the
occurrence of, its most recent Maturity Date (as such may have been extended in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of
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such Mortgage Loan granted or agreed to by the Master Servicer or the Special
Servicer pursuant to the terms hereof), and (ii) with respect to any REO
Mortgage Loan for any Due Date therefor as of which the related REO Property
remains part of the Trust, the scheduled monthly payment of principal and
interest deemed to be due in respect thereof on such Due Date equal to the
Scheduled Payment (or, in the case of a Balloon Mortgage Loan described in the
preceding clause of this definition, the Assumed Scheduled Payment) that was due
in respect of the related Mortgage Loan on the last Due Date prior to its
becoming an REO Mortgage Loan. The amount of the Assumed Scheduled Payment for
any A Note shall be calculated solely by reference to the terms of such A Note
(as modified in connection with any bankruptcy or similar proceeding involving
the related Mortgagor or pursuant to a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Master Servicer or the Special
Servicer pursuant to the terms hereof) and without regard to the remittance
provisions of the related Intercreditor Agreement.
"AUTHENTICATING AGENT" means any authenticating agent serving in such
capacity pursuant to Section 7.10.
"AUTHORIZED OFFICER" means any Person that may execute an Officer's
Certificate on behalf of the Depositor.
"AVAILABLE ADVANCE REIMBURSEMENT AMOUNT" has the meaning set forth in
Section 4.6(a) hereof.
"AVAILABLE DISTRIBUTION AMOUNT" means, with respect to any Distribution
Date, an amount equal to the aggregate of (a) all amounts on deposit in the
Distribution Account as of the commencement of business on such Distribution
Date that represent payments and other collections on or in respect of the
Mortgage Loans and any REO Properties that were received by the Master Servicer
or the Special Servicer through the end of the related Collection Period
exclusive of (i) any such amounts that were deposited in the Distribution
Account in error, (ii) amounts that are payable or reimbursable to any Person
other than the Certificateholders (including amounts payable to the Master
Servicer in respect of unpaid Master Servicing Fees, any Primary Servicer in
respect of unpaid Primary Servicing Fees, the Special Servicer in respect of
unpaid Special Servicer Compensation, the Trustee in respect of unpaid Trustee
Fees, the Paying Agent in respect of unpaid Paying Agent Fees or to the parties
entitled thereto in respect of the unpaid Excess Servicing Fees), (iii) amounts
that constitute Prepayment Premiums, (iv) if such Distribution Date occurs
during January, other than in a leap year, or February of any year, the Interest
Reserve Amounts with respect to Interest Reserve Loans deposited in the Interest
Reserve Account, (v) in the case of each REO Property related to an A/B Mortgage
Loan, all amounts received with respect to such A/B Mortgage Loan that are
required to be paid to the holder of the related B Note pursuant to the terms of
the related B Note and the related Intercreditor Agreement (which amounts will
be deposited into the related A/B Loan Custodial Account pursuant to Section
5.1(c) and withdrawn from such account pursuant to Section 5.2(a)) and (vi)
Scheduled Payments collected but due on a Due Date subsequent to the related
Collection Period and (b) if and to the extent not already among the amounts
described in clause (a), (i) the aggregate amount of any P&I Advances made by
the Master Servicer, the Trustee or the Fiscal Agent for such Distribution Date
pursuant to Section 4.1 and/or Section 4.3, (ii) the aggregate amount of any
Compensating Interest payments made by the Master Servicer for such
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Distribution Date pursuant to the terms hereof, and (iii) if such
Distribution Date occurs in March of any year, commencing March 2003, the
aggregate of the Interest Reserve Amounts then held on deposit in the Interest
Reserve Account in respect of each Interest Reserve Loan.
"B NOTE" means, with respect to any A/B Mortgage Loan, the related
Mortgage Note not included in the Trust, which is subordinated in right of
payment to the related A Note to the extent set forth in the related
Intercreditor Agreement. There are no B Notes related to the Trust.
"BALLOON MORTGAGE LOAN" means a Mortgage Loan that provides for
Scheduled Payments based on an amortization schedule that is significantly
longer than its term to maturity and that is expected to have a remaining
principal balance equal to or greater than 5% of its original principal balance
as of its stated maturity date, unless prepaid prior thereto.
"BALLOON PAYMENT" means, with respect to any Balloon Mortgage Loan, the
Scheduled Payment payable on the Maturity Date of such Mortgage Loan.
"BANKRUPTCY LOSS" means a loss arising from a proceeding under the
United States Bankruptcy Code or any other similar state law or other proceeding
with respect to the Mortgagor of, or Mortgaged Property under, a Mortgage Loan,
including, without limitation, any Deficient Valuation Amount or losses, if any,
resulting from any Debt Service Reduction Amount for the month in which the
related Remittance Date occurs.
"BASE INTEREST FRACTION" means, with respect to any Principal
Prepayment of any Mortgage Loan that provides for payment of a Prepayment
Premium, and with respect to any Class of Certificates, a fraction (A) whose
numerator is the greater of (x) zero and (y) the difference between (i) the
Pass-Through Rate on that Class of Certificates and (ii) the Discount Rate used
in calculating the Prepayment Premium with respect to the Principal Prepayment
(or the current Discount Rate if not used in such calculation) and (B) whose
denominator is the difference between (i) the Mortgage Rate on the related
Mortgage Loan and (ii) the Discount Rate used in calculating the Prepayment
Premium with respect to that Principal Prepayment (or the current Discount Rate
if not used in such calculation), provided, however, that under no circumstances
will the Base Interest Fraction be greater than one. If the Discount Rate
referred to above is greater than the Mortgage Rate on the related Mortgage
Loan, then the Base Interest Fraction will equal zero.
"BENEFIT PLAN OPINION" means an Opinion of Counsel satisfactory to the
Paying Agent and the Master Servicer to the effect that any proposed transfer
will not (i) cause the assets of any REMIC to be regarded as plan assets for
purposes of the Plan Asset Regulations or (ii) give rise to any fiduciary duty
on the part of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent, the Certificate Registrar or the Fiscal Agent.
"BOOK-ENTRY CERTIFICATES" means certificates evidencing a beneficial
interest in a Class of Certificates, ownership and transfer of which shall be
made through book entries as described in Section 3.7; provided, that after the
occurrence of a condition whereupon book-entry registration and transfer are no
longer authorized and Definitive Certificates are to be issued to the
Certificate Owners, such certificates shall no longer be "Book-Entry
Certificates."
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"BSF" has the meaning assigned in the Preliminary Statement hereto.
"BSF LOANS" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement IV and shown on
Schedule IV hereto.
"BUSINESS DAY" means any day other than (i) a Saturday or a Sunday,
(ii) a legal holiday in New York, New York, Chicago, Illinois, Des Moines, Iowa
(but only with respect to matters related to the performance of obligations of
Principal Capital Management, LLC as Primary Servicer under the related Primary
Servicing Agreement), San Francisco, California or the principal cities in which
the Special Servicer, the Trustee, the Paying Agent or the Master Servicer
conducts servicing or trust operations, or (iii) a day on which banking
institutions or savings associations in Minneapolis, Minnesota, Columbia,
Maryland, New York, New York, Chicago, Illinois or San Francisco, California are
authorized or obligated by law or executive order to be closed.
"CASH LIQUIDATION" means, as to any Defaulted Mortgage Loan other than
a Mortgage Loan with respect to which the related Mortgaged Property became REO
Property, the sale of such Defaulted Mortgage Loan. The Master Servicer shall
maintain records in accordance with the Servicing Standard (and, in the case of
Specially Serviced Mortgage Loans, based on the written reports with respect to
such Cash Liquidation delivered by the Special Servicer to the Master Servicer),
of each Cash Liquidation.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.).
"CERTIFICATE ACCOUNT" means one or more separate accounts established
and maintained by the Master Servicer (or any Sub-Servicer or Primary Servicer
on behalf of the Master Servicer) pursuant to Section 5.1(a), each of which
shall be an Eligible Account.
"CERTIFICATE BALANCE" means, with respect to any Certificate or
Interest (other than the Class X Certificates and the Residual Certificates) as
of any Distribution Date, the maximum specified dollar amount of principal to
which the Holder thereof is then entitled hereunder, such amount being equal to
the initial principal amount set forth on the face of such Certificate (in the
case of a Certificate), or as ascribed thereto herein (in the case of an
Interest), minus (i) the amount of all principal distributions previously made
with respect to such Certificate pursuant to Section 6.5(a) or deemed to have
been made with respect to such Interest pursuant to Section 6.2(a) or Section
6.3(a), as the case may be and (ii) all Realized Losses allocated or deemed to
have been allocated to such Interest or Certificate in reduction of Certificate
Balance pursuant to Section 6.6. The Certificate Balance of the Class A-1A
Component and the Class A-1B Component shall equal the Certificate Balance of
the REMIC II Regular Interest A-1A and the REMIC II Regular Interest A-1B,
respectively and the Certificate Balance of the Class A-2A Component and the
Class A-2B Component shall equal the Certificate Balance of the REMIC II Regular
Interest A-2A and the REMIC II Regular Interest A-2B, respectively.
"CERTIFICATE OWNER" means, with respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Book-Entry Certificate, as may be
reflected on the books of
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the Clearing Agency, or on the books of a Person maintaining an account with
such Clearing Agency (directly or as an indirect participant, in accordance with
the rules of such Clearing Agency).
"CERTIFICATE REGISTER" has the meaning provided in Section 3.2.
"CERTIFICATE REGISTRAR" means the registrar appointed pursuant to
Section 3.2 and initially shall be the Paying Agent.
"CERTIFICATEHOLDERS" has the meaning provided in the definition of
"Holder."
"CERTIFICATES" means, collectively, the REMIC III Certificates, the
Class R-I Certificates and the Class R-II Certificates.
"CLASS" means, with respect to the REMIC I Interests, REMIC II
Interests or REMIC III Certificates, any Class of such Certificates or
Interests.
"CLASS A-1 CERTIFICATES," "CLASS A-2 CERTIFICATES," "CLASS X-1
CERTIFICATES," "CLASS X-2 CERTIFICATES," "CLASS B CERTIFICATES," "CLASS C
CERTIFICATES," "CLASS D CERTIFICATES," "CLASS E CERTIFICATES," "CLASS F
CERTIFICATES," "CLASS G CERTIFICATES," "CLASS H CERTIFICATES," "CLASS J
CERTIFICATES," "CLASS K CERTIFICATES," "CLASS L CERTIFICATES," "CLASS M
CERTIFICATES," "CLASS N CERTIFICATES," "CLASS R-I CERTIFICATES," "CLASS R-II
CERTIFICATES," or "CLASS R-III CERTIFICATES," mean the Certificates designated
as "Class A-1," "Class A-2," "Class X-1," "Class X-2," "Class B," "Class C,"
"Class D," "Class E," "Class F," "Class G," "Class H," "Class J," "Class K,"
"Class L," "Class M," "Class N," "Class R-I," "Class R-II" and "Class R-III"
respectively, on the face thereof, in substantially the form attached hereto as
Exhibits.
"CLASS A CERTIFICATES" means the Class A-1 Certificates and the Class
A-2 Certificates, collectively.
"CLASS A-1A COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-1 Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-1A.
"CLASS A-1B COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-1 Certificates, which represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-1B.
"CLASS A-2A COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-2 Certificates, which represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-2A.
"CLASS A-2B COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-2 Certificates, which represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-2B.
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"CLASS N GRANTOR TRUST" means that portion of the Trust Fund consisting
of the Class N Grantor Trust Interest.
"CLASS N GRANTOR TRUST INTEREST" means that portion of the rights
represented by the Class N Certificates that evidences beneficial ownership of
the Excess Interest and the Excess Interest Sub-account, as described in Section
12.1(b) hereof.
"CLASS N REMIC INTEREST" means that portion of the rights represented
by the Class N Certificates that evidences a regular interest in REMIC III,
which rights consist of the rights to the distributions described in Section 6.5
hereof and all other rights of the Holders of the Class N Certificates other
than those comprising the Class N Grantor Trust Interest.
"CLASS X CERTIFICATES" means the Class X-1 Certificates and the Class
X-2 Certificates.
"CLASS X-1 INTEREST AMOUNT" means, with respect to any Distribution
Date and the related Interest Accrual Period, interest equal to the product of
(i) one-twelfth of a per annum rate equal to the weighted average of the Class
X-1 Strip Rates for the Class A-1A Component, Class A-1B Component, Class A-2A
Component, Class A-2B Component, Class B Certificates, Class C Certificates,
Class D Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates, Class K Certificates,
Class L Certificates, Class M Certificates and Class N Certificates, weighted on
the basis of the respective Certificate Balances of such Classes of Certificates
or such Components immediately prior to such Distribution Date and (ii) the
Class X-1 Notional Amount for such Distribution Date.
"CLASS X-1 NOTIONAL AMOUNT" means, with respect to any Distribution
Date, the aggregate of the Certificate Balances of the Principal Balance
Certificates as of the close of business on the preceding Distribution Date.
"CLASS X-1 STRIP RATE" means, with respect to any Class of Certificates
(other than the Class A-1, Class A-2, Class X and the Residual Certificates),
the Class A-1A Component, the Class A-1B Component, the Class A-2A Component and
the Class A-2B Component, (A) for any Distribution Date occurring on or before
July 2005, the excess, if any, of (i) the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date over (ii) (x) in the case of the Class 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 and the Class A-1A Component, the
Pass-Through Rate for such Class of Certificates or such Component and (y) in
the case of the Class A-1B Component, Class A-2A Component, the Class A-2B
Component, the Class B Certificates, Class C Certificates and Class D
Certificates, the rate per annum corresponding to such Distribution Date as set
forth in Schedule IX attached hereto; (B) for any Distribution Date occurring
after July 2005 and on or before March 2009, the excess, if any, of (i) the
Weighted Average REMIC I Net Mortgage Rate for such Distribution Date over (ii)
(x) in the case of the Class A-1A Component, the Class A-1B Component, the 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 and the
Class A-2A Component, the Pass-Through Rate for such Class of Certificates or
such Component and (y) in the case of the Class X-0X
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Xxxxxxxxx, Class B Certificates and Class C Certificates, the rate per annum
corresponding to such Distribution Date as set forth on Schedule X attached
hereto; and (C) for any Distribution Date occurring after March 2009, the excess
of (i) the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date
over (ii) the Pass-Through Rate for each such Class of Certificates or
Component. In no event will any Class X-1 Strip Rate be less than zero.
"CLASS X-2 INTEREST AMOUNT" means, (x) with respect to any Distribution
Date occurring on or before July 2005 and the related Interest Accrual Period,
interest equal to the product of (i) one-twelfth of a per annum rate equal to
the weighted average of the Class X-2 Strip Rates for the Class A-1B Component,
Class A-2A Component, Class A-2B Component, Class B Certificates, Class C
Certificates and Class D Certificates, weighted on the basis of the respective
Certificate Balances of such Classes of Certificates or such Components
immediately prior to such Distribution Date and (ii) the Class X-2 Notional
Amount for such Distribution Date and (y) with respect to any Distribution Date
occurring after July 2005 and on or before the Distribution Date in March 2009
and the related Interest Accrual Period, interest equal to the product of (i)
one-twelfth of a per annum rate equal to the weighted average of the Class X-2
Strip Rates for the Class A-2B Component, Class B Certificates and Class C
Certificates, weighted on the basis of the respective Certificate Balances of
such Classes of Certificates or such Component immediately prior to such
Distribution Date and (ii) the Class X-2 Notional Amount for such Distribution
Date.
"CLASS X-2 NOTIONAL AMOUNT" means, (i) with respect to any Distribution
Date occurring on or before the Distribution Date in July 2005, the aggregate of
the Certificate Balances of the Class A-1B Component, Class A-2A Component,
Class A-2B Component, Class B Certificates, Class C Certificates and Class D
Certificates as of the close of business on the preceding Distribution Date,
(ii) with respect to any Distribution Date after the Distribution Date in July
2005 and on or before the Distribution Date in March 2009, the aggregate of the
Certificate Balances of the Class A-2B Component, Class B Certificates and Class
C Certificates as of the close of business on the preceding Distribution Date
and (iii) with respect to any Distribution Date occurring after the Distribution
Date in March 2009, zero.
"CLASS X-2 STRIP RATE" means, (A) for any Distribution Date occurring
on or before July 2005, with respect to the Class A-1B Component, Class A-2A
Component, Class A-2B Component, Class B Certificates, Class C Certificates and
Class D Certificates, the excess, if any, of (x) the lesser of (i) the rate per
annum corresponding to such Distribution Date as set forth in Schedule IX
attached hereto and (ii) the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date over (y) the Pass-Through Rate for such Class of Certificates
or Component and (B) for any Distribution Date occurring after July 2005 and on
or before March 2009, with respect to the Class A-2B Component, Class B
Certificates and Class C Certificates, the excess, if any, of (x) the lesser of
(i) the rate per annum corresponding to such Distribution Date as set forth in
Schedule X attached hereto and (ii) the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date over (y) the Pass-Through Rate for such Class of
Certificates or Component. For any Distribution Date occurring after March 2009,
the Class X-2 Strip Rate for any Certificate or Component will be equal to zero.
"CLEARING AGENCY" means an organization registered as a "clearing
agency" pursuant to Section 17A of the 1934 Act, which initially shall be the
Depository.
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"CLEARSTREAM" means Clearstream Banking, societe anonyme.
"CLOSING DATE" means March 21, 2002.
"CMSA" means the Commercial Mortgage Securities Association.
"CMSA REPORTS" means the Restricted Servicer Reports and the
Unrestricted Servicer Reports, collectively.
"CODE" means the Internal Revenue Code of 1986, as amended, any
successor statutes thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto in temporary or final form and proposed
regulations thereunder, to the extent that, by reason of their proposed
effective date, such proposed regulations would apply to the Trust.
"COLLECTION PERIOD" means, with respect to any Distribution Date, the
period beginning on the day after the Determination Date in the month preceding
the month of such Distribution Date (or in the case of the first Distribution
Date, the Cut-Off Date) and ending on the Determination Date in the month in
which the Distribution Date occurs.
"COMPENSATING INTEREST" means with respect to any Distribution Date, an
amount equal to the excess of (A) Prepayment Interest Shortfalls incurred in
respect of the Mortgage Loans other than the Specially Serviced Mortgage Loans
resulting from Principal Prepayments on the Mortgage Loans during the related
Collection Period over (B) Prepayment Interest Excesses resulting from Principal
Prepayments on such Mortgage Loans during the same Collection Period, but in any
event with respect to Compensating Interest to be paid by the Master Servicer
hereunder, not more than the portion of the aggregate Master Servicing Fee
accrued at a rate per annum equal to 2 basis points for the related Collection
Period calculated in respect of all the Mortgage Loans (including REO Mortgage
Loans).
"COMPONENT" means either of the Class A-1A Component, the Class A-1B
Component, the Class A-2A Component or the Class A-2B Component.
"CONDEMNATION PROCEEDS" means any awards resulting from the full or
partial condemnation or any eminent domain proceeding or any conveyance in lieu
or in anticipation thereof with respect to a Mortgaged Property by or to any
governmental, quasi-governmental authority or private entity with condemnation
powers other than amounts to be applied to the restoration, preservation or
repair of such Mortgaged Property or released to the related Mortgagor in
accordance with the terms of the Mortgage Loan and (if applicable) its related B
Note.
"CONTROLLING CLASS" means the most subordinate Class of REMIC Regular
Certificates outstanding at any time of determination; provided, that, if the
aggregate Certificate Balance of such Class is less than 25% of the initial
Certificate Balance of such Class as of the Closing Date, the Controlling Class
shall be the next most subordinate Class of REMIC Regular Certificates
outstanding. As of the Closing Date, the Controlling Class will be the Class N
Certificates.
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"CONTROLLING PERSON" means, with respect to any Person, any other
Person who "controls" such Person within the meaning of the 1933 Act.
"CORPORATE TRUST OFFICE" means, with respect to the presentment and
surrender of Certificates for the final distribution thereon or the presentment
and surrender of Certificates for any other purpose, the principal corporate
trust office of the Certificate Registrar. The principal corporate trust office
of the Trustee is presently located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000, Attention: Asset-Backed Securities Trust Services Group--Bear
Xxxxxxx Commercial Mortgage Securities Inc. Series 2002-TOP6 and the office of
the Certificate Registrar is presently located for certificate transfer purposes
at Xxxxx Fargo Center, Sixth and Marquette Avenue, MAC #N9303-121, Xxxxxxxxxxx,
Xxxxxxxxx 00000-0000, Attention: Corporate Trust Services (CMBS)-- Bear Xxxxxxx
Commercial Mortgage Securities Inc. Series 2002-TOP6, and for all other purposes
at 00000 Xxxxxx Xxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention:
Corporate Trust Services (CMBS)-- Bear Xxxxxxx Commercial Mortgage Securities
Inc. Series 2002-TOP6, or at such other address as the Trustee or Certificate
Registrar may designate from time to time by notice to the Certificateholders,
the Depositor, the Master Servicer, the Paying Agent and the Special Servicer.
"CORRESPONDING REMIC I REGULAR INTEREST" means with respect to each
Mortgage Loan, the REMIC I Regular Interest having an initial Certificate
Balance equal to the Principal Balance of such Mortgage Loan outstanding as of
the Cut-Off Date, after taking into account all principal and interest payments
made or due prior to the Cut-Off Date.
"CORRESPONDING REMIC II REGULAR INTEREST" means (i) with respect to
each Class of Certificates other than the Class A-1 Certificates and the Class
A-2 Certificates, the REMIC II Regular Interest having the same letter
designation, (ii) with respect to the Class A-1 Certificates, the REMIC II
Regular Interest A-1A and the REMIC II Regular Interest A-1B and (iii) with
respect to the Class A-2 Certificates, the REMIC II Regular Interest A-2A and
the REMIC II Regular Interest A-2B.
"CROSSED MORTGAGE LOAN" has the meaning set forth in Section 2.3(a)
hereof.
"CUSTODIAN" means the Trustee or any Person who is appointed by the
Trustee at any time as custodian pursuant to Section 7.9 and who is unaffiliated
with the Depositor and each Seller and satisfies the eligibility requirements of
the Trustee as set forth in Section 7.5.
"CUSTOMER" means a broker, dealer, bank, other financial institution or
other Person for whom the Clearing Agency effects book-entry transfers and
pledges of securities deposited with the Clearing Agency.
"CUT-OFF DATE" means the end of business on March 1, 2002. The Cut-Off
Date for any Mortgage Loan that has a Due Date on a date other than the first
day of each month shall be the end of business on March 1, 2002, and Scheduled
Payments due in March 2002 with respect to Mortgage Loans not having Due Dates
on the first of each month have been deemed received on March 1, 2002, not the
actual day on which such Scheduled Payments were due.
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"DEBT SERVICE COVERAGE RATIO" means, with respect to any Mortgage Loan,
as of any date of determination and for any period, the amount calculated for
such date of determination in accordance with the procedures set forth in
Exhibit T.
"DEBT SERVICE REDUCTION AMOUNT" means, with respect to a Due Date and
the related Determination Date, the amount of the reduction of the Scheduled
Payment which a Mortgagor is obligated to pay on such Due Date with respect to a
Mortgage Loan or B Note as a result of any proceeding under bankruptcy law or
any similar proceeding (other than a Deficient Valuation Amount); provided,
however, that in the case of an amount that is deferred, but not forgiven, such
reduction shall include only the net present value (calculated at the related
Mortgage Rate) of the reduction.
"DEFAULTED MORTGAGE LOAN" means a Mortgage Loan that is in default
under the terms of the applicable Mortgage Loan documentation and for which any
applicable grace period has expired.
"DEFEASANCE COLLATERAL" means, with respect to any Defeasance Loan, the
United States Treasury obligations required to be pledged in lieu of prepayment
pursuant to the terms thereof.
"DEFEASANCE LOAN" means any Mortgage Loan or B Note which requires or
permits the related Mortgagor (or permits the holder of such Mortgage Loan or B
Note to require the related Mortgagor) to pledge Defeasance Collateral to such
holder in lieu of prepayment.
"DEFECTIVE MORTGAGE LOAN" has the meaning set forth in Section 2.3(a)
hereof.
"DEFICIENT VALUATION" means, with respect to any Mortgage Loan (other
than an A Note) and any A/B Mortgage Loan, a valuation by a court of competent
jurisdiction of the Mortgaged Property relating to such Mortgage Loan or A/B
Mortgage Loan in an amount less than the then outstanding indebtedness under
such Mortgage Loan or A/B Mortgage Loan, which valuation results from a
proceeding initiated under the United States Bankruptcy Code, as amended from
time to time, and that reduces the amount the Mortgagor is required to pay under
such Mortgage Loan or A/B Mortgage Loan.
"DEFICIENT VALUATION AMOUNT" means (i) with respect to each Mortgage
Loan (other than an A Note) and any A/B Mortgage Loan, the amount by which the
total amount due with respect to such Mortgage Loan (excluding interest not yet
accrued), including the Principal Balance of such Mortgage Loan plus any accrued
and unpaid interest thereon and any other amounts recoverable from the Mortgagor
with respect thereto pursuant to the terms thereof, is reduced in connection
with a Deficient Valuation and (ii) with respect to any A Note, the portion of
any Deficient Valuation Amount for the related A/B Mortgage Loan that is borne
by the holder of the A Note under the related Intercreditor Agreement.
"DEFINITIVE CERTIFICATES" means Certificates of any Class issued in
definitive, fully registered, certificated form without interest coupons.
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"DELETED MORTGAGE LOAN" means a Mortgage Loan which is repurchased from
the Trust pursuant to the terms hereof or as to which one or more Qualifying
Substitute Mortgage Loans are substituted.
"DEPOSITOR" means Bear Xxxxxxx Commercial Mortgage Securities Inc., a
Delaware corporation, and its successors in interest.
"DEPOSITORY" has the meaning set forth in Section 3.7(a).
"DEPOSITORY AGREEMENT" means the Letter of Representations dated the
Closing Date and by and among the Depositor, the Paying Agent and the
Depository.
"DETERMINATION DATE" means, with respect to any Distribution Date, the
earlier of (i) the 10th day of the month in which such Distribution Date occurs
or, if such day is not a Business Day, the immediately preceding Business Day,
and (ii) the 5th Business Day prior to the related Distribution Date, commencing
April 8, 2002.
"DIRECTLY OPERATE" means, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management of
such REO Property, the holding of such REO Property primarily for sale to
customers (other than a sale of an REO Property pursuant to and in accordance
with Section 9.15) or the performance of any construction work thereon, in each
case other than through an Independent Contractor; provided, however, that the
Trustee (or the Special Servicer on behalf of the Trustee) shall not be
considered to Directly Operate an REO Property solely because the Trustee (or
the Special Servicer on behalf of the Trustee) establishes rental terms, chooses
tenants, enters into or renews leases, deals with taxes and insurance, or makes
decisions as to repairs, tenant improvements or capital expenditures with
respect to such REO Property (including, without limitation, construction
activity to effect repairs or in connection with leasing activity) or undertakes
any ministerial action incidental thereto.
"DISCOUNT RATE" means the rate which, when compounded monthly, is
equivalent to the Treasury Rate when compounded semi-annually. The "Treasury
Rate," unless otherwise set forth in the Mortgage Loan documents, is the yield
calculated by the linear interpolation of the yields, as reported in Federal
Reserve Statistical Release H.15--Selected Interest Rates under the heading
"U.S. government securities/Treasury constant maturities" for the week ending
prior to the date of the relevant principal prepayment, of U.S. Treasury
constant maturities with a maturity date (one longer and one shorter) most
nearly approximating the maturity date (or the Anticipated Repayment Date, if
applicable) of the Mortgage Loan prepaid. If Release H.15 is no longer
published, the Master Servicer will select a comparable publication to determine
the Treasury Rate.
"DISQUALIFIED ORGANIZATION" means any of (i) the United States, any
State or any political subdivision thereof, or any agency or instrumentality of
any of the foregoing (other than an instrumentality which is a corporation if
all of its activities are subject to tax and, except for FHLMC, a majority of
its board of directors is not selected by any such governmental unit), (ii) a
foreign government, international organization or any agency or instrumentality
of either of the foregoing, (iii) an organization (except certain farmers'
cooperatives described in Section 521 of
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the Code) which is exempt from tax imposed by Chapter 1 of the Code (unless such
organization is subject to the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code, and (v) any other Person so
designated by the Master Servicer based upon an Opinion of Counsel that the
holding of an ownership interest in a Residual Certificate by such Person may
cause any of the REMICs, or any Person having an Ownership Interest in any Class
of Certificates, other than such Person, to incur a liability for any federal
tax imposed under the Code that would not otherwise be imposed but for the
transfer of an ownership interest in a Residual Certificate to such Person. The
terms "United States," "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
"DISTRIBUTABLE CERTIFICATE INTEREST" means, with respect to any
Distribution Date and any Class of Certificates (other than the Residual
Certificates) or Interests, the sum of (A) Accrued Certificate Interest in
respect of such Class or Interest, reduced (to not less than zero) by (i) any
Net Aggregate Prepayment Interest Shortfalls for such Class of Certificates or
Interests, allocated on such Distribution Date to such Class or Interest
pursuant to Section 6.7, and (ii) Realized Losses allocated on such Distribution
Date to reduce the Distributable Certificate Interest payable to such Class or
Interest pursuant to Section 6.6, plus (B) the Unpaid Interest.
"DISTRIBUTION ACCOUNT" means the Distribution Account maintained by the
Paying Agent on behalf of the Trustee, in accordance with the provisions of
Section 5.3, which account shall be an Eligible Account.
"DISTRIBUTION DATE" means the 15th day of each month or, if such day is
not a Business Day, the next succeeding Business Day, commencing April 15, 2002.
"DUE DATE" means, with respect to a Mortgage Loan or B Note, the date
on which a Scheduled Payment is due.
"ELIGIBLE ACCOUNT" means an account (or accounts) that is any of the
following: (i) maintained with a depository institution or trust company whose
(A) commercial paper, short-term unsecured debt obligations or other short-term
deposits are rated at least "P-1" by Moody's and "A-1" by S&P, if the deposits
are to be held in the account for 30 days or less, or (B) long-term unsecured
debt obligations are rated at least "Aa2" by Moody's and "AA-" (or "A" (without
regard to any plus or minus), if the short-term unsecured debt obligations are
rated at least "A-1") by S&P, if the deposits are to be held in the account more
than 30 days or (ii) a segregated trust account or accounts maintained in the
trust department of the Trustee, the Paying Agent or other financial institution
having a combined capital and surplus of at least $50,000,000 and subject to
regulations regarding fiduciary funds on deposit similar to Title 12 of the Code
of Federal Regulations Section 9.10(b), or (iii) an account or accounts of a
depository institution acceptable to each Rating Agency, as evidenced by Rating
Agency Confirmation with respect to the use of any such account as the
Certificate Account or the Distribution Account. Notwithstanding anything in the
foregoing to the contrary, an account shall not fail to be an Eligible Account
solely because it is maintained with Xxxxx Fargo Bank, National Association or
Xxxxx Fargo Bank Iowa, N.A., each a wholly-owned subsidiary of Xxxxx Fargo &
Co., provided that such subsidiary's or its parent's (A) commercial paper,
short-term unsecured debt
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obligations or other short-term deposits are at least "P-1" in the case of
Moody's, and "A-1" in the case of S&P, if the deposits are to be held in the
account for 30 days or less, or (B) long-term unsecured debt obligations are
rated at least "Aa3" in the case of Moody's and "AA-" (or "A" (without regard to
any plus or minus), if the short-term unsecured debt obligations are rated at
least "A-1") in the case of S&P, if the deposits are to be held in the account
for more than 30 days.
"ELIGIBLE INVESTMENTS" means any one or more of the following financial
assets or other property:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America, FNMA,
FHLMC or any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the United
States of America; provided that any obligation of FNMA or FHLMC, other than an
unsecured senior debt obligation of FNMA or FHLMC, shall be an Eligible
Investment only if Rating Agency Confirmation is obtained with respect to such
investment;
(ii) demand or time deposits in, unsecured certificates of deposit of,
money market deposit accounts of, or bankers' acceptances issued by, any
depository institution or trust company (including the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent or any Affiliate of the Master
Servicer, the Special Servicer, the Paying Agent or the Trustee, acting in its
commercial capacity) incorporated or organized under the laws of the United
States of America or any State thereof and subject to supervision and
examination by federal or state banking authorities, so long as the commercial
paper or other short-term debt obligations of such depository institution or
trust company are rated "A-1+" by S&P and "Prime-1" by Moody's or the long-term
unsecured debt obligations of such depository institution or trust company have
been assigned a rating by each Rating Agency at least equal "AA-" by S&P and
"Aa2" by Moody's or its equivalent or, in each case, if not rated by a Rating
Agency, then such Rating Agency has issued a Rating Agency Confirmation;
(iii) repurchase agreements or obligations with respect to any security
described in clause (i) above where such security has a remaining maturity of
one year or less and where such repurchase obligation has been entered into with
a depository institution or trust company (acting as principal) described in
clause (ii) above and where such repurchase obligation will mature prior to the
Business Day preceding the next date upon which, as described in this Agreement,
such amounts are required to be withdrawn from the Certificate Account and which
meets the minimum rating requirement for such entity described above (or for
which Rating Agency Confirmation is obtained with respect to such ratings);
(iv) debt obligations (other than stripped bonds or stripped coupons)
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof, which
securities are rated "AA-" or its equivalent by each Rating Agency, unless
otherwise specified in writing by the Rating Agency; provided that securities
issued by any particular corporation will not be Eligible Investments to the
extent that investment therein will cause the then-outstanding principal amount
of securities issued by such corporation and held in the Certificate Account to
exceed 5% of the sum of the aggregate Certificate Principal Balance of the
Principal Balance Certificates and the aggregate principal amount of all
Eligible Investments in the Certificate Account;
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(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a specified
date not more than one year after the date of issuance thereof) rated "A-1+" by
S&P and "Prime-1" by Moody's (or for which Rating Agency Confirmation is
obtained with respect to such ratings);
(vi) units of investment funds (including money market funds) that are
rated "AAAm" by S&P and in the highest long-term category by Moody's, or if not
rated by S&P or Moody's, then S&P or Moody's, as applicable, has issued a Rating
Agency Confirmation;
(vii) guaranteed reinvestment agreements maturing within 365 days or
less issued by any bank, insurance company or other corporation whose long-term
unsecured debt rating is not less than "AA-" by S&P and "Aa2" by Moody's, or for
which Rating Agency Confirmation is obtained with respect to such ratings;
provided that, with respect to S&P, such agreements state that funds may be
withdrawn at par without penalty;
(viii) any money market funds (including those managed or advised by
the Paying Agent or its affiliates) that maintain a constant asset value and
that are rated "Aaa" (or its equivalent rating) by Moody's and "AAAm" or
"AAAm-G" (or its equivalent) by S&P, and any other demand, money-market or time
deposit, or any other obligation, security or investment, with respect to which
Rating Agency Confirmation has been obtained; and
(ix) such other investments bearing interest or sold at a discount,
earning a return "in the nature of interest" within the meaning of Treasury
Regulation Section 1.860G-2(g)(1)(i) (as evidenced by an Opinion of Counsel
delivered to the Trustee and the Paying Agent by the Master Servicer at the
Master Servicer's expense), as are acceptable to the Rating Agencies (as
evidenced by Rating Agency Confirmation) and treated as "permitted investments"
that are "cash flow investments" under Code Section 860G(a)(5);
provided (A) such investment is held for a temporary period pursuant to Section
1.860G-2(g)(i) of the Treasury Regulations, (B) such investment is payable by
the obligor in U.S. dollars, and (C) that no such instrument shall be an
Eligible Investment (1) if such instrument evidences either (a) a right to
receive only interest payments or only principal payments with respect to the
obligations underlying such instrument or (b) a right to receive both principal
and interest payments derived from obligations underlying such instrument and
the principal and interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, or (2) if it may be redeemed at a price below the
purchase price or (3) if it is not treated as a "permitted investment" that is a
"cash flow investment" under Code Section 860G(a)(5); and provided, further,
that any such instrument shall have a maturity date no later than the date such
instrument is required to be used to satisfy the obligations under this
Agreement, and, in any event, shall not have a maturity in excess of one year;
any such instrument must have a predetermined fixed dollar of principal due at
maturity that cannot vary or change; if rated, the obligation must not have an
"r" highlighter affixed to its rating; interest on any variable rate instrument
shall be tied to a single interest rate index plus a single fixed spread (if
any) and move proportionally with that index; and provided, further, that no
amount beneficially owned by any REMIC Pool (including any amounts collected by
the Master Servicer but not yet deposited in the Certificate Account) may be
invested in investments treated as equity interests for Federal income tax
purposes. No Eligible
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Investments shall be purchased at a price in excess of par. For the purpose of
this definition, units of investment funds (including money market funds) shall
be deemed to mature daily.
"ENVIRONMENTAL LAWS" means any and all federal, state and local
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions, now or hereafter in effect, relating to health or the
environment or to emissions, discharges or releases of chemical substances,
including, without limitation, any and all pollutants, contaminants, petroleum
or petroleum products, asbestos or asbestos-containing materials,
polychlorinated biphenyls, urea-formaldehyde insulation, radon, industrial,
toxic or hazardous substances or wastes, into the environment, including,
without limitation, ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use, labeling,
registration, treatment, storage, disposal, transport or handling of any of the
foregoing substances or wastes or the clean-up or other remediation thereof.
"ENVIRONMENTAL INSURANCE POLICY" shall mean, with respect to any
Mortgage Loan or the related Mortgaged Property or REO Property, any insurance
policy covering pollution conditions and/or other environmental conditions that
is maintained from time to time in respect of such Mortgage Loan, Mortgaged
Property or REO Property, as the case may be, for the benefit of, among others,
the Trustee on behalf of the Certificateholders.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ESCROW ACCOUNT" means an account established by or on behalf of the
Master Servicer pursuant to Section 8.3(e).
"ESCROW AMOUNT" means any amount payable with respect to a Mortgage
Loan (including an A/B Mortgage Loan) for taxes, assessments, water rates,
Standard Hazard Insurance Policy premiums, ground lease payments, reserves for
capital improvements, deferred maintenance, repairs, tenant improvements,
leasing commissions, rental achievements, environmental matters and other
reserves or comparable items.
"EVENT OF DEFAULT" has the meaning set forth in Section 8.28(a).
"EXCESS INTEREST" means, with respect to an ARD Loan if an ARD Loan is
not prepaid in full on or before its Anticipated Repayment Date, the excess, if
any of (i) interest accrued at the rate of interest applicable to such Mortgage
Loan after such Anticipated Repayment Date (plus any interest on such interest
as may be provided for under the Mortgage Loan documents) over (ii) interest
accrued at the rate of interest applicable to such Mortgage Loan before such
Anticipated Repayment Date. Excess Interest on the ARD Loan is an asset of the
Trust, but shall not be an asset of any REMIC Pool formed hereunder.
"EXCESS INTEREST SUB-ACCOUNT" means an administrative account deemed to
be a sub-account of the Distribution Account. The Excess Interest Sub-account
shall not be an asset of any REMIC Pool formed hereunder.
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"EXCESS LIQUIDATION PROCEEDS" means, with respect to any Mortgage Loan,
the excess of (i) Liquidation Proceeds of a Mortgage Loan or related REO
Property, over (ii) the amount that would have been received if a Principal
Prepayment in full had been made with respect to such Mortgage Loan (or, in the
case of an REO Property related to an A/B Mortgage Loan, a Principal Prepayment
in full had been made with respect to both the related A Note and B Note) on the
date such proceeds were received.
"EXCESS SERVICING FEE" means, with respect to the Mortgage Loans for
which an "excess servicing fee rate" is designated on the Mortgage Loan
Schedule, the monthly fee payable to Xxxxx Fargo Bank, National Association or
its successors and assigns, as holder of excess servicing rights, which fee
shall accrue on the Scheduled Principal Balance of each such Mortgage Loan
immediately prior to the Due Date occurring in each month at the per annum rate
(determined in the same manner as the applicable Mortgage Rate for such Mortgage
Loan is determined for such month) specified on the Mortgage Loan Schedule (the
"Excess Servicing Fee Rate"). Each holder of excess servicing rights is entitled
to Excess Servicing Fees only with respect to the Mortgage Loans as indicated on
Exhibit J hereto.
"EXCHANGE CERTIFICATION" means an Exchange Certification substantially
in the form set forth in Exhibit H hereto executed by a holder of an interest in
a Regulation S Global Certificate or a Rule 144A-IAI Global Certificate, as
applicable.
"EXEMPTION" means each of the individual prohibited transaction
exemptions granted by the United States Department of Labor to the Underwriters,
as amended.
"EXPENSE LOSS" means a loss realized upon payment by the Trust of an
Additional Trust Expense.
"EXTENSION" has the meaning set forth in Section 9.15(a).
"FDIC" means the Federal Deposit Insurance Corporation or any successor
thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or any
successor thereto.
"FHLMC AUDIT PROGRAM" has the meaning set forth in Section 8.13.
"FINAL CERTIFICATION" has the meaning set forth in Section 2.2.
"FINAL PROSPECTUS SUPPLEMENT" has the meaning set forth in the
Preliminary Statement hereto.
"FINAL RECOVERY DETERMINATION" means a determination with respect to
any Mortgage Loan, B Note or Specially Serviced Mortgage Loan by the Master
Servicer in consultation with the Special Servicer in respect of any Defaulted
Mortgage Loan (including a Mortgage Loan or B Note that became an REO Property),
in each case, in its good faith discretion, consistent with the Servicing
Standard, that all Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds, Purchase Proceeds and other payments or recoveries which the
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Master Servicer or the Special Servicer, as the case may be, expects to be
finally recoverable on such Mortgage Loan or B Note, without regard to any
obligation of the Master Servicer, the Trustee or the Fiscal Agent, as the case
may be, to make payments from its own funds pursuant to Article IV hereof, have
been recovered. The Special Servicer shall be required to provide the Master
Servicer with prompt written notice of any Final Recovery Determination with
respect to any Specially Serviced Mortgage Loan upon making such determination.
The Master Servicer shall notify the Trustee and the Paying Agent of such
determination and the Paying Agent shall deliver a copy of such notice to each
Rating Agency.
"FINAL SCHEDULED DISTRIBUTION DATE" means, for each Class of rated
Certificates, the Distribution Date on which such Class would be paid in full if
payments were made on the Mortgage Loans in accordance with their terms, except
that ARD Loans are assumed to be repaid on their Anticipated Repayment Dates.
"FISCAL AGENT" means ABN AMRO Bank N.V., a banking association
organized under the laws of the Netherlands and its permitted successors and
assigns.
"FISCAL AGENT TERMINATION EVENT" has the meaning set forth in Section
4.7 hereof.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"GLOBAL CERTIFICATE" means any Rule 144A-IAI Global Certificate,
Regulation S Temporary Global Certificate or Regulation S Permanent Global
Certificate.
"HOLDER" means the Person in whose name a Certificate is registered on
the Certificate Register.
"IAI DEFINITIVE CERTIFICATE" means, with respect to any Class of
Certificate sold to Institutional Accredited Investors who are not Qualified
Institutional Buyers, a Certificate in definitive, fully registered certificated
form without interest coupons.
"INDEPENDENT" means, when used with respect to any Accountants, a
Person who is "independent" within the meaning of Rule 2-01(B) of the Securities
and Exchange Commission's Regulation S-X. Independent means, when used with
respect to any other Person, a Person who (A) is in fact independent of another
specified Person and any Affiliate of such other Person, (B) does not have any
material direct or indirect financial interest in such other Person or any
Affiliate of such other Person, (C) is not connected with such other Person or
any Affiliate of such other Person as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions
and (D) is not a member of the immediate family of a Person defined in clause
(B) or (C) above.
"INDEPENDENT CONTRACTOR" means, either (i) with respect to any Mortgage
Loan (A) that is not a Specially Serviced Mortgage Loan, any Person designated
by the Master Servicer (other than the Master Servicer, but which may be an
Affiliate of the Master Servicer), or (B) that is a Specially Serviced Mortgage
Loan, any Person designated by the Special Servicer that would be an
"independent contractor" with respect to a REMIC within the meaning of
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Section 856(d)(3) of the Code if such REMIC were a real estate investment trust
(except that the ownership test set forth in such Section shall be considered to
be met by any Person that owns, directly or indirectly, 35% or more of the
Aggregate Certificate Balance or Notional Amount, as the case may be, of any
Class of the Certificates (other than the Class R-III Certificates), a
Percentage Interest of 35% or more in the Class R-III Certificates or such other
interest in any Class of the Certificates or of the applicable REMIC as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee or
the Trust) so long as such REMIC does not receive or derive any income from such
Person and provided that the relationship between such Person and such REMIC is
at arm's length, all within the meaning of Treasury Regulation Section
1.856-4(b)(5), or (ii) any other Person (including the Master Servicer or the
Special Servicer) upon receipt by the Trustee of an Opinion of Counsel, which
shall be at the expense of the Person delivering such opinion to the Trustee, to
the effect that the taking of any action in respect of any REO Property by such
Person, subject to any conditions therein specified, that is otherwise herein
contemplated to be taken by an Independent Contractor will not cause such REO
Property to cease to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code (determined without regard to the exception
applicable for purposes of Section 860D(a) of the Code), or cause any income
realized in respect of such REO Property to fail to qualify as Rents from Real
Property.
"INITIAL CERTIFICATION" has the meaning set forth in Section 2.2.
"INITIAL DEPOSIT" means the amount of all collections made on the
Mortgage Loans from the Cut-Off Date to and excluding the Closing Date.
"INSPECTION REPORT" means the report delivered by the Master Servicer
or the Special Servicer, as the case may be, substantially in the form of
Exhibit L hereto.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institutional accredited
investor qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of Regulation D
of the 1933 Act.
"INSURED ENVIRONMENTAL EVENT" has the meaning set forth in Section
9.1(f).
"INSURANCE POLICIES" means, collectively, any Standard Hazard Insurance
Policy, flood insurance policy, title insurance policy or Environmental
Insurance Policy relating to the Mortgage Loans or the Mortgaged Properties in
effect as of the Closing Date or thereafter during the term of this Agreement.
"INSURANCE PROCEEDS" means amounts paid by the insurer under any
Insurance Policy, other than amounts required to be paid over to the Mortgagor
pursuant to law, the related Mortgage Loan, the related B Note or the Servicing
Standard.
"INTERCREDITOR AGREEMENT" means, with respect to an A/B Mortgage Loan,
the related intercreditor agreement by and between the holder of the related A
Note and the holder of the related B Note relating to the relative rights of
such holders of the respective A Note and B Note, as the same may be further
amended from time to time in accordance with the terms thereof. There are no
Intercreditor Agreements in connection with A/B Mortgage Loans related to the
Trust.
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"INTEREST" means a REMIC I Interest or a REMIC II Interest, as
applicable.
"INTEREST ACCRUAL PERIOD" means, for any Distribution Date, with
respect to all Classes of Certificates and Interests (other than the Residual
Certificates), the period beginning on the first day of the month preceding the
month in which such Distribution Date occurs and ending on the last day of the
month preceding the month in which such Distribution Date occurs.
"INTEREST RESERVE ACCOUNT" means that Interest Reserve Account
maintained by the Master Servicer pursuant to Section 5.1(a), which account
shall be an Eligible Account.
"INTEREST RESERVE AMOUNT" has the meaning set forth in Section 5.1(d).
"INTEREST RESERVE LOANS" shall mean the Mortgage Loans which bear
interest other than on the basis of a 360-day year consisting of twelve (12)
30-day months.
"INTERESTED PERSON" means, as of any date of determination, the Master
Servicer, the Special Servicer, the Depositor, the holder of any related Junior
Indebtedness (with respect to any particular Mortgage Loan), a holder of 50% or
more of the Controlling Class, the Operating Adviser, any Independent Contractor
engaged by the Master Servicer or the Special Servicer pursuant to this
Agreement, or any Person actually known to a Responsible Officer of the Trustee
to be an Affiliate of any of them.
"JUNIOR INDEBTEDNESS" means any indebtedness of any Mortgagor that is
secured by a lien that is junior in right of payment to the lien of the Mortgage
securing the related Mortgage Note.
"LATE COLLECTIONS" means, with respect to any Mortgage Loan or B Note,
all amounts received during any Collection Period, whether as late payments or
as Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, Purchase
Proceeds or otherwise, that represent payments or collections of Scheduled
Payments due but delinquent for a previous Collection Period and not previously
recovered.
"LATE FEES" means a fee payable to the Master Servicer or the Special
Servicer, as the case may be, to the extent actually collected from the
Mortgagor as provided in the related Mortgage Loan or B Note in connection with
a late payment made by such Mortgagor.
"LIQUIDATION EXPENSES" means reasonable and direct expenses incurred by
the Special Servicer on behalf of the Trust in connection with the enforcement
and liquidation of any Specially Serviced Mortgage Loan or REO Property acquired
in respect thereof including, without limitation, reasonable legal fees and
expenses, appraisal fees, committee or referee fees, property manager fees, and,
if applicable, brokerage commissions and conveyance taxes for such Specially
Serviced Mortgage Loan. All Liquidation Expenses relating to enforcement and
disposition of the Specially Serviced Mortgage Loan shall be (i) paid out of
income from the related REO Property, to the extent available or (ii) advanced
by the Master Servicer, subject to Section 4.4 and Section 4.6(e) hereof, as a
Servicing Advance.
"LIQUIDATION FEE" means a fee equal to the product of (x) 1.0% and (y)
the Liquidation Proceeds received in connection with a final disposition of a
Specially Serviced
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Mortgage Loan or REO Property and any Condemnation Proceeds received by the
Trust; provided, however, that (i) in the case of a final disposition consisting
of the repurchase of a Mortgage Loan or REO Property by a Seller pursuant to
Section 2.3, such fee will only be paid by such Seller if repurchased after the
date that is 180 days after the applicable Seller receives notice of the breach
or defect causing the repurchase and (ii) in the case of an A/B Mortgage Loan,
such fee will not be payable if the holder of the related B Note, within 15 days
after receipt of notice that a Servicing Transfer Event has occurred with
respect to the related A Note or the B Note, exercises its option to purchase
the A Note pursuant to the Intercreditor Agreement; provided, that this clause
(ii) shall not be applicable if the holder of the related B Note has exercised
its right to cure three consecutive monetary defaults under the Intercreditor
Agreement and a monetary default occurs in the following month.
"LIQUIDATION PROCEEDS" means proceeds from the sale or liquidation of a
Mortgage Loan or B Note or related REO Property, net of Liquidation Expenses and
any related Advances and interest thereon (to the extent not otherwise paid
pursuant to Section 4.6(c)).
"LIQUIDATION REALIZED LOSS" means, with respect to each Mortgage Loan
or REO Property, as the case may be, as to which a Cash Liquidation or REO
Disposition has occurred, an amount equal to the sum, without duplication, of
(A) the Principal Balance of the Mortgage Loan (or deemed Principal Balance, in
the case of an REO Mortgage Loan) as of the date of the Cash Liquidation or REO
Disposition, plus (B) unpaid interest and interest accrued thereon at the
applicable Mortgage Rate, plus (C) any expenses incurred in connection with such
Mortgage Loan that are reimbursable to any Person, other than amounts previously
treated as Expense Losses or included in the definition of Liquidation Expenses
minus the sum of (i) REO Income applied as recoveries of principal or interest
on the related Mortgage Loan or REO Property, and (ii) Liquidation Proceeds,
Late Collections and all other amounts recovered from the related Mortgagor and
received during the Collection Period in which such Cash Liquidation or REO
Disposition occurred and which are not required under any Intercreditor
Agreement to be payable or reimbursable to any holder of a B Note. REO Income
and Liquidation Proceeds shall be applied first against any Expense Losses (to
the extent not included in the definition of Liquidation Expenses) for such
Mortgage Loan, the unpaid interest on the Mortgage Loan, calculated as described
in clause (B) above, and then against the Principal Balance of such Mortgage
Loan, calculated as described in clause (A) above.
"LOAN-TO-VALUE RATIO" means, as of any date with respect to a Mortgage
Loan, the fraction, expressed as a percentage, the numerator of which is the
Principal Balance of such Mortgage Loan at the date of determination and the
denominator of which is the value of the Mortgaged Property as shown on the most
recent Appraisal or valuation of the Mortgaged Property which is available as of
such date.
"LOCK-BOX ACCOUNT" has the meaning set forth in Section 8.3(g).
"LOCK-BOX AGREEMENT" means, with respect to any Mortgage Loan, any
lock-box agreement relating to such Mortgage Loan among the related Mortgagor, a
depositary institution and the Master Servicer pursuant to which a Lock-Box
Account is created.
"LUXEMBOURG PAYING AGENT" has the meaning set forth in Section 7.18.
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"LUXEMBOURG TRANSFER AGENT" has the meaning set forth in Section 7.18.
"LOSSES" has the meaning set forth in Section 12.4.
"MAI" means Member of the Appraisal Institute.
"MASTER SERVICER" means Xxxxx Fargo Bank, National Association and its
permitted successors or assigns.
"MASTER SERVICER REMITTANCE DATE" means, for each Distribution Date,
the Business Day immediately preceding such Distribution Date.
"MASTER SERVICER REMITTANCE REPORT" means a report prepared by the
Master Servicer and in such media as may be agreed upon by the Master Servicer
and the Paying Agent containing such information regarding the Mortgage Loans as
will permit the Paying Agent to calculate the amounts to be distributed to the
Certificateholders pursuant to this Agreement and to furnish the Monthly
Certificateholders Report to Certificateholders required to be delivered
hereunder and containing such additional information as the Master Servicer, the
Paying Agent and the Depositor may from time to time mutually agree.
"MASTER SERVICING FEE" means for each calendar month, as to each
Mortgage Loan and B Note (including REO Mortgage Loans and Defeasance Loans), an
amount equal to the Master Servicing Fee Rate applicable to such month
(determined in the same manner (other than the rate of accrual) as the
applicable Mortgage Rate is determined for such Mortgage Loan or B Note for such
month) multiplied by the Scheduled Principal Balance of such Mortgage Loan or B
Note immediately before the Due Date occurring in such month, subject to
reduction in respect of Compensating Interest, as set forth in Section 8.10(c).
"MASTER SERVICING FEE RATE" means, with respect to each Mortgage Loan
and any B Note (including any Mortgage Loan relating to an REO Property), the
rate per annum specified as such on the Mortgage Loan Schedule.
"MATERIAL BREACH" has the meaning set forth in Section 2.3(a).
"MATERIAL DOCUMENT DEFECT" has the meaning set forth in Section 2.3(a).
"MATURITY DATE" means, with respect to any Mortgage Loan or B Note as
of any date of determination, the date on which the last payment of principal is
due and payable under the related Mortgage Loan or B Note, after taking into
account all Principal Prepayments received and any Deficient Valuation, Debt
Service Reduction Amount or modification of the Mortgage Loan or B Note
occurring prior to such date of determination, but without giving effect to (i)
any acceleration of the principal of such Mortgage Loan or B Note or (ii) any
grace period permitted by the related Mortgage Loan or B Note.
"MODIFICATION FEE" means a fee, if any, collected from a Mortgagor by
the Master Servicer in connection with a modification of any Mortgage Loan or B
Note other than a Specially Serviced Mortgage Loan or collected by the Special
Servicer in connection with the modification of a Specially Serviced Mortgage
Loan.
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"MODIFICATION LOSS" means, with respect to each Mortgage Loan, (i) a
decrease in the Principal Balance of such Mortgage Loan as a result of a
modification thereof in accordance with the terms hereof, (ii) any expenses
connected with such modification, to the extent (x) reimbursable to the Trustee,
the Special Servicer or the Master Servicer and (y) not recovered from the
Mortgagor or (iii) in the case of a modification of such Mortgage Loan that
reduces the Mortgage Rate thereof, the excess, on each Due Date, of the amount
of interest that would have accrued at a rate equal to the original Mortgage
Rate, over interest that actually accrued on such Mortgage Loan during the
preceding Collection Period.
"MONEY TERM" means with respect to any Mortgage Loan or B Note, the
Maturity Date, Mortgage Rate, Principal Balance, amortization term or payment
frequency thereof or any provision thereof requiring the payment of a prepayment
premium, yield maintenance payment or percentage premium in connection with a
principal prepayment (and shall not include late fees or default interest
provisions).
"MONTHLY CERTIFICATEHOLDERS REPORT" means a report provided pursuant to
Section 5.4 by the Paying Agent monthly as of the related Determination Date
generally in the form and substance of Exhibit M, which sets forth, to the
extent applicable: (i) the amount, if any, of such distributions to the holders
of each Class of Principal Balance Certificates applied to reduce the respective
Certificate Balances thereof; (ii) the amount of such distribution to holders of
each Class of Certificates allocable to (A) interest accrued at the respective
Pass-Through Rates, less any Net Aggregate Prepayment Interest Shortfalls and
(B) Prepayment Premiums; (iii) the number of outstanding Mortgage Loans and the
aggregate Principal Balance and Scheduled Principal Balance of the Mortgage
Loans at the close of business on such Determination Date; (iv) the number and
aggregate Scheduled Principal Balance of Mortgage Loans (A) delinquent 30-59
days, (B) delinquent 60-89 days, (C) delinquent 90 or more days, (D) as to which
foreclosure proceedings have been commenced, or (E) as to which bankruptcy
proceedings have been commenced; (v) with respect to any REO Property included
in the Trust, the Principal Balance of the related Mortgage Loan as of the date
of acquisition of the REO Property and the Scheduled Principal Balance thereof;
(vi) as of the related Determination Date (A) as to any REO Property sold during
the related Collection Period, the date of the related determination by the
Special Servicer that it has recovered all payments which it expects to be
finally recoverable and the amount of the proceeds of such sale deposited into
the Certificate Account, and (B) the aggregate amount of other revenues
collected by the Special Servicer with respect to each REO Property during the
related Collection Period and credited to the Certificate Account, in each case
identifying such REO Property by the loan number of the related Mortgage Loan;
(vii) the Aggregate Certificate Balance or Notional Amount, as the case may be,
of each Class of Certificates before and after giving effect to the distribution
made on such Distribution Date; (viii) the aggregate amount of Principal
Prepayments made during the related Collection Period; (ix) the Pass-Through
Rate applicable to each Class of Certificates for such Distribution Date; (x)
the aggregate amount of the Master Servicing Fee, the Primary Servicing Fee, the
Special Servicing Fee and the Excess Servicing Fees; (xi) the amount of Unpaid
Interest and Realized Losses, if any, incurred with respect to the Mortgage
Loans, including a breakout by type of such Realized Losses; (xii) the aggregate
amount of Servicing Advances and P&I Advances outstanding separately stated that
have been made by the Master Servicer, the Trustee and the Fiscal Agent; and
(xiii) the amount of any Appraisal Reductions effected during the related
Collection Period on a loan-by-loan basis and the total Appraisal Reductions in
effect as
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of such Distribution Date. In the case of information furnished pursuant to
subclauses (i), (ii) and (xi) above, the amounts shall be expressed in the
aggregate and as a dollar amount per $1,000 of original principal amount of the
Certificates for all Certificates of each applicable Class.
"MOODY'S" means Xxxxx'x Investors Service Inc. or its successor in
interest.
"MORTGAGE" means the mortgage, deed of trust or other instrument
securing a Mortgage Note.
"MORTGAGE FILE" means the mortgage documents listed below:
(i) the original Mortgage Note bearing all intervening endorsements,
endorsed in blank or endorsed "Pay to the order of LaSalle Bank National
Association, as Trustee for Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2002-TOP6, without
recourse, representation or warranty" or if the original Mortgage Note is not
included therein, then a lost note affidavit with a copy of the Mortgage Note
attached thereto;
(ii) the original Mortgage, with evidence of recording thereon, and, if
the Mortgage was executed pursuant to a power of attorney, a certified true copy
of the power of attorney certified by the public recorder's office, with
evidence of recording thereon (if recording is customary in the jurisdiction in
which such power of attorney was executed) or certified by a title insurance
company or escrow company to be a true copy thereof; provided that if such
original Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 45th day following the Closing Date because of a delay caused by
the public recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, the Depositor shall
deliver or cause to be delivered to the Trustee a true and correct copy of such
Mortgage, together with (A) in the case of a delay caused by the public
recording office, an Officer's Certificate of the applicable Seller stating that
such original Mortgage has been sent to the appropriate public recording
official for recordation or (B) in the case of an original Mortgage that has
been lost after recordation, a certification by the appropriate county recording
office where such Mortgage is recorded that such copy is a true and complete
copy of the original recorded Mortgage;
(iii) the originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
evidence of recording thereon (which are reflected in the Mortgage Loan
Schedule), or if such original modification, consolidation and extension
agreements have been delivered to the appropriate recording office for
recordation and either have not yet been returned on or prior to the 45th day
following the Closing Date with evidence of recordation thereon or have been
lost after recordation, true copies of such modifications, consolidations and
extensions certified by the applicable Seller together with (A) in the case of a
delay caused by the public recording office, an Officer's Certificate of the
applicable Seller stating that such original modification, consolidation or
extension agreement has been dispatched or sent to the appropriate public
recording official for recordation or (B) in the case of an original
modification, consolidation or extension agreement that has been lost after
recordation, a certification by the appropriate county recording office
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where such document is recorded that such copy is a true and complete copy of
the original recorded modification, consolidation or extension agreement, and
the originals of all assumption agreements, if any;
(iv) an original Assignment of Mortgage for each Mortgage Loan, in form
and substance acceptable for recording, signed by the holder of record in blank
or in favor of "LaSalle Bank National Association, as Trustee for Bear Xxxxxxx
Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2002-TOP6;"
(v) originals of all intervening assignments of Mortgage, if any, with
evidence of recording thereon or, if such original assignments of Mortgage have
been delivered to the appropriate recorder's office for recordation, certified
true copies of such assignments of Mortgage certified by the applicable Seller,
or in the case of an original blanket intervening assignment of Mortgage
retained by the applicable Seller, a copy thereof certified by the applicable
Seller or, if any original intervening assignment of Mortgage has not yet been
returned on or prior to the 45th day following the Closing Date from the
applicable recording office or has been lost, a true and correct copy thereof,
together with (A) in the case of a delay caused by the public recording office,
an Officer's Certificate of the applicable Seller stating that such original
intervening assignment of Mortgage has been sent to the appropriate public
recording official for recordation or (B) in the case of an original intervening
assignment of Mortgage that has been lost after recordation, a certification by
the appropriate county recording office where such assignment is recorded that
such copy is a true and complete copy of the original recorded intervening
assignment of Mortgage;
(vi) if the related Assignment of Leases is separate from the Mortgage,
the original of such Assignment of Leases with evidence of recording thereon or,
if such Assignment of Leases has not been returned on or prior to the 45th day
following the Closing Date from the applicable public recording office, a copy
of such Assignment of Leases certified by the applicable Seller to be a true and
complete copy of the original Assignment of Leases submitted for recording,
together with (A) an original of each assignment of such Assignment of Leases
with evidence of recording thereon and showing a complete recorded chain of
assignment from the named assignee to the holder of record, and if any such
assignment of such Assignment of Leases has not been returned from the
applicable public recording office, a copy of such assignment certified by the
applicable Seller to be a true and complete copy of the original assignment
submitted for recording, and (B) an original assignment of such Assignment of
Leases, in recordable form, signed by the holder of record in favor of "LaSalle
Bank National Association, as Trustee for Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2002-TOP6," which assignment may be effected in the related Assignment of
Mortgage;
(vii) the original of each guaranty, if any, constituting additional
security for the repayment of such Mortgage Loan;
(viii) the original Title Insurance Policy or in the event such
original Title Insurance Policy has not been issued, an original binder or
actual title commitment or a copy thereof certified by the title company with
the original Title Insurance Policy to follow within
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180 days of the Closing Date or a preliminary title report with an original
Title Insurance Policy to follow within 180 days of the Closing Date;
(ix) (A) UCC financing statements (together with all assignments
thereof) and (B) UCC-2 or UCC-3 financing statements to the Trustee executed and
delivered in connection with the Mortgage Loan;
(x) copies of the related ground lease(s), if any, related to any
Mortgage Loan where the Mortgagor is the lessee under such ground lease and
there is a lien in favor of the mortgagee in such lease;
(xi) copies of any loan agreements, lock-box agreements and
intercreditor agreements (including, without limitation, the Intercreditor
Agreement, and a copy (that is, not the original) of the mortgage note
evidencing the related B Note), if any, related to any Mortgage Loan;
(xii) either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, which shall be
assigned and delivered to the Trustee on behalf of the Trust with a copy to be
held by the Primary Servicer (or the Master Servicer), and applied, drawn,
reduced or released in accordance with documents evidencing or securing the
applicable Mortgage Loan, this Agreement and the applicable Primary Servicing
Agreement or (B) the original of each letter of credit, if any, constituting
additional collateral for such Mortgage Loan, which shall be held by the Primary
Servicer (or the Master Servicer) on behalf of the Trustee, with a copy to be
held by the Trustee, and applied, drawn, reduced or released in accordance with
documents evidencing or securing the applicable Mortgage Loan, this Agreement
and the applicable Primary Servicing Agreement (it being understood that each
Seller has agreed (a) that the proceeds of such letter of credit belong to the
Trust, (b) to notify, on or before the Closing Date, the bank issuing the letter
of credit that the letter of credit and the proceeds thereof belong to the
Trust, and to use reasonable efforts to obtain within 30 days (but in any event
to obtain within 90 days) following the Closing Date, an acknowledgement thereof
by the bank (with a copy of such acknowledgement to be sent to the Trustee) and
(c) to indemnify the Trust for any liabilities, charges, costs, fees or other
expenses accruing from the failure of the Seller to assign the letter of credit
hereunder). In the case of clause (B) above, the Primary Servicer (and the
Master Servicer) acknowledges that any letter of credit held by it shall be held
in its capacity as agent of the Trust, and if a Primary Servicer (or Master
Servicer) sells its rights to service the applicable Mortgage Loan, the Primary
Servicer (or Master Servicer) will assign the applicable letter of credit to the
Trust or at the direction of the Special Servicer to such party as the Special
Servicer may instruct, in each case, at the expense of the Primary Servicer (or
Master Servicer). The Primary Servicer (or Master Servicer) shall indemnify the
Trust for any loss caused by the ineffectiveness of such assignment;
(xiii) the original environmental indemnity agreement, if any, related
to any Mortgage Loan;
(xiv) third-party management agreements for hotels and mortgaged
properties securing Mortgage Loans with a Cut-Off Date Principal Balance equal
to or greater than $20,000,000;
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(xv) any Environmental Insurance Policy; and
(xvi) any affidavit and indemnification agreement.
"MORTGAGE LOAN" means a Mortgage Note secured by a Mortgage, and all
amendments and modifications thereof, identified on the Mortgage Loan Schedule,
as amended from time to time, and conveyed, transferred, sold, assigned to or
deposited with the Trustee pursuant to Section 2.1 or Section 2.3, and Mortgage
Loan shall also include any Defeasance Loan and with respect to any A/B Mortgage
Loan, shall include the A Note (but shall not include the related B Note).
"MORTGAGE LOAN PURCHASE AGREEMENT" means Mortgage Loan Purchase
Agreement I, Mortgage Loan Purchase Agreement II, Mortgage Loan Purchase
Agreement III, Mortgage Loan Purchase Agreement IV or Mortgage Loan Purchase
Agreement V, as the case may be.
"MORTGAGE LOAN PURCHASE AGREEMENT I" Reserved.
"MORTGAGE LOAN PURCHASE AGREEMENT II" means that certain Mortgage Loan
Purchase Agreement between Xxxxx Fargo and the Depositor dated as of March 8,
2002 with respect to the Xxxxx Fargo Loans, a form of which is attached hereto
as Exhibit K-2.
"MORTGAGE LOAN PURCHASE AGREEMENT III" means that certain Mortgage Loan
Purchase Agreement between Principal and the Depositor dated as of March 8, 2002
with respect to the Principal Loans, a form of which is attached hereto as
Exhibit K-3.
"MORTGAGE LOAN PURCHASE AGREEMENT IV" means that certain Mortgage Loan
Purchase Agreement between BSF and the Depositor dated as of March 8, 2002 with
respect to the BSF Loans, a form of which is attached hereto as Exhibit K-4.
"MORTGAGE LOAN PURCHASE AGREEMENT V" means that certain Mortgage Loan
Purchase Agreement between MSDWMC and the Depositor dated as of March 8, 2002
with respect to the MSDWMC Loans, a form of which is attached hereto as Exhibit
K-5.
"MORTGAGE LOAN SCHEDULE" or "LOAN SCHEDULE" means collectively the
schedule attached hereto as Schedule II, which identifies each Xxxxx Fargo Loan,
the schedule attached hereto as Schedule III, which identifies each Principal
Loan, the schedule attached hereto as Schedule IV, which identifies each BSF
Loan and the schedule attached hereto as Schedule V, which identifies each
MSDWMC Loan as such schedules may be amended from time to time pursuant to
Section 2.3.
"MORTGAGE NOTE" means the note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"MORTGAGE RATE" means, for a given Mortgage Loan or B Note, the per
annum rate at which interest accrues on such Mortgage Loan or B Note.
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"MORTGAGED PROPERTY" means the real property, together with
improvements thereto, securing the indebtedness of the Mortgagor under the
related Mortgage Loan and, in the case of an A/B Mortgage Loan, the related B
Note.
"MORTGAGEE" means, with respect to any Mortgage as of any date of
determination, the mortgagee named therein as of such date.
"MORTGAGOR" means the obligor on a Mortgage Note.
"MSDWMC" has the meaning assigned in the Preliminary Statement hereto.
"MSDWMC LOANS" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement V and shown on
Schedule V hereto.
"NET AGGREGATE PREPAYMENT INTEREST SHORTFALL" means for any
Distribution Date, with respect to all Mortgage Loans which are not Specially
Serviced Mortgage Loans, the excess, if any, of aggregate Prepayment Interest
Shortfalls for such Mortgage Loans over the sum of (A) the Compensating Interest
to be paid by the Master Servicer on such Distribution Date and (B) the
aggregate Prepayment Interest Excesses for such Collection Period for all
Mortgage Loans which are not Specially Serviced Mortgage Loans.
"NEW LEASE" means any lease of any REO Property entered into on behalf
of the Trust, including any lease renewed or extended on behalf of the Trust if
the Trust has the right to renegotiate the terms of such lease.
"1933 ACT" means the Securities Act of 1933, as amended.
"1934 ACT" means the Securities Exchange Act of 1934, as amended.
"NONDISQUALIFICATION OPINION" means a written Opinion of Counsel to the
effect that a contemplated action will neither cause any REMIC Pool to fail to
qualify as a REMIC at any time that any Certificates are outstanding nor cause a
"prohibited transaction," "prohibited contribution" or any other tax (other than
a tax on "net income from foreclosure property" permitted to be incurred under
this Agreement) to be imposed on any REMIC Pool or the Trust.
"NONECONOMIC RESIDUAL INTEREST" means a residual interest that is a
"noneconomic residual interest" within the meaning of Treasury Regulation
Section 1.860E-1(c).
"NON-INVESTMENT GRADE CERTIFICATES" means each Class of Certificates
that, at the time of transfer, is not rated in one of the four highest generic
rating categories by at least one of S&P or Moody's.
"NONRECOVERABLE ADVANCE" means the portion of any Advance (including
interest accrued thereon at the Advance Rate) previously made or proposed to be
made by the Master Servicer, the Trustee or the Fiscal Agent that, in its
respective sole discretion, exercised in good faith and, with respect to the
Master Servicer, in accordance with the Servicing Standard, will not be or, in
the case of a current delinquency, would not be, ultimately recoverable, from
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Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or Purchase
Proceeds (or from any other collections) with respect to the related Mortgage
Loan (in the case of P&I Advances and Servicing Advances) or B Note (in the case
of Servicing Advances) or REO Property (in the case of P&I Advances and
Servicing Advances), as evidenced by an Officer's Certificate delivered pursuant
to Section 4.4. Such Officer's Certificate shall be delivered to the Trustee
(upon which the Trustee may conclusively rely) or to the Depositor (if the
Trustee or the Fiscal Agent is delivering such Officer's Certificate) and (in
either case) to the Special Servicer and the Paying Agent in the time periods as
specified in Section 4.4 and shall include the information and reports set forth
in Section 4.4. In determining whether an Advance with respect to any Mortgage
Loan (in the case of P&I Advances and Servicing Advances) or B Note (in the case
of Servicing Advances) will be recoverable, the Master Servicer, the Trustee or
the Fiscal Agent, as applicable, shall take into account amounts that may be
realized on the related Mortgaged Property in its "as is" or then current
condition and occupancy. Absent bad faith, the Master Servicer's determination
as to the recoverability of any Advance shall be conclusive and binding on the
Certificateholders and, in the case of any B Note, the holder of the B Note and
may, in all cases, be relied on by the Trustee and the Fiscal Agent.
"NON-REGISTERED CERTIFICATE" means unless and until registered under
the Securities Act, any Class X, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N or Residual Certificate.
"NOTIONAL AMOUNT" means, as of any date of determination: (i) with
respect to all of the Class X-1 Certificates as a Class, the Class X-1 Notional
Amount as of such date of determination; (ii) with respect to any Class X-1
Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X-1 Notional Amount as of such date of determination;
(iii) with respect to all of the Class X-2 Certificates as a Class, the Class
X-2 Notional Amount as of such date of determination and (iv) with respect to
any Class X-2 Certificate, the product of the Percentage Interest evidenced by
such Certificate and the Class X-2 Notional Amount as of such date of
determination.
"OFFICER'S CERTIFICATE" means (v) in the case of the Depositor, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Senior Vice President, Vice President or
Assistant Vice President, and by one or more of the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Depositor, or (w) in
the case of the Master Servicer and the Special Servicer, any of the officers
referred to above or an employee thereof designated as a Servicing Officer or
Special Servicing Officer pursuant to this Agreement, (x) in the case of the
Trustee or the Fiscal Agent, a certificate signed by a Responsible Officer, (y)
in the case of a Seller, a certificate signed by one or more of the Chairman of
the Board, any Vice Chairman, the President, or any Senior Vice President, Vice
President or Assistant Vice President and (z) in the case of the Paying Agent, a
certificate signed by a Responsible Officer, each with specific responsibilities
for the matters contemplated by this Agreement.
"OPERATING ADVISER" shall have the meaning specified in Section
9.37(a).
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"OPERATING STATEMENT ANALYSIS REPORT" means a report which is one
element of the MBA/CMSA Methodology for Analyzing and Reporting Property Income
Statements and which is substantially in the form of Exhibit N.
"OPINION OF COUNSEL" means a written opinion of counsel addressed to
the Trustee and the Paying Agent, reasonably acceptable in form and substance to
the Trustee and the Paying Agent, and who is not in-house counsel to the party
required to deliver such opinion but who, in the good faith judgment of the
Trustee and the Paying Agent, is Independent outside counsel knowledgeable of
the issues occurring in the practice of securitization with respect to any such
opinion of counsel concerning the taxation, or status as a REMIC for tax
purposes, of the Trust or any REMIC Pool.
"OWNERSHIP INTEREST" means, as to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I ADVANCE" shall mean, (i) with respect to any Mortgage Loan or
Specially Serviced Mortgage Loan as to which all or a portion of the Scheduled
Payment (other than a Balloon Payment) due during the related Collection Period
was not received by the Master Servicer as of the related Determination Date
(subject to Section 5.1(h)), the portion of such Scheduled Payment not received;
(ii) with respect to any Balloon Mortgage Loan (including any REO Property as to
which the related Mortgage Loan provided for a Balloon Payment) as to which a
Balloon Payment was due during or prior to the related Collection Period but was
delinquent, in whole or in part, as of the related Determination Date, an amount
equal to the excess, if any, of the Assumed Scheduled Payment for such Balloon
Mortgage Loan for the related Collection Period, over any Late Collections
received in respect of such Balloon Payment during such Collection Period; and
(iii) with respect to each REO Property, an amount equal to the excess, if any,
of the Assumed Scheduled Payment for the Mortgage Loan to such REO Property
during the related Collection Period, over remittances of REO Income to the
Master Servicer by the Special Servicer, reduced by any amounts required to be
paid as taxes on such REO Income (including taxes imposed pursuant to Section
860G(c) of the Code); provided, however, that the interest portion of any
Scheduled Payment or Assumed Scheduled Payment shall be advanced at a per annum
rate equal to the sum of the REMIC I Net Mortgage Rate relating to such Mortgage
Loan or REO Mortgage Loan and the Trustee Fee Rate, such that the Scheduled
Payment or Assumed Scheduled Payment to be advanced as a P&I Advance shall be
net of the Master Servicing Fee, the Excess Servicing Fee and the Primary
Servicing Fees; and provided, further, that the Scheduled Payment or Assumed
Scheduled Payment for any Mortgage Loan which has been modified shall be
calculated based on its terms as modified and provided, further, that the
interest component of any P&I Advance with respect to a Mortgage Loan as to
which there has been an Appraisal Reduction will be an amount equal to the
product of (i) the amount of interest required to be advanced without giving
effect to this proviso and (ii) a fraction, the numerator of which is the
Principal Balance of such Mortgage Loan as of the immediately preceding
Determination Date less any Appraisal Reduction applicable to such Mortgage Loan
and the denominator of which is the Principal Balance of such Mortgage Loan as
of such Determination Date. All P&I Advances for any Mortgage Loans that have
been modified shall be calculated on the basis of their terms as modified.
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"P&I ADVANCE AMOUNT" means, with respect to any Mortgage Loan or REO
Property, the amount of the P&I Advance for each Mortgage Loan computed for any
Distribution Date.
"PARTICIPANT" means a broker, dealer, bank, other financial institution
or other Person for whom the Clearing Agency effects book-entry transfers and
pledges of securities deposited with the Clearing Agency.
"PASS-THROUGH RATE" or "PASS-THROUGH RATES" means with respect to any
Class of REMIC I Regular Interests, REMIC II Regular Interests or REMIC Regular
Certificates, other than the Class E, Class F and Class X Certificates, for the
first Distribution Date, the rate set forth in the Preliminary Statement hereto.
For any Distribution Date occurring thereafter (and with respect to the Class E,
Class F and Class X Certificates, for each Distribution Date), the Pass-Through
Rates for (i) the REMIC I Regular Interests shall equal the REMIC I Net Mortgage
Rate on the related Mortgage Loan for such Distribution Date, (ii) the REMIC II
Regular Interests shall equal the Weighted Average REMIC I Net Mortgage Rate for
such Distribution Date, (iii) the Class A-1 and Class A-2, the fixed rate
corresponding to such Class set forth in the Preliminary Statement hereto, (iv)
the Class B Certificates, the lesser of 6.62% per annum and the Weighted Average
REMIC I Net Mortgage Rate for such Distribution Date, (v) the Class C
Certificates, the lesser of 6.75% per annum and the Weighted Average REMIC I Net
Mortgage Rate for such Distribution Date, (vi) the Class D Certificates shall
equal the lesser of 6.88% and the Weighted Average REMIC I Net Mortgage Rate for
such Distribution Date, (vii) the Class E Certificates shall equal the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date, (viii) the Class F
Certificates shall equal the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, (ix) the Class G, Class H, Class J, Class K, Class L, Class M
and Class N Certificates shall equal the lesser of (A) the fixed rate
corresponding to such Class set forth in the Preliminary Statement hereto and
(B) the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date,
(x) the Class X-1 Certificates, the per annum rate equal to the product of the
Accrued Certificate Interest thereon for such Distribution Date and 12, divided
by the Class X-1 Notional Amount and (xi) the Class X-2 Certificates, the per
annum rate equal to the product of the Accrued Certificate Interest thereon for
such Distribution Date and 12, divided by the Class X-2 Notional Amount. The
Pass-Through Rate for the Class A-1A Component and the Class A-1B Component
shall equal the Pass-Through Rate of the Class A-1 Certificates. The
Pass-Through Rate for the Class A-2A Component and the Class A-2B Component
shall equal the Pass-Through Rate of the Class A-2 Certificates.
"PAYING AGENT" means Xxxxx Fargo Bank Minnesota, National Association
and any successor or assign, as provided herein. The Luxembourg Paying Agent
shall not be the Paying Agent and the duties of the Luxembourg Paying Agent
shall be distinct from the duties of the Paying Agent.
"PAYING AGENT FEE" means the portion of the Trustee Fee payable to the
Paying Agent in an amount agreed to between the Trustee and the Paying Agent.
"PERCENTAGE INTEREST" means with respect to each Class of Certificates
other than the Residual Certificates, the fraction of such Class evidenced by
such Certificate, expressed as a percentage (carried to four decimal places and
rounded, if necessary), the numerator of which is
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the Certificate Balance or Notional Amount, as applicable, represented by such
Certificate determined as of the Closing Date (as stated on the face of such
Certificate) and the denominator of which is the Aggregate Certificate Balance
or Notional Amount, as applicable, of all of the Certificates of such Class
determined as of the Closing Date. With respect to each Residual Certificate,
the percentage interest in distributions (if any) to be made with respect to the
relevant Class, as stated on the face of such Certificate.
"PERMITTED TRANSFEREE" means any Transferee other than a Disqualified
Organization.
"PERSON" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PHASE I ENVIRONMENTAL REPORT" means a report by an Independent Person
who regularly conducts environmental site assessments in accordance with then
current standards imposed by institutional commercial mortgage lenders and who
has a reasonable amount of experience conducting such assessments.
"PLACEMENT AGENT" means Bear, Xxxxxxx & Co. Inc., Xxxxxx Xxxxxxx & Co.
Incorporated, Xxxxxxx, Sachs & Co. and Xxxxx Fargo Brokerage Services, LLC or
its respective successor in interest.
"PLAN" has the meaning set forth in Section 3.3(d).
"PLAN ASSET REGULATIONS" means the Department of Labor regulations set
forth in 29 C.F.R.ss.2510.3-101.
"PRELIMINARY PROSPECTUS SUPPLEMENT" has the meaning set forth in the
Preliminary Statement hereto.
"PREPAYMENT INTEREST EXCESS" means for any Distribution Date and the
related Collection Period, during which a full or partial Principal Prepayment
(including payment of a Balloon Payment other than in connection with the
foreclosure or liquidation of a Mortgage Loan) is made after the Due Date for
such Mortgage Loan through and including the last day of the Collection Period,
the amount of interest that accrues on the amount of such Principal Prepayment
from such Due Date to the date such payment was made, plus (if made) any payment
by the Mortgagor of interest that would have accrued to the next succeeding Due
Date (net of the Master Servicing Fee, the Primary Servicing Fees, the Excess
Servicing Fees, the Special Servicing Fee and the Trustee Fee), to the extent
collected.
"PREPAYMENT INTEREST SHORTFALL" means, with respect to any Distribution
Date, a shortfall in the collection of a full month's interest on any Mortgage
Loan, by reason of a full or partial Principal Prepayment (including payment of
a Balloon Payment other than in connection with the foreclosure or liquidation
of a Mortgage Loan) made during any Collection Period prior to the Due Date for
such Mortgage Loan in such Collection Period (including any shortfall resulting
from such a payment during the grace period relating to such Due Date). The
amount of any Prepayment Interest Shortfall shall equal the excess of (A) the
aggregate amount of
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interest which would have accrued on the Scheduled Principal Balance of such
Mortgage Loan if the Mortgage Loan had paid on its Due Date and such Principal
Prepayment or Balloon Payment had not been made (net of the Master Servicing
Fee, the Primary Servicing Fees, the Excess Servicing Fees, the Special
Servicing Fee and the Trustee Fee) over (B) the aggregate interest that did so
accrue through the date such payment was made (net of such fees).
"PREPAYMENT PREMIUM" means, with respect to any Mortgage Loan or B Note
for any Distribution Date, the prepayment premiums, yield maintenance payments
or percentage premiums, if any, received during the related Collection Period in
connection with Principal Prepayments on such Mortgage Loan or B Note.
"PRIMARY COLLATERAL" means the portion of the Mortgaged Property
securing the Repurchased Loan or Cross-Collateralized Loan, as applicable, that
is encumbered by a first mortgage lien.
"PRIMARY SERVICER" means Principal Capital Management, LLC and its
respective permitted successors and assigns.
"PRIMARY SERVICING AGREEMENT" means, with respect to the Primary
Servicer, the agreement between such Primary Servicer and the Master Servicer,
dated as of March 1, 2002, a form of which is attached hereto as Exhibit G,
under which such Primary Servicer services the Mortgage Loans set forth on the
schedule attached thereto.
"PRIMARY SERVICING FEE" means, for each calendar month, as to each
Mortgage Loan, the applicable Primary Servicing Fee Rate multiplied by the
Scheduled Principal Balance of such Mortgage Loan immediately before the Due
Date occurring in such month, but prorated for the number of days during the
calendar month for such Mortgage Loan for which interest actually accrues on
such Mortgage Loan and payable only from collections on such Mortgage Loan.
"PRIMARY SERVICING FEE RATE" means, the monthly fee payable to the
applicable Primary Servicer (or the Master Servicer, as applicable) based on the
per annum rate specified on the Mortgage Loan Schedule, as more specifically
described, in the case of the Primary Servicer, in the applicable Primary
Servicing Agreement (determined in the same manner (other than the rate of
accrual) as the applicable Mortgage Rate is determined for such Mortgage Loan
for such month).
"PRINCIPAL" has the meaning assigned in the Preliminary Statement
hereto.
"PRINCIPAL BALANCE" means, with respect to any Mortgage Loan, B Note or
REO Mortgage Loan, for purposes of performing calculations with respect to any
Distribution Date, the principal balance of such Mortgage Loan, B Note or the
related REO Mortgage Loan outstanding as of the Cut-Off Date after taking into
account all principal and interest payments made or due on or prior to the
Cut-Off Date (assuming, for any Mortgage Loan or B Note with a Due Date in March
2002 that is not March 1, 2002, that principal and interest payments for such
month were paid on March 1, 2002), reduced (to not less than zero) by (i) any
payments or other collections of amounts allocable to principal on such Mortgage
Loan, B Note or related REO Mortgage Loan that have been collected or received
during any preceding Collection Period,
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other than any Scheduled Payments due in any subsequent Collection Period, and
(ii) the principal portion of any Realized Loss incurred in respect of such
Mortgage Loan or related REO Mortgage Loan during any related Collection Period.
"PRINCIPAL BALANCE CERTIFICATES" means, collectively, the Class A-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 and Class N Certificates.
"PRINCIPAL DISTRIBUTION AMOUNT" means, on any Distribution Date, the
sum of the following amounts: (i) the principal portion of all Scheduled
Payments (other than the principal portion of Balloon Payments) and any Assumed
Scheduled Payments, in each case, to the extent received or advanced, as the
case may be, in respect of the Mortgage Loans and any REO Mortgage Loans (but
not in respect of any B Note or its successor REO Mortgage Loan) for their
respective Due Dates occurring during the related Collection Period; (ii) all
payments (including Principal Prepayments and the principal portion of Balloon
Payments but not in respect of any B Note or its respective successor REO
Mortgage Loan) and any other collections (including Liquidation Proceeds (other
than the portion thereof, if any, constituting Excess Liquidation Proceeds),
Condemnation Proceeds, Insurance Proceeds, Purchase Proceeds and REO Income)
received on or in respect of the Mortgage Loans during the related Collection
Period and that were identified and applied by the Master Servicer as recoveries
of principal thereof.
"PRINCIPAL LOANS" means, collectively those Mortgage Loans sold to the
Depositor pursuant to Mortgage Loan Purchase Agreement III and shown on Schedule
III hereto.
"PRINCIPAL PREPAYMENT" means any voluntary or involuntary payment or
collection of principal on a Mortgage Loan or B Note which is received or
recovered in advance of its scheduled Due Date and applied to reduce the
Principal Balance of the Mortgage Loan or B Note in advance of its scheduled Due
Date, including, without limitation, all proceeds, to the extent allocable to
principal, received from the payment of cash in connection with a substitution
shortfall pursuant to Section 2.3; provided, that the pledge by a Mortgagor of
Defeasance Collateral with respect to a Defeasance Loan shall not be deemed to
be a Principal Prepayment.
"PRIVATE PLACEMENT MEMORANDUM" means the Private Placement Memorandum
dated March 8, 2002, pursuant to which the Class X-1, Class X-2, Class D, Class
E, Class F, Class G, Class H, Class J, Class K, Class L, Class M and Class N
Certificates will be offered for sale.
"PROSPECTUS" has the meaning set forth in the Preliminary Statement
hereto.
"PURCHASE PRICE" means, with respect to the purchase by the Seller or
liquidation by the Special Servicer of (i) a Mortgage Loan or an REO Mortgage
Loan pursuant to Article II of this Agreement, (ii) an REO Mortgage Loan
pursuant to Section 9.15 or (iii) a Mortgage Loan pursuant to Section 9.36 under
the circumstances described therein, a price equal to the sum of (A) 100% of the
unpaid Principal Balance of such Mortgage Loan (or deemed Principal Balance, in
the case of an REO Mortgage Loan), plus (B) accrued but unpaid interest thereon
calculated at the Mortgage Rate to, but not including, the Due Date in the
Collection Period in which such
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purchase or liquidation occurs, plus (C) the amount of any expenses related to
such Mortgage Loan and/or (if applicable) its related B Note or the related REO
Property (including any Servicing Advances and Advance Interest (which have not
been paid by the Mortgagor or out of Late Fees or default interest paid by the
related Mortgagor on the related Mortgage Loan and/or (if applicable) its
related B Note) related to such Mortgage Loan and/or (if applicable) its related
B Note and all Special Servicing Fees and Liquidation Fees paid with respect to
the Mortgage Loan and/or (if applicable) its related B Note) that are
reimbursable or payable to the Master Servicer, the Special Servicer, the Paying
Agent, the Trustee or the Fiscal Agent, plus (D) if such Mortgage Loan or REO
Mortgage Loan is being repurchased or substituted for by a Seller pursuant to
the related Mortgage Loan Purchase Agreement, all expenses reasonably incurred
or to be incurred by the Primary Servicer, the Master Servicer, the Special
Servicer, the Depositor, the Paying Agent or the Trustee in respect of the
Material Breach or Material Document Defect giving rise to the repurchase or
substitution obligation (and that are not otherwise included in (C) above).
"PURCHASE PROCEEDS" means any cash amounts received by the Master
Servicer in connection with: (i) the repurchase of a Mortgage Loan or an REO
Mortgage Loan by a Seller pursuant to Section 2.3 or (ii) the purchase of the
Mortgage Loans and REO Properties by the Depositor, the Master Servicer, the
Special Servicer or the holders of the Class R-I Certificates pursuant to
Section 10.1(b).
"QUALIFIED BIDDER" means (A) as used in section 8.29(c), a Person
qualified to act as successor Master Servicer hereunder pursuant to Section
8.22(b) (including the requirement set forth in Section 8.22(b) that Rating
Agency Confirmation shall have been obtained from each Rating Agency with
respect to such Person) and (B) as used in Section 9.31(c), any Person qualified
to act as successor Special Servicer hereunder pursuant to Section 9.21(b)
(including the requirement set forth in Section 9.21(b) that Rating Agency
Confirmation shall have been obtained form each Rating Agency with respect to
such Person).
"QUALIFIED INSTITUTIONAL BUYER" means a qualified institutional buyer
qualifying pursuant to Rule 144A.
"QUALIFIED INSURER" means, (i) with respect to any Mortgage Loan or B
Note, an insurance company duly qualified as such under the laws of the state in
which the related Mortgaged Property is located, duly authorized and licensed in
such state to transact the applicable insurance business and to write the
insurance, but in no event rated lower than "A" by S&P, or if not so rated by
S&P, then S&P has issued a Rating Agency Confirmation, and "A2" by Xxxxx'x if
rated by Xxxxx'x or if not rated by Xxxxx'x, then Xxxxx'x has issued a Rating
Agency Confirmation, and (ii) with respect to the Servicer Errors and Omissions
Insurance Policy or Servicer Fidelity Bond an insurance company that has a claim
paying ability no lower than "A" by S&P if rated by S&P, or if not rated by S&P,
then S&P has issued a Rating Agency Confirmation, and "A2" by Xxxxx'x if rated
by Xxxxx'x or if not rated by Xxxxx'x, then Xxxxx'x has issued a Rating Agency
Confirmation, or (iii) in either case, a company not satisfying clause (i) or
(ii) but with respect to which Rating Agency Confirmation is obtained.
"Qualified Insurer" shall also mean any entity that satisfies all of the
criteria, other than the ratings criteria, set forth in one of the foregoing
clauses and whose obligations under the related
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insurance policy are guaranteed or backed by an entity that satisfies the
ratings criteria set forth in such clause (construed as if such entity were an
insurance company referred to therein).
"QUALIFYING SUBSTITUTE MORTGAGE LOAN" means, in the case of a Mortgage
Loan substituted for a Deleted Mortgage Loan, a Mortgage Loan which, on the date
of substitution, (i) has an outstanding principal balance, after deduction of
the principal portion of the Scheduled Payment due in the month of substitution,
not in excess of the Principal Balance of the Deleted Mortgage Loan; provided,
however, that, to the extent that the principal balance of such Mortgage Loan is
less than the Principal Balance of the Deleted Mortgage Loan, then such
differential in principal amount, together with interest thereon at the Mortgage
Rate on the related Mortgage Loan from the date as to which interest was last
paid through the last day of the month in which such substitution occurs, shall
be paid by the party effecting such substitution to the Master Servicer for
deposit into the Certificate Account, and shall be treated as a Principal
Prepayment hereunder; (ii) is accruing interest at a rate of interest at least
equal to that of the Deleted Mortgage Loan; (iii) has a remaining term to stated
maturity not greater than, and not more than two years less than, that of the
Deleted Mortgage Loan; (iv) has an original Loan-to-Value Ratio not higher than
that of the Deleted Mortgage Loan and a current Loan-to-Value Ratio (equal to
the outstanding principal balance on the date of substitution divided by its
current Appraised Value) not higher than the current Loan-to-Value Ratio of the
Deleted Mortgage Loan and has a current Debt Service Coverage Ratio equal to or
greater than the current Debt Service Coverage Ratio of the Deleted Mortgage
Loan; (v) will comply with all of the representations and warranties relating to
Mortgage Loans set forth herein, as of the date of substitution; (vi) has a
Phase I Environmental Report relating to the related Mortgaged Property in its
Mortgage Files and such Phase I Environmental Report does not, in the good faith
reasonable judgment of the Special Servicer, consistent with the Servicing
Standard raise material issues that have not been adequately addressed; (vii)
has an engineering report relating to the related Mortgaged Property in its
Mortgage Files and such engineering report does not, in the good faith
reasonable judgment of the Special Servicer, consistent with the Servicing
Standard raise material issues that have not been adequately addressed; and
(viii) as to which the Trustee and the Paying Agent have received an Opinion of
Counsel, at the related Seller's expense, that such Mortgage Loan is a
"qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the
Code; provided that no Mortgage Loan may have a Maturity Date after the date
three years prior to the Rated Final Distribution Date, and provided, further,
that no such Mortgage Loan shall be substituted for a Deleted Mortgage Loan
unless Rating Agency Confirmation is obtained, and provided, further that no
such Mortgage Loan shall be substituted for a Deleted Mortgage Loan unless the
Operating Adviser shall have approved of such substitution (provided, however,
that such approval of the Operating Adviser may not be unreasonably withheld).
In the event that either one mortgage loan is substituted for more than one
Deleted Mortgage Loan or more than one mortgage loan is substituted for one or
more Deleted Mortgage Loans, then (A) the Principal Balance referred to in
clause (i) above shall be determined on the basis of aggregate Principal
Balances and (B) the rates referred to in clause (ii) above and the remaining
term to stated maturity referred to in clause (iii) above shall be determined on
a weighted average basis. Whenever a Qualifying Substitute Mortgage Loan is
substituted for a Deleted Mortgage Loan pursuant to this Agreement, the party
effecting such substitution shall certify that such Mortgage Loan meets all of
the requirements of this definition and shall send such certification to the
Paying Agent, which shall deliver a copy of such certification to the Special
Servicer, the Trustee
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and the Operating Adviser promptly, and in any event within five Business Days
following the Paying Agent's receipt of such certification.
"RATED FINAL DISTRIBUTION DATE" means with respect to each rated Class
of Certificates, the Distribution Date in October 2036.
"RATING AGENCIES" means Xxxxx'x and S&P.
"RATING AGENCY CONFIRMATION" means, with respect to any matter,
confirmation in writing by each Rating Agency (or such Rating Agency as is
specified herein) that a proposed action, failure to act, or other event
specified herein will not in and of itself result in the withdrawal, downgrade,
or qualification, as applicable, of the then-current rating assigned by such
Rating Agency to any Class of Certificates then rated by such Rating Agency.
"REALIZED INTEREST LOSS" means, with respect to each Mortgage Loan, (i)
in the case of a Liquidation Realized Loss, the portion of any Liquidation
Realized Loss that exceeds the Realized Principal Loss on the related Mortgage
Loan, (ii) in the case of a Bankruptcy Loss, the portion of such Realized Loss
attributable to accrued interest on the related Mortgage Loan, (iii) in the case
of an Expense Loss, an Expense Loss resulting in any period from the payment of
the Special Servicing Fee and any Expense Losses set forth in the last sentence
of the definition of "Realized Principal Loss" or (iv) in the case of a
Modification Loss, a Modification Loss described in clause (iii) of the
definition thereof.
"REALIZED LOSS" means a Liquidation Realized Loss, a Modification Loss,
a Bankruptcy Loss or an Expense Loss with respect to a Mortgage Loan. Realized
Losses on a Mortgage Loan are allocated first to the Principal Balance of, and
then to interest on such Mortgage Loan.
"REALIZED PRINCIPAL LOSS" means, with respect to each Mortgage Loan,
(i) in the case of a Liquidation Realized Loss, the amount of such Realized
Loss, to the extent that it does not exceed the Principal Balance of the
Mortgage Loan (or deemed Principal Balance, in the case of REO Property), (ii)
in the case of a Modification Loss, the amount of such Modification Loss
described in clause (i) of the definition thereof, (iii) in the case of a
Bankruptcy Loss, the portion of such Realized Loss attributable to the reduction
in the Principal Balance of the related Mortgage Loan, and (iv) in the case of
an Expense Loss, the portion thereof not treated as a Realized Interest Loss.
Notwithstanding clause (iv) of the preceding sentence, to the extent that
Expense Losses (exclusive of Expense Losses resulting from payment of the
Special Servicing Fee) exceed amounts with respect to the Mortgage Loans that
were identified as allocable to principal, such excess shall be treated as a
Realized Interest Loss.
"RECORD DATE" means, for each Distribution Date and each Class of
Certificates, the close of business on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs.
"RECOVERIES" means, as of any Distribution Date, any amounts recovered
with respect to a Mortgage Loan, B Note or REO Property following the period in
which a Final Recovery Determination occurs plus other amounts defined as
"Recoveries" herein.
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"REGULATION S" means Regulation S under the 1933 Act.
"REGULATION S CERTIFICATE" means a written certification substantially
in the form set forth in Exhibit F hereto certifying that a beneficial owner of
an interest in a Regulation S Temporary Global Certificate is not a U.S. Person
(as defined in Regulation S).
"REGULATION S GLOBAL CERTIFICATES" means the Regulation S Permanent
Global Certificates together with the Regulation S Temporary Global
Certificates.
"REGULATION S PERMANENT GLOBAL CERTIFICATE" means any single permanent
global Certificate, in definitive, fully registered form without interest
coupons received in exchange for a Regulation S Temporary Global Certificate.
"REGULATION S TEMPORARY GLOBAL CERTIFICATE" means, with respect to any
Class of Certificates offered and sold outside of the United States in reliance
on Regulation S, a single temporary global Certificate, in definitive, fully
registered form without interest coupons.
"REHABILITATED MORTGAGE LOAN" means any Specially Serviced Mortgage
Loan with respect to which (i) three consecutive Scheduled Payments have been
made (in the case of any such Mortgage Loan or B Note that was modified, based
on the modified terms), or a complete defeasance shall have occurred, (ii) no
other Servicing Transfer Event has occurred and is continuing (or with respect
to determining whether a Required Appraisal Loan is a Rehabilitated Mortgage
Loan for applying Appraisal Reductions, no other Appraisal Event has occurred
and is continuing) and (iii) the Trust has been reimbursed for all costs
incurred as a result of the occurrence of a Servicing Transfer Event or such
amounts have been forgiven. An A Note shall not constitute a Rehabilitated
Mortgage Loan unless its related B Note would constitute a Rehabilitated
Mortgage Loan. A B Note shall not constitute a Rehabilitated Mortgage Loan
unless its related A Note also would constitute a Rehabilitated Mortgage Loan.
"RELEASE DATE" means the date 40 days after the later of (i) the
commencement of the offering of the Certificates and (ii) the Closing Date.
"REMIC" means a real estate mortgage investment conduit within the
meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of the
Mortgage Loans (other than any Excess Interest payable thereon), such amounts as
shall from time to time be held in the Certificate Account and the Distribution
Account (other than the portion thereof constituting the Excess Interest
Sub-account), the Insurance Policies (other than the interests of the holder of
any B Note therein) and any REO Properties (other than the interests of the
holder of any B Note therein), for which a REMIC election has been made pursuant
to Section 12.1(a) hereof. Excess Interest on the Mortgage Loans and the Excess
Interest Sub-account shall constitute assets of the Trust but shall not be a
part of any REMIC Pool formed hereunder. No B Note or any amounts payable
thereon shall constitute an asset of the Trust or any REMIC Pool formed
hereunder.
"REMIC I INTERESTS" means, collectively, the REMIC I Regular Interests
and the Class R-I Certificates.
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"REMIC I NET MORTGAGE RATE" means, with respect to any Distribution
Date, as to any REMIC I Regular Interest, a rate per annum equal (a) with
respect to any Mortgage Loan that accrues interest on the basis of a 360-day
year consisting of twelve (12) 30-day months ("30/360 basis"), (i) the Mortgage
Rate thereof (without taking into account any increase therein after the
Anticipated Repayment Date in respect of an ARD Loan or any default interest
rate) as of the Cut-Off Date and without regard to any modification, waiver or
amendment of the terms thereof following the Cut-Off Date, minus (ii) the
Administrative Cost Rate, and (b) with respect to any Mortgage Loan that accrues
interest on a basis other than a 30/360 basis, the annualized rate that, when
applied to the Principal Balance of the related Mortgage Loan (on the day prior
to the Due Date preceding such Distribution Date) on a 30/360 basis for the
related loan accrual period, yields the amount of net interest that would have
accrued during the related loan accrual period assuming a net interest rate
equal to the rate described in clause (a) above, and assuming an interest
accrual basis that is the same as the actual interest accrual basis of such
Mortgage Loan, provided that for purposes of this clause (b), (i) the REMIC I
Net Mortgage Rate for the loan accrual period relating to the Due Dates in both
January and February in any year that is not a leap year and in February in any
year that is a leap year, shall be determined net of any amounts transferred to
the Interest Reserve Account and (ii) the REMIC I Net Mortgage Rate for the loan
accrual period relating to the Due Date in March shall be determined taking into
account the addition of any amounts withdrawn from the Interest Reserve Account.
"REMIC I REGULAR INTERESTS" means, collectively, the uncertificated
interests designated as "regular interests" in REMIC I, which shall consist of,
with respect to each Mortgage Loan, an interest having an initial Certificate
Balance equal to the Cut-Off Date Scheduled Principal Balance of such Mortgage
Loan, and which has a Pass-Through Rate equal to the REMIC I Net Mortgage Rate
of such Mortgage Loan.
"REMIC II" means the segregated pool of assets consisting of the REMIC
I Regular Interests for which a REMIC election has been made pursuant to Section
12.1(a) hereof.
"REMIC II INTERESTS" means, collectively, the REMIC II Regular
Interests and the Class R-II Certificates.
"REMIC II REGULAR INTEREST A-1A" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having initial Certificate Balance equal to $140,063,000, and which has
a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-1B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having initial Certificate Balance equal to $164,907,000, and which has
a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2A" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $76,191,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
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"REMIC II REGULAR INTEREST A-2B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $571,756,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class B Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST C" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class C Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST D" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class D Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST E" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class E Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST F" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class F Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST G" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class G Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST H" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class H Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class J Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST K" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance
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equal to the Aggregate Certificate Balance of the Class K Certificates, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST L" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class L Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST M" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class M Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST N" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class N Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTERESTS" means, collectively, the REMIC II Regular
Interest A-1A, REMIC II Regular Interest A-1B, REMIC II Regular Interest A-2A,
REMIC II Regular Interest A-2B, REMIC II Regular Interest B, REMIC II Regular
Interest C, REMIC II Regular Interest D, REMIC II Regular Interest E, REMIC II
Regular Interest F, REMIC II Regular Interest G, REMIC II Regular Interest H,
REMIC II Regular Interest J, REMIC II Regular Interest K, REMIC II Regular
Interest L, REMIC II Regular Interest M and REMIC II Regular Interest N.
"REMIC III" means the segregated pool of assets consisting of the REMIC
II Regular Interests for which a REMIC election has been made pursuant to
Section 12.1(a) hereof.
"REMIC III CERTIFICATES" has the meaning set forth in the final
paragraph of the Preliminary Statement hereto.
"REMIC III REGULAR INTERESTS" means, collectively, the Class A-1
Certificates, Class A-2 Certificates, Class X-1 Certificates (each Class X-1
Certificate representing multiple "regular interests" in REMIC III), Class X-2
Certificates (each Class X-2 Certificate representing multiple "regular
interests" in REMIC III), 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. References to REMIC
III Regular Certificates will, with respect to the Class N Certificates, be
considered to refer to the Class N REMIC Interest that is a "regular interest"
in REMIC III, where appropriate.
"REMIC POOL" means each of the three segregated pools of assets
designated as a REMIC pursuant to Section 12.1(a) hereof.
"REMIC PROVISIONS" means the provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and final, temporary and
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proposed regulations and rulings promulgated thereunder, as the foregoing may be
in effect from time to time and taking account, as appropriate, of any proposed
legislation or regulations which, as proposed, would have an effective date
prior to enactment or promulgation thereof.
"REMIC REGULAR CERTIFICATES" means, collectively, the Class A, Class
X-1, Class X-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M and Class N Certificates.
"RENT LOSS POLICY" or "RENT LOSS INSURANCE" means a policy of insurance
generally insuring against loss of income or rent resulting from hazards or acts
of God.
"RENTS FROM REAL PROPERTY" means, with respect to any REO Property,
income of the character described in Section 856(d) of the Code.
"REO ACCOUNT" shall have the meaning set forth in Section 9.14(a)
hereof.
"REO DISPOSITION" means the receipt by the Master Servicer or the
Special Servicer of Liquidation Proceeds and other payments and recoveries
(including proceeds of a final sale) from the sale or other disposition of REO
Property.
"REO INCOME" means, with respect to any REO Property that had not been
security for an A/B Mortgage Loan for any Collection Period, all income received
in connection with such REO Property during such period less any operating
expenses, utilities, real estate taxes, management fees, insurance premiums,
expenses for maintenance and repairs and any other capital expenses directly
related to such REO Property paid during such period or, with respect to an REO
Property that had been security for an A/B Mortgage Loan, the portion of the
amounts described above received with respect to such REO Property and allocable
to the related A Note pursuant to the related Intercreditor Agreement.
"REO MORTGAGE LOAN" means a Mortgage Loan or B Note as to which the
related Mortgaged Property is an REO Property.
"REO PROPERTY" means a Mortgaged Property (or an interest therein, if
the Mortgaged Property securing an A/B Mortgage Loan has been acquired by the
Trust) acquired by the Trust through foreclosure, deed-in-lieu of foreclosure,
abandonment or reclamation from bankruptcy in connection with a Defaulted
Mortgage Loan or otherwise treated as foreclosure property under the REMIC
Provisions.
"REPORT DATE" means the third Business Day before the related
Distribution Date.
"REPURCHASED LOAN" has the meaning set forth in Section 2.3(a) hereof.
"REQUEST FOR RELEASE" means a request for release of certain documents
relating to the Mortgage Loans, a form of which is attached hereto as Exhibit C.
"REQUIRED APPRAISAL LOAN" means any Mortgage Loan as to which an
Appraisal Event has occurred. A Mortgage Loan will cease to be a Required
Appraisal Loan at such time as it is a Rehabilitated Mortgage Loan.
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"RESERVE ACCOUNT" shall mean the Reserve Account maintained by the
Paying Agent in accordance with the provisions of Section 5.3, which shall be an
Eligible Account.
"RESIDUAL CERTIFICATES" means, with respect to REMIC I, the Class R-I
Certificates, with respect to REMIC II, the Class R-II Certificates, and with
respect to REMIC III, the Class R-III Certificates.
"RESPONSIBLE OFFICER" means, when used with respect to the initial
Trustee or the Fiscal Agent, any officer assigned to the Asset-Backed Securities
Trust Services Group, or with respect to the Paying Agent, any officer assigned
to the Corporate Trust Services Group, each with specific responsibilities for
the matters contemplated by this Agreement and when used with respect to any
successor Trustee, Fiscal Agent or Paying Agent, any Vice President, Assistant
Vice President, corporate trust officer or any assistant corporate trust officer
or persons performing similar roles on behalf of the Trustee, Fiscal Agent or
Paying Agent.
"RESTRICTED SERVICER REPORTS" means the following reports in CMSA
format (as in effect on the date hereof or as such formats may be changed from
time to time by the CMSA) in, and containing substantially the information
contemplated by, the forms attached hereto as part of Exhibit W prepared by the
Master Servicer (combining reports in such forms prepared by the Master Servicer
and the Special Servicer (with respect to Specially Serviced Mortgage Loans and
REO Properties)): (i) a Comparative Financial Status Report; (ii) without
duplication with Section 8.14, an NOI Adjustment Worksheet; (iii) without
duplication with Section 8.14, an Operating Statement Analysis Report, (iv)
subject to Section 8.11(h), a Servicer Watch List, (v) a Property File and (vi)
without duplication with Section 8.14, a Financial File.
"REVERSE SEQUENTIAL ORDER" means sequentially to the Class N, Class M,
Class L, Class K, Class J, Class H, Class G, Class F, Class E, Class D, Class C,
Class B and finally to the Class X and Class A Certificates, on a pro rata
basis, as described herein.
"RULE 144A" means Rule 144A under the 1933 Act.
"RULE 144A-IAI GLOBAL CERTIFICATE" means, with respect to any Class of
Certificates offered and sold in reliance on Rule 144A or to certain
Institutional Accredited Investors, a single, permanent global Certificate, in
definitive, fully registered form without interest coupons.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc. or its successor in interest.
"SCHEDULED PAYMENT" means each scheduled payment of principal of,
and/or interest on, a Mortgage Loan or B Note required to be paid on its Due
Date by the Mortgagor in accordance with the terms of the related Mortgage Note
or B Note (excluding all amounts of principal and interest which were due on or
before the Cut-Off Date, whenever received, and taking account of any
modifications thereof and the effects of any Debt Service Reduction Amounts and
Deficient Valuation Amounts). Notwithstanding the foregoing, the amount of the
Scheduled Payment for any A Note or B Note shall be calculated without regard to
the related Intercreditor Agreement.
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"SCHEDULED PRINCIPAL BALANCE" means, with respect to any Mortgage Loan,
B Note or REO Mortgage Loan, for purposes of performing calculations with
respect to any Distribution Date, the Principal Balance thereof minus the
aggregate amount of any P&I Advances of principal previously made with respect
to such Mortgage Loan, B Note or REO Mortgage Loan.
"SELLER" means Principal, Xxxxx Fargo, BSF or MSDWMC as the case may
be.
"SENIOR CERTIFICATES" means the Class A and Class X Certificates.
"SERVICER ERRORS AND OMISSIONS INSURANCE POLICY" or "ERRORS AND
OMISSIONS INSURANCE POLICY" means an errors and omissions insurance policy
maintained by the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent or the Paying Agent, as the case may be, in accordance with Section 8.2,
Section 9.2 and Section 7.17, respectively.
"SERVICER FIDELITY BOND" or "FIDELITY BOND" means a bond or insurance
policy under which the insurer agrees to indemnify the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent or the Paying Agent, as the case
may be, (subject to standard exclusions) for all losses (less any deductible)
sustained as a result of any theft, embezzlement, fraud or other dishonest act
on the part of the Master Servicer's, the Special Servicer's, the Trustee's, the
Fiscal Agent's or the Paying Agent's, as the case may be, directors, officers or
employees and is maintained in accordance with Section 8.2, Section 9.2 and
Section 7.17, respectively.
"SERVICER MORTGAGE FILE" means copies of the mortgage documents listed
in the definition of Mortgage File relating to a Mortgage Loan and shall also
include, to the extent required to be (and actually) delivered to the applicable
Seller pursuant to the applicable Mortgage Loan documents, copies of the
following items: the Mortgage Note, any Mortgage, the Assignment of Leases and
the Assignment of Mortgage, any guaranty/indemnity agreement, any loan
agreement, any insurance policies or certificates (as applicable), any property
inspection reports, any financial statements on the property, any escrow
analysis, any tax bills, any Appraisal, any environmental report, any
engineering report, any asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreement and any Environmental Insurance Policies.
"SERVICING ADVANCE" means any cost or expense of the Master Servicer,
the Trustee or the Fiscal Agent, as the case may be, designated as a Servicing
Advance pursuant to this Agreement and any other costs and expenses incurred by
the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as
the case may be, to protect and preserve the security for such Mortgage Loan
and/or (if applicable) the related B Note.
"SERVICING OFFICER" means, any officer or employee of the Master
Servicer involved in, or responsible for, the administration and servicing of
the Mortgage Loans and any B Note whose name and specimen signature appear on a
list of servicing officers or employees furnished to the Trustee by the Master
Servicer and signed by an officer of the Master Servicer, as such list may from
time to time be amended.
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"SERVICING STANDARD" means, with respect to the Master Servicer or the
Special Servicer, as the case may be, to service and administer the Mortgage
Loans (and any B Note) that it is obligated to service and administer pursuant
to this Agreement on behalf of the Trustee and in the best interests of and for
the benefit of the Certificateholders (and in the case of any B Note, the
related holder of the B Note) (as determined by the Master Servicer or the
Special Servicer, as the case may be, in its good faith and reasonable
judgment), in accordance with applicable law, the terms of this Agreement and
the terms of the respective Mortgage Loans and any B Note (and, in the case of
any A Note and B Note, the related Intercreditor Agreement) and, to the extent
consistent with the foregoing, further as follows:
(a) with the same care, skill and diligence as is normal and usual in
its general mortgage servicing and REO property management activities on behalf
of third parties or on behalf of itself, whichever is higher, with respect to
mortgage loans and REO properties that are comparable to those for which it is
responsible hereunder;
(b) with a view to the timely collection of all scheduled payments of
principal and interest under the Mortgage Loans and any B Note or, if a Mortgage
Loan or any B Note comes into and continues in default and if, in the good faith
and reasonable judgment of the Special Servicer, no satisfactory arrangements
can be made for the collection of the delinquent payments, the maximization of
the recovery on such Mortgage Loan to the Certificateholders (as a collective
whole) (or in the case of any A/B Mortgage Loan and its related B Note, the
maximization of recovery on such A/B Mortgage Loan to the Certificateholders and
the holder of the related B Note, all taken as a collective whole) on a present
value basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders to be performed at the related REMIC I Net
Mortgage Rate, in the case of the Mortgage Loans (other than any A Note) or the
weighted average of the mortgage rates on the related A Note and B Note, in the
case of any A/B Mortgage Loan); and without regard to: (I) any other
relationship that the Master Servicer or the Special Servicer, as the case may
be, or any Affiliate thereof may have with the related Mortgagor; (II) the
ownership of any Certificate by the Master Servicer or the Special Servicer, as
the case may be, or any Affiliate thereof; (III) the Master Servicer's
obligation to make Advances; and (IV) the right of the Master Servicer (or any
Affiliate thereof) or the Special Servicer (or any Affiliate thereof), as the
case may be, to receive reimbursement of costs, or the sufficiency of any
compensation payable to it, hereunder or with respect to any particular
transaction.
"SERVICING TRANSFER EVENT" means the occurrence of any of the following
events: (i) any Mortgage Loan or B Note as to which a Balloon Payment is past
due, and the Master Servicer has determined, in its good faith reasonable
judgment in accordance with the Servicing Standard, that payment is unlikely to
be made on or before the 60th day succeeding the date the Balloon Payment was
due, or any other payment is more than 60 days past due or has not been made on
or before the second Due Date following the Due Date such payment was due; (ii)
any Mortgage Loan or B Note as to which, to the Master Servicer's knowledge, the
Mortgagor has consented to the appointment of a receiver or conservator in any
insolvency or similar proceeding of, or relating to, such Mortgagor or to all or
substantially all of its property, or the Mortgagor has become the subject of a
decree or order issued under a bankruptcy, insolvency or similar law and such
decree or order shall have remained undischarged or unstayed for a period of 30
days; (iii) any Mortgage Loan or B Note as to which the Master Servicer shall
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have received notice of the foreclosure or proposed foreclosure of any other
lien on the Mortgaged Property; (iv) any Mortgage Loan or B Note as to which the
Master Servicer has knowledge of a default (other than a failure by the related
Mortgagor to pay principal or interest) which in the good faith reasonable
judgment of the Master Servicer materially and adversely affects the interests
of the Certificateholders or the holder of any related B Note and which has
occurred and remains unremedied for the applicable grace period specified in
such Mortgage Loan (or, if no grace period is specified, 60 days); (v) any
Mortgage Loan or B Note as to which the Mortgagor admits in writing its
inability to pay its debts generally as they become due, files a petition to
take advantage of any applicable insolvency or reorganization statute, makes an
assignment for the benefit of its creditors or voluntarily suspends payment of
its obligations; (vi) any Mortgage Loan or B Note as to which, in the good faith
reasonable judgment of the Master Servicer, (a) (other than with respect to any
A/B Mortgage Loan) a payment default is imminent or is likely to occur within 60
days, or (b) any other default is imminent or is likely to occur within 60 days
and such default, in the judgment of the Master Servicer, is reasonably likely
to materially and adversely affect the interests of the Certificateholders or
the holder of any related B Note (as the case may be); and (vii) with respect to
any A/B Mortgage Loan, if the holder of the B Note chooses not to cure a
monetary default that is permitted to be cured under the related Intercreditor
Agreement, the Business Day following the expiration of the Cure Period (as
defined below) of the holder of the B Note that commences one month after such
monetary default; provided, however, that (1) if the holder of the B Note
exercised its right to cure a monetary default and a monetary default occurs in
the following month due to the holder of the B Note's failure to cure, then
servicing of such Mortgage Loan shall be transferred to the Special Servicer on
the Business Day following the expiration of the Cure Period (as defined in the
Intercreditor Agreement) of the holder of the B Note if the holder of the B Note
does not cure the current monetary default or (2) if the holder of the B Note
has exercised its right to cure three consecutive monetary defaults and a
monetary default occurs in the following month, then servicing of such Mortgage
Loan shall be transferred to the Special Servicer at the expiration of the
Mortgagor's grace period for the current monetary default. If a Servicing
Transfer Event occurs with respect to an A Note, it shall be deemed to have
occurred also with respect to its related B Note. If a Servicing Transfer Event
occurs with respect to a B Note, it shall be deemed to have occurred also with
respect to its related A Note. However, if a Servicing Transfer Event has not
occurred with respect to an A Note solely due to the holder of the related B
Note exercising its cure rights under the related Intercreditor Agreement, then
a Servicing Transfer Event will not occur with respect to such B Note. With
respect to any A/B Mortgage Loan, "Cure Period" means the ten days after the
expiration of the applicable borrower's grace period.
"SIMILAR LAWS" has the meaning set forth in Section 3.3(d).
"SINGLE-PURPOSE ENTITY" means a Person, other than an individual, whose
organizational documents provide substantially to the effect that it is formed
or organized solely for the purpose of owning and collecting payments from
Defeasance Collateral for the benefit of the Trust and which (i) does not engage
in any business unrelated thereto and the financing thereof; (ii) does not have
any assets other than those related to its interest in Defeasance Collateral;
(iii) maintains its own books, records and accounts, in each case which are
separate and apart from the books, records and accounts of any other Person;
(iv) conducts business in its own name and uses separate stationery, invoices
and checks; (v) does not guarantee or assume the debts or obligations of any
other Person; (vi) does not commingle its assets or funds with
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those of any other Person; (vii) transacts business with affiliates on an arm's
length basis pursuant to written agreements; and (viii) holds itself out as
being a legal entity, separate and apart from any other Person, and otherwise
complies with the single-purpose requirements established by the Rating
Agencies. The entity's organizational documents also provide that any
dissolution and winding up or insolvency filing for such entity requires the
unanimous consent of all partners or members, as applicable, and that such
documents may not be amended with respect to the Single-Purpose Entity
requirements.
"SPECIAL SERVICER" means GMAC Commercial Mortgage Corporation, or any
successor Special Servicer as herein provided.
"SPECIAL SERVICER COMPENSATION" means, with respect to any applicable
period, the sum of the Special Servicing Fees, the Liquidation Fees and Work-Out
Fees and any other amounts to be paid to the Special Servicer pursuant to the
terms of this Agreement.
"SPECIAL SERVICER REMITTANCE DATE" means the Business Day preceding
each Determination Date.
"SPECIAL SERVICING FEE" means, for each calendar month, as to each
Mortgage Loan or B Note that is a Specially Serviced Mortgage Loan (including
REO Mortgage Loans), the fraction or portion of the Special Servicing Fee Rate
applicable to such month (determined using the same interest accrual methodology
that is applied with respect to the Mortgage Rate for such Mortgage Loan or B
Note for such month) multiplied by the Scheduled Principal Balance of such
Specially Serviced Mortgage Loan immediately before the Due Date occurring in
such month.
"SPECIAL SERVICING FEE RATE" means 0.25% per annum.
"SPECIAL SERVICING OFFICER" means any officer or employee of the
Special Servicer involved in, or responsible for, the administration and
servicing of the Specially Serviced Mortgage Loans whose name and specimen
signature appear on a list of servicing officers or employees furnished to the
Trustee, the Paying Agent and the Master Servicer by the Special Servicer signed
by an officer of the Special Servicer, as such list may from time to time be
amended.
"SPECIALLY SERVICED MORTGAGE LOAN" means, as of any date of
determination, any Mortgage Loan or B Note with respect to which the Master
Servicer has notified the Special Servicer and the Trustee that a Servicing
Transfer Event has occurred (which notice shall be effective upon receipt) and
the Special Servicer has received all information, documents and records
relating to such Mortgage Loan or B Note as reasonably requested by the Special
Servicer to enable it to assume its duties with respect to such Mortgage Loan or
B Note. A Specially Serviced Mortgage Loan shall cease to be a Specially
Serviced Mortgage Loan from and after the date on which the Special Servicer
notifies the Master Servicer, the Paying Agent and the Trustee, in accordance
with Section 8.1(b), that such Mortgage Loan (and the related B Note in the case
of an A/B Mortgage Loan) has become a Rehabilitated Mortgage Loan (and, in the
case of an A Note (or B Note) that is or was a Specially Serviced Mortgage Loan,
its related B Note (or A Note) has also become a Rehabilitated Mortgage Loan),
with respect to such
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Servicing Transfer Event, unless and until the Master Servicer notifies the
Special Servicer, the Paying Agent and the Trustee, in accordance with Section
8.1(b) that another Servicing Transfer Event with respect to such Mortgage Loan
or B Note exists or occurs.
"STANDARD HAZARD INSURANCE POLICY" means a fire and casualty extended
coverage insurance policy in such amount and with such coverage as required by
this Agreement.
"SUB-SERVICER" has the meaning set forth in Section 8.4.
"SUBORDINATE CERTIFICATES" means, collectively, the Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M
and Class N Certificates.
"SUCCESSFUL BIDDER" has the meaning set forth in Section 8.29(d) or
Section 9.31(d), as applicable.
"TAX MATTERS PERSON" means the person designated as the "tax matters
person" of each REMIC Pool pursuant to Treasury Regulations Section 1.860F-4(d)
and Temporary Treasury Regulations Section 301.6231(a)(7)-1T.
"TERMINATION PRICE" has the meaning set forth in Section 10.1(b)
herein.
"TITLE INSURANCE POLICY" means a title insurance policy maintained with
respect to a Mortgage Loan issued on the date of origination of the related
Mortgage Loan.
"TRANSFER" means any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"TRANSFEREE" means any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"TRANSFEROR" means any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"TRUST" means the trust created pursuant to this Agreement, the assets
which consist of all the assets of REMIC I (including the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Insurance Policies, any REO Properties and other items
referred to in Section 2.1(a) hereof), REMIC II and REMIC III and the Excess
Interest Sub-account and any Excess Interest on the Mortgage Loans. The Trust
shall not include any B Note, any interest of the holders of a B Note or any A/B
Loan Custodial Account.
"TRUSTEE" means LaSalle Bank National Association, as trustee, or its
successor-in-interest, or if any successor trustee, or any co-trustee shall be
appointed as herein provided, then "Trustee" shall also mean such successor
trustee (subject to Section 7.7 hereof) and such co-trustee (subject to Section
7.9 hereof), as the case may be.
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"TRUSTEE FEE" means for each calendar month, as to each Mortgage Loan
and B Note (including REO Mortgage Loans and Defeasance Loans), the portion of
the Trustee Fee Rate applicable to such month (determined using the same
interest accrual methodology (other than the rate of accrual) that is applied
with respect to the Mortgage Rate for such Mortgage Loan or B Note for such
month) multiplied by the Scheduled Principal Balance of each such Mortgage Loan
or B Note immediately before the Due Date occurring in such month, provided that
a portion of the Trustee Fee agreed upon between the Trustee and the Paying
Agent shall be applied to pay the Paying Agent Fee.
"TRUSTEE FEE RATE" means 0.0024% per annum (which includes the Paying
Agent Fee).
"TRUSTEE MORTGAGE FILE" means the mortgage documents listed in the
definition of Mortgage File hereof pertaining to a particular Mortgage Loan
(and, if applicable, the related B Note) and any additional documents required
to be added to the Mortgage File pursuant to this Agreement; provided that
whenever the term "Trustee Mortgage File" is used to refer to documents actually
received by the Trustee or a Custodian on its behalf, such terms shall not be
deemed to include such documents required to be included therein unless they are
actually so received.
"UNDERWRITER" means each of Bear, Xxxxxxx & Co. Inc., Xxxxxx Xxxxxxx &
Co. Incorporated, Xxxxxxx, Sachs & Co. and Xxxxx Fargo Brokerage Services, LLC
or its successors in interest.
"UNITED STATES PERSON" means (i) any natural person resident in the
United States, (ii) any partnership or corporation organized or incorporated
under the laws of the United States or any state thereof or the District of
Columbia, (iii) any estate of which an executor or administrator is a United
States Person (other than an estate governed by foreign law and of which at
least one executor or administrator is a non-United States Person who has sole
or shared investment discretion with respect to its assets), (iv) any trust of
which any trustee is a United States Person (other than a trust of which at
least one trustee is a non-United States Person and has sole or shared
investment discretion with respect to its assets), (v) any agency or branch of a
foreign entity located in the United States, (vi) any non-discretionary or
similar account (other than an estate or trust) held by a dealer or other
fiduciary for the benefit or account of a United States Person, (vii) any
discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary organized, incorporated or (if an individual) resident
in the United States (other than such an account held for the benefit or account
of a non-United States Person), (viii) any partnership or corporation organized
or incorporated under the laws of a foreign jurisdiction and formed by a United
States Person principally for the purpose of investing in securities not
registered under the 1933 Act (unless it is organized or incorporated, and
owned, by accredited investors within the meaning of Rule 501(A) under the 1933
Act who are not natural persons, estates or trusts); provided, however, that the
term "United States Person" shall not include (A) a branch or agency of a United
States Person that is located and operating outside the United States for valid
business purposes as a locally regulated branch or agency engaged in the banking
or insurance business, (B) any employee benefit plan established and
administered in accordance with the law, customary practices and documentation
of a foreign country and (C)
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the international organizations set forth in Section 902(o)(7) of Regulation S
under the 1933 Act and any other similar international organizations, and their
agencies, affiliates and pension plans.
"UNITED STATES TAX PERSON" means any of (i) a citizen or resident of
the United States, (ii) corporation or partnership organized in or under the
laws of the United States or any political subdivision thereof, (iii) an estate
the income of which is includible in gross income for United States tax
purposes, regardless of its source or (iv) a trust if a court within the United
States is able to exercise primary supervision over the administration of such
trust, and one or more United States Tax Persons has the authority to control
all substantial decisions of such trust.
"UNPAID INTEREST" means, on any Distribution Date with respect to any
Class of Interests or Certificates (other than the Residual Certificates), the
portion of Distributable Certificate Interest for such Class remaining unpaid as
of the close of business on the preceding Distribution Date, plus one month's
interest thereon at the applicable Pass-Through Rate.
"UNRESTRICTED SERVICER REPORTS" means the following reports in CMSA
format (as in effect on the date hereof or as such formats may be changed from
time to time by the CMSA) in, and containing substantially the information
contemplated by, the forms attached hereto as part of Exhibit X prepared by the
Master Servicer (combining reports in such forms prepared by the Master Servicer
and the Special Servicer (with respect to Specially Serviced Mortgaged Loans and
REO Properties)): (a) the following electronic files; (i) a Loan Set-Up File
(with respect to the initial Distribution Date only); and (ii) a Loan Periodic
Update File; and (b) the following supplemental reports: (i) a Delinquent Loan
Status Report, (ii) an Historical Loan Modification Report, (iii) an Historical
Liquidation Report, and (iv) an REO Status Report.
"USAP" shall have the meaning set forth in Section 8.13.
"WEIGHTED AVERAGE REMIC I NET MORTGAGE RATE" means, with respect to any
Distribution Date, the weighted average of the REMIC I Net Mortgage Rates for
the REMIC I Regular Interests, weighted on the basis of their respective
Certificate Balances as of the close of business on the preceding Distribution
Date.
"XXXXX FARGO" has the meaning assigned in the Preliminary Statement
hereto.
"XXXXX FARGO LOANS" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to Mortgage Loan Purchase Agreement II and shown on
Schedule II hereto.
"WORK-OUT FEE" means a fee payable with respect to any Rehabilitated
Mortgage Loan, equal to the product of (x) 1.0% and (y) the amount of each
collection of interest (other than default interest and Excess Interest) and
principal received (including any Condemnation Proceeds received and applied as
a collection of such interest and principal) on such Mortgage Loan or B Note for
so long as it remains a Rehabilitated Mortgage Loan.
SECTION 1.2 CALCULATIONS RESPECTING MORTGAGE LOANS. (a) Calculations
required to be made by the Paying Agent pursuant to this Agreement with respect
to any Mortgage Loan or B Note shall be made based upon current information as
to the terms of the Mortgage Loans and B Note and reports of payments received
from the Master Servicer on such
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Mortgage Loans and B Note and payments to be made to the Paying Agent as
supplied to the Paying Agent by the Master Servicer. The Paying Agent shall not
be required to recompute, verify or recalculate the information supplied to it
by the Master Servicer and may conclusively rely upon such information in making
such calculations. If, however, a Responsible Officer of the Paying Agent has
actual knowledge of an error in the calculations, the Paying Agent shall inform
the Master Servicer of such error.
(b) Unless otherwise required by law or the applicable Mortgage Loan or
B Note documents (or the related Intercreditor Agreement), any amounts (other
than escrow and reserve deposits and reimbursements of lender advances and
expenses) received in respect of a Mortgage Loan or B Note as to which a default
has occurred and is continuing shall be applied first to overdue interest due
with respect to such Mortgage Loan or B Note at the Mortgage Rate thereof, next
to current interest due with respect to such Mortgage Loan or B Note at the
Mortgage Rate thereof, next to the reduction of the Principal Balance of such
Mortgage Loan or B Note to zero if such Mortgage Loan or B Note has been
accelerated and in respect of any scheduled payments of principal then due to
the extent that such Mortgage Loan or B Note has not yet been accelerated, next
to any default interest and other amounts due on such Mortgage Loan or B Note
and finally to Late Fees due with respect to such Mortgage Loan or B Note.
SECTION 1.3 CALCULATIONS RESPECTING ACCRUED INTEREST. Accrued interest
on any Certificate shall be calculated based upon a 360-day year consisting of
twelve 30-day months and Pass-Through Rates shall be carried out to eight
decimal places, rounded if necessary. All dollar amounts calculated hereunder
shall be rounded to the nearest xxxxx.
SECTION 1.4 INTERPRETATION.
(a) Whenever the Agreement refers to a Distribution Date and a
"related" Collection Period, Interest Accrual Period, Record Date, Due Date,
Report Date, Monthly Certificateholders Report, Special Servicer Remittance
Date, Master Servicer Remittance Date or Determination Date, such reference
shall be to the Collection Period, Interest Accrual Period, Record Date, Due
Date, Report Date, Special Servicer Remittance Date, Master Servicer Remittance
Date or Determination Date, as applicable, immediately preceding such
Distribution Date.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1 shall have the respective meanings given to them under generally accepted
accounting principles or regulatory accounting principles, as applicable.
(c) The words "hereof," "herein" and "hereunder," and words of similar
import, when used in this Agreement, shall refer to this agreement as a whole
and not to any particular provision of this Agreement, and references to
Sections, Schedules and Exhibits contained in this Agreement are references to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified.
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(d) Whenever a term is defined herein, the definition ascribed to such
term shall be equally applicable to both the singular and plural forms of such
term and to masculine, feminine and neuter genders of such term.
(e) This Agreement is the result of arm's-length negotiations between
the parties and has been reviewed by each party hereto and its counsel. Each
party agrees that any ambiguity in this Agreement shall not be interpreted
against the party drafting the particular clause which is in question.
SECTION 1.5 ARD LOANS. Notwithstanding any provision of this Agreement:
(a) For the ARD Loans, the Excess Interest accruing as a result of the
step-up in the Mortgage Rate upon failure of the related Mortgagor to pay the
principal on the Anticipated Repayment Date as specifically provided for in the
related Mortgage Note shall not be taken into account for purposes of the
definitions of "Appraisal Reduction," "Assumed Scheduled Payment," "Mortgage
Rate," "Purchase Price" and "Realized Loss."
(b) Excess Interest shall constitute an asset of the Trust but not an
asset of any REMIC Pool.
(c) Neither the Master Servicer nor the Special Servicer shall take any
enforcement action with respect to the payment of Excess Interest unless the
taking of such action is consistent with the Servicing Standard and all other
amounts due under such Mortgage Loan have been paid, and, in the good faith and
reasonable judgment of the Master Servicer and the Special Servicer, as the case
may be, the Liquidation Proceeds expected to be recovered in connection with
such enforcement action will cover the anticipated costs of such enforcement
action and, if applicable, any associated interest thereon.
(d) Liquidation Fees shall not be deemed to be earned on Excess
Interest.
(e) With respect to an ARD Loan after its Anticipated Repayment Date,
the Master Servicer or the Special Servicer, as the case may be, shall be
permitted, in its discretion, to waive in accordance with Section 8.18 and
Section 9.5 hereof, all or any accrued Excess Interest if, prior to the related
Maturity Date, the related Mortgagor has requested the right to prepay the
Mortgage Loan in full together with all payments required by the Mortgage Loan
in connection with such prepayment except for all or a portion of accrued Excess
Interest, provided that the Master Servicer's or the Special Servicer's
determination to waive the right to such accrued Excess Interest is in
accordance with the Servicing Standard and with Section 8.18 and Section 9.5
hereof. The Master Servicer or the Special Servicer, as the case may be, will
have no liability to the Trust, the Certificateholders or any other person so
long as such determination is based on such criteria.
SECTION 1.6 CERTAIN MATTERS WITH RESPECT TO A/B MORTGAGE LOANS.
(a) For the avoidance of doubt, the parties acknowledge that the rights
and duties of each of the Master Servicer and the Special Servicer under Article
VIII and Article IX and the obligation of the Master Servicer to make Advances,
insofar as such rights, duties and obligations relate to any A/B Mortgage Loan
(including both the related A Note and the related
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B Note), shall terminate upon the earliest to occur of the following with
respect to such A/B Mortgage Loan: (i) any repurchase of or substitution for the
related A Note by the Seller of such A/B Mortgage Loan pursuant to Section 2.3,
(ii) any purchase of the related A Note by the owner of the related B Note
pursuant to the terms of the related Intercreditor Agreement and (iii) any
payment in full of any and all amounts due (or deemed due) under the related A
Note (or its successor REO Mortgage Loan) (including amounts to which the holder
of such A Note is entitled under the related Intercreditor Agreement); provided,
however, that this statement shall not limit (A) the duty of the Master Servicer
or the Special Servicer to deliver or make available the reports otherwise
required of it hereunder with respect to the Collection Period in which such
event occurs or (B) the rights of the Master Servicer or the Special Servicer
that may otherwise accrue or arise in connection with the performance of its
duties hereunder with respect to such A/B Mortgage Loan prior to the date on
which such event occurs. There are no A/B Mortgage Loans in the Trust.
(b) In connection with any purchase described in clause (ii) of
subsection (a) or an event described in clause (iii) of subsection (a), the
Trustee, the Master Servicer and the Special Servicer shall each tender to (in
the case of a purchase under such clause (ii)) the related purchaser (provided
that the related purchaser shall have paid the full amount of the applicable
purchase price) or (in the case of such clause (iii)) to the holder of the
related B Note, upon delivery to them of a receipt executed by such purchaser or
holder, all portions of the Mortgage File and other documents pertaining to such
A/B Mortgage Loan possessed by it, and each document that constitutes a part of
the Mortgage File shall be endorsed or assigned to the extent necessary or
appropriate to such purchaser or holder (or the designee of such purchaser or
holder) in the same manner, and pursuant to appropriate forms of assignment,
substantially similar to the manner and forms pursuant to which documents were
previously assigned to the Trustee by the related Seller, but in any event,
without recourse, representation or warranty; provided that such tender by the
Trustee shall be conditioned upon its receipt from the Master Servicer of a
Request for Release. The Master Servicer shall, and is also hereby authorized
and empowered by the Trustee to, convey to such purchaser or such holder any
deposits then held in an Escrow Account relating to the applicable A/B Mortgage
Loan. If an A Note and a B Note under the applicable Mortgage Loan are then REO
Mortgage Loans, then the Special Servicer shall, and is also hereby authorized
and empowered by the Trustee to, convey to such purchaser or such holder, in
each case, to the extent not needed to pay or reimburse the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent in accordance with this
Agreement, deposits then held in the REO Account insofar as they relate to the
related REO Property.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
SECTION 2.1 CONVEYANCE OF MORTGAGE LOANS.
(a) Effective as of the Closing Date, the Depositor does hereby assign
in trust to the Trustee, without recourse, for the benefit of the
Certificateholders all the right, title and interest of the Depositor, in, to
and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule, (ii)
the Depositor's rights under each Mortgage Loan Purchase Agreement that
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are permitted to be assigned to the Trustee pursuant to Section 14 thereof,
(iii) the Initial Deposit, (iv) the Depositor's rights under the Intercreditor
Agreement and (v) all other assets included or to be included in REMIC I for the
benefit of REMIC II and REMIC III. Such assignment includes all interest and
principal received or receivable on or with respect to the Mortgage Loans and
due after the Cut-Off Date. The transfer of the Mortgage Loans and the related
rights and property accomplished hereby is absolute and is intended by the
parties to constitute a sale. In connection with the initial sale of the
Certificates by the Depositor, the purchase price to be paid includes a portion
attributable to interest accruing on the Certificates from and after the Cut-Off
Date.
(b) In connection with the Depositor's assignment pursuant to Section
2.1(a) above, the Depositor shall direct, and hereby represents and warrants
that it has directed, each Seller pursuant to the applicable Mortgage Loan
Purchase Agreement to deliver to and deposit with, or cause to be delivered to
and deposited with, the Trustee or a Custodian appointed hereunder, on or before
the Closing Date, the Mortgage Note for each Mortgage Loan so assigned, endorsed
to the Trustee as specified in clause (i) of the definition of "Mortgage File."
Each Seller is required, pursuant to the applicable Mortgage Loan Purchase
Agreement, to deliver to the Trustee the remaining documents constituting the
Mortgage File for each Mortgage Loan within the time period set forth therein.
None of the Trustee, the Fiscal Agent, the Paying Agent, any Custodian, the
Master Servicer or the Special Servicer shall be liable for any failure by any
Seller or the Depositor to comply with the document delivery requirements of the
Mortgage Loan Purchase Agreements and this Section 2.1(b).
(c) The applicable Seller shall, at its expense as to each Mortgage
Loan, promptly (and in any event within 45 days following the receipt thereof)
cause to be submitted for recording or filing, as the case may be, in the
appropriate public office for real property records or UCC financing statements,
as appropriate, each assignment to the Trustee referred to in clauses (iv),
(vi)(B) and (ix)(B) of the definition of "Mortgage File". Each such assignment
shall reflect that it should be returned by the public recording office to the
Trustee following recording or filing; provided that in those instances where
the public recording office retains the original Assignment of Mortgage,
assignment of Assignment of Leases or assignment of UCC financing statements,
the applicable Seller shall obtain therefrom a certified copy of the recorded
original. The applicable Seller shall forward copies thereof to the Trustee and
the Special Servicer. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
applicable Seller shall, pursuant to the applicable Mortgage Loan Purchase
Agreement, promptly prepare or cause to be prepared a substitute therefor or
cure such defect, as the case may be, and thereafter the applicable Seller shall
upon receipt thereof cause the same to be duly recorded or filed, as
appropriate.
The parties acknowledge the obligation of each Seller pursuant to
Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the
Trustee, on or before the fifth Business Day after the Closing Date, five
limited powers of attorney substantially in the form attached as Exhibit C to
the Primary Servicing Agreement in favor of the Trustee and the Special Servicer
to empower the Trustee and, in the event of the failure or incapacity of the
Trustee, the Special Servicer, to submit for recording, at the expense of the
applicable Seller, any mortgage loan documents required to be recorded as
described in the preceding paragraph and any intervening assignments with
evidence of recording thereon that are required to be included in
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the Mortgage Files (so long as original counterparts have previously been
delivered to the Trustee). The Sellers agree to reasonably cooperate with the
Trustee and the Special Servicer in connection with any additional powers of
attorney or revisions thereto that are requested by such parties for purposes of
such recordation. The Trustee and each other party hereto agrees that no such
power of attorney shall be used with respect to any Mortgage Loan by or under
authorization by any party hereto except that to the extent that the absence of
a document described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to the related Seller, but
in no event earlier than 18 months from the Closing Date, and (ii) the date (if
any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The
Trustee shall submit such documents for recording, at the related Seller's
expense, after the periods set forth above provided, however, the Trustee shall
not submit such assignments for recording if the applicable Seller produces
evidence that it has sent any such assignment for recording and certifies that
it is awaiting its return from the applicable recording office.
(d) All relevant servicing or loan documents and records in the
possession of the Depositor or the Sellers that relate to the Mortgage Loans or
B Note and that are not required to be a part of a Mortgage File in accordance
with the definition thereof shall be delivered to the Master Servicer or the
Primary Servicer on its behalf, on or before the date that is 45 days following
the Closing Date and shall be held by the Master Servicer or Primary Servicer on
behalf of the Trustee in trust for the benefit of the Certificateholders. The
Depositor shall deliver or cause the related Seller to deliver to the Special
Servicer a copy of each Mortgage File to the extent that (i) such copy has not
previously been delivered to the Special Servicer and (ii) the Special Servicer
requests (in writing) such copy within 180 days following the Closing Date. The
Depositor shall deliver or cause the related Seller to deliver such copy within
a reasonable period following such request by the Special Servicer. To the
extent delivered to the Master Servicer or related Primary Servicer by the
related Seller, the Servicer Mortgage File, will include, to the extent required
to be (and actually) delivered to the applicable Seller pursuant to the
applicable Mortgage Loan documents, copies of the following items: the Mortgage
Note, any Mortgage, the Assignment of Leases and the Assignment of Mortgage, any
guaranty/indemnity agreement, any loan agreement, the insurance policies or
certificates (as applicable), the property inspection reports, any financial
statements on the property, any escrow analysis, the tax bills, the Appraisal,
the environmental report, the engineering report, the asset summary, financial
information on the Mortgagor/sponsor and any guarantors, any letters of credit,
any intercreditor agreement and any Environmental Insurance Policies. Delivery
of any of the foregoing documents to the applicable Primary Servicer (or
sub-servicer) shall be deemed delivery to the Master Servicer and satisfy the
Depositor's obligations under this Section 2.1(d). None of the Master Servicer,
the Special Servicer or any Primary Servicer shall have any liability for the
absence of any of the foregoing items from the Servicing Mortgage File if such
item was not delivered by the related Seller.
(e) In connection with the Depositor's assignment pursuant to Section
2.1(a) above, the Depositor shall deliver to the Trustee on or before the
Closing Date a copy of a fully executed counterpart of each Mortgage Loan
Purchase Agreement, as in full force and effect on the Closing Date, which
Mortgage Loan Purchase Agreements shall contain the representations
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and warranties made by the Sellers with respect to each related Mortgage Loan as
of the Closing Date.
(f) In connection herewith, the Depositor has acquired the Principal
Loans from Principal, the Xxxxx Fargo Loans from Xxxxx Fargo, the BSF Loans from
BSF and the MSDWMC Loans from MSDWMC. The Depositor will deliver the original
Mortgage Notes (or lost note affidavits with copies of the related Mortgage
Notes, as described in the definition of Mortgage File) relating to the
Principal Loans to the Trustee, endorsed as otherwise provided herein, to effect
the transfer to the Trustee of such Mortgage Notes and all related deeds of
trust, mortgages and other loan documents. The Depositor will deliver the
original Mortgage Notes (or lost note affidavits with copies of the related
Mortgage Notes, as described in the definition of Mortgage File) relating to the
Xxxxx Fargo Loans to the Trustee, endorsed as otherwise provided herein, to
effect the transfer to the Trustee of such Mortgage Notes and all related deeds
of trust, mortgages and other loan documents. The Depositor will deliver the
original Mortgage Notes (or lost note affidavits with copies of the related
Mortgage Notes, as described in the definition of Mortgage File) relating to the
BSF Loans to the Trustee, endorsed as otherwise provided herein, to effect the
transfer to the Trustee of such Mortgage Notes and all related deeds of trust,
mortgages and other loan documents. The Depositor will deliver the original
Mortgage Notes (or lost note affidavits with copies of the related Mortgage
Notes, as described in the definition of Mortgage File) relating to the MSDWMC
Loans to the Trustee, endorsed as otherwise provided herein, to effect the
transfer to the Trustee of such Mortgage Notes and all related deeds of trust,
mortgages and other loan documents. To avoid the unnecessary expense and
administrative inconvenience associated with the execution and recording of
multiple assignment documents, Principal, Xxxxx Fargo, BSF and MSDWMC, as
applicable, are required under the Mortgage Loan Purchase Agreements to deliver
Assignments of Mortgages and assignments of Assignments of Leases and
assignments of UCC financing statements naming the Trustee, on behalf of the
Certificateholders, as assignee. Notwithstanding the fact that the assignments
shall name the Trustee, on behalf of the Certificateholders, as the assignee,
the parties hereto acknowledge and agree that for all purposes the Principal
Loans shall be deemed to have been transferred from Principal to the Depositor,
the Xxxxx Fargo Loans shall be deemed to have been transferred from Xxxxx Fargo
to the Depositor, the BSF Loans shall be deemed to have been transferred from
BSF to the Depositor and the MSDWMC Loans shall be deemed to have been
transferred from MSDWMC to the Depositor, and all Mortgage Loans shall be deemed
to have been transferred from the Depositor to the Trustee on behalf of the
Certificateholders.
SECTION 2.2 ACCEPTANCE BY TRUSTEE. The Trustee will hold (i) the
documents constituting a part of the Mortgage Files delivered to it, (ii) the
REMIC I Regular Interests, and (iii) the REMIC II Regular Interests, in each
case, in trust for the use and benefit of all present and future
Certificateholders. To the extent that the contents of the Mortgage File for any
A Note relate to the corresponding B Note, the Trustee, or the Custodian on the
Trustee's behalf, will also hold such Mortgage File in trust for the benefit of
the holder of the related B Note.
On the Closing Date in respect of the Initial Certification, and within
75 days after the Closing Date in respect of the Final Certification, the
Trustee shall examine the Mortgage Files in its possession, and shall deliver to
the Depositor, the Sellers, the Master Servicer, the Special Servicer and the
Operating Adviser a certification (the "Initial Certification" and the
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"Final Certification", respectively, in the respective forms set forth as
Exhibit B-1 and Exhibit B-2 hereto), which may be in electronic format (i) in
the case of the Initial Certification, as to each Mortgage Loan listed in the
Mortgage Loan Schedule, except as may be specified in the schedule of exceptions
attached thereto, to the effect that: (A) all documents pursuant to clause (i)
of the definition of Mortgage File are in its possession, (B) such documents
have been reviewed by it and have not been materially mutilated, damaged,
defaced, torn or otherwise physically altered, and such documents relate to such
Mortgage Loan, and (C) each Mortgage Note has been endorsed as provided in
clause (i) of the definition of Mortgage File, and (ii) in the case of the Final
Certification, as to each Mortgage Loan listed in the Mortgage Loan Schedule,
except as may be specified in the schedule of exceptions attached thereto, to
the effect that: (A) all documents pursuant to clauses (i), (ii), (iv), (v),
(vi), (viii), (x) and (xii) of the definition of Mortgage File required to be
included in the Mortgage File, and with respect to all documents specified in
the other clauses of the definition of Mortgage File to the extent known by a
Responsible Officer of the Trustee to be required pursuant to this Agreement,
are in its possession, (B) such documents have been reviewed by it and have not
been materially mutilated, damaged, defaced, torn or otherwise physically
altered, and such documents relate to such Mortgage Loan, (C) based on its
examination and only as to the Mortgage Note and Mortgage, the street address of
the Mortgaged Property set forth in the Mortgage Loan Schedule respecting such
Mortgage Loan accurately reflects the information contained in the documents in
the Mortgage File, and (D) each Mortgage Note has been endorsed. Notwithstanding
the foregoing, the delivery of a commitment to issue a Title Insurance Policy in
lieu of the delivery of the actual Title Insurance Policy shall not be
considered a Material Document Defect with respect to any Mortgage File if such
actual Title Insurance Policy is delivered to the Trustee or a Custodian on its
behalf not later than the 180th day following the Closing Date. The Trustee
shall deliver to the Master Servicer, the Special Servicer, the Operating
Adviser and each Seller a copy of such Final Certification, which may be in
electronic format.
Within 360 days after the Cut-Off Date, the Trustee shall provide a
confirmation of receipt of recorded assignments of Mortgage (as described in the
definition of Mortgage File, with evidence of recording thereon) or otherwise
provide evidence of such recordation to the Master Servicer, the Special
Servicer, the Operating Advisor and each Seller, and if any recorded assignment
of Mortgage has not been received by the Trustee by such time, the Trustee shall
provide information in such confirmation on the status of missing assignments.
The Trustee agrees to use reasonable efforts to submit for recording any
unrecorded assignments of Mortgage that have been delivered to it (including
effecting such recordation process through or cooperating with the applicable
Seller) such recordation to be at the expense of the applicable Seller;
provided, however, that the Trustee shall not submit for recording any such
assignments if the applicable Seller produces evidence that it has sent any such
assignment for recording and is awaiting its return from the applicable
recording office. In giving the certifications required above, the Trustee shall
be under no obligation or duty to inspect, review or examine any such documents,
instruments, securities or other papers to determine whether they or the
signatures thereon are valid, legal, genuine, enforceable, in recordable form or
appropriate for their represented purposes, or that they are other than what
they purport to be on their face, or to determine whether any Mortgage File
should include any assumption agreement, modification agreement, consolidation
agreement, extension agreement, Assignment of Lease, ground lease, UCC financing
statement, guaranty, written assurance, substitution agreement, lock box
agreement, intercreditor agreement, management agreement or letter of credit.
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If any exceptions are noted on a schedule of exceptions attached to the
Final Certification, including exceptions resulting from the fact that the
recordation and/or filing has not been completed (based solely on the absence of
receipt by the Custodian (or the Trustee) of the particular documents showing
evidence of the recordation and/or filing), then the Custodian on behalf of the
Trustee (or the Trustee) shall continuously update such schedule of exceptions
to reflect receipt of any corrected documents, additional documents or
instruments or evidences of recordation and/or filing, as to each Mortgage Loan,
until the earliest of the following dates: (i) the date on which all such
exceptions are eliminated (any such elimination resulting from the fact that
recordation and/or filing has been completed shall be based solely on receipt by
the Custodian or the Trustee of the particular documents showing evidence of the
recordation and/or filing), (ii) the date on which all the affected Mortgage
Loans are removed from the Trust and (iii) the second anniversary of the Closing
Date, and shall provide such updated schedule of exceptions (which may be in
electronic format) to each of the Depositor, each Seller (as to its respective
Mortgage Loans only), the Master Servicer, the Special Servicer, the Operating
Adviser and the Paying Agent on or about the date that is 180 days after the
Closing Date and then again every 90 days thereafter (until the earliest date
specified above). Upon request, the Paying Agent shall promptly forward a copy
thereof to each Certificateholder in the Controlling Class and shall deliver or
make available a copy thereof to other Certificateholders pursuant to Section
5.4(d). Promptly, and in any event within two Business Days, following any
request therefor by the Depositor, the Master Servicer, the Special Servicer or
the Operating Adviser that is made later than two years following the Closing
Date, the Custodian (or the Trustee) shall deliver an updated schedule of
exceptions, which may be in electronic format (to the extent the prior schedule
showed exceptions), to the requesting Person and the Paying Agent, which shall
make available a copy thereof pursuant to Section 5.4(d).
The Trustee or its authorized agents shall retain possession and
custody of each Trustee Mortgage File in accordance with and subject to the
terms and conditions set forth herein.
SECTION 2.3 SELLERS' REPURCHASE OF MORTGAGE LOANS FOR MATERIAL DOCUMENT
DEFECTS AND MATERIAL BREACHES OF REPRESENTATIONS AND WARRANTIES.
(a) If any party hereto discovers that any document or documents
constituting a part of a Mortgage File has not been delivered as and when
required, has not been properly executed, or is defective on its face or
discovers or receives notice of a breach of any of the representations and
warranties relating to the Mortgage Loans required to be made by a Seller
regarding the characteristics of the Mortgage Loans and/or related Mortgaged
Properties as set forth in the related Mortgage Loan Purchase Agreements, and in
either case such defect or breach either (i) materially and adversely affects
the interests of the holders of the Certificates in the related Mortgage Loan,
or (ii) both (A) the document defect or breach materially and adversely affects
the value of the Mortgage Loan and (B) the Mortgage Loan is a Specially Serviced
Mortgage Loan or Rehabilitated Mortgage Loan (such a document defect described
in the preceding clause (i) or (ii), a "Material Document Defect", and such a
breach described in the preceding clause (i) or (ii), a "Material Breach") such
party shall give prompt written notice to the other parties hereto and to each
Rating Agency subject to the terms of the applicable Mortgage Loan Purchase
Agreement. Promptly (but in any event within three Business Days)
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upon becoming aware of any such Material Document Defect or Material Breach, the
Master Servicer shall, and the Special Servicer may, request that the related
Seller, not later than 85 days from such Seller's receipt of the notice of such
Material Document Defect or Material Breach, cure such Material Document Defect
or Material Breach, as the case may be, in all material respects; provided,
however, that if such Material Document Defect or Material Breach, as the case
may be, cannot be corrected or cured in all material respects within such 85-day
period, and such Material Document Defect or Material Breach would not cause the
Mortgage Loan to be other than a "qualified mortgage" (as defined in the Code)
but the related Seller is diligently attempting to effect such correction or
cure, as certified by such Seller in an Officer's Certificate delivered to the
Trustee, then the cure period will be extended for an additional 90 days unless,
solely in the case of a Material Document Defect, (x) the Mortgage Loan is then
a Specially Serviced Mortgage Loan and a Servicing Transfer Event has occurred
as a result of a monetary default or as described in clause (ii) or clause (v)
of the definition of "Servicing Transfer Event" and (y) the Material Document
Defect was identified in a certification delivered to the Seller by the Trustee
pursuant to Section 2.2 not less than 85 days prior to the delivery of the
notice of such Material Document Defect. The parties acknowledge that neither
delivery of a certification or schedule of exceptions to a Seller pursuant to
Section 2.2 or otherwise nor possession of such certification or schedule by the
Seller shall, in and of itself, constitute delivery of notice of any Material
Document Defect or knowledge or awareness by the Seller of any Material Document
Defect listed therein.
If any such Material Document Defect or Material Breach cannot be
corrected or cured in all material respects within the above cure periods, the
related Seller will be obligated, not later than the last day of such permitted
cure period, to (i) repurchase the affected Mortgage Loan or REO Mortgage Loan
from the Trust at the applicable Purchase Price in accordance with the related
Mortgage Loan Purchase Agreement, or (ii) if within the three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the related Mortgage Loan is a "defective obligation" within the
meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section
1.860G-2(f)), at the related Seller's option, without recourse (other than the
representations and warranties made with respect thereto), replace such Mortgage
Loan or REO Mortgage Loan with a Qualifying Substitute Mortgage Loan. If such
Material Document Defect or Material Breach would cause the Mortgage Loan to be
other than a "qualified mortgage" (as defined in the Code), then notwithstanding
the previous sentence, the repurchase must occur within 85 days from the date
the related Seller was notified of the defect and substitution must occur within
the sooner of (i) 85 days from the date the related Seller was notified of the
defect or (ii) two years from the Closing Date.
As to any Qualifying Substitute Mortgage Loan or Loans, the Master
Servicer shall not execute any instrument effecting the substitution unless the
related Seller has delivered to the Trustee for such Qualifying Substitute
Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the related Assignment
of Mortgage, and such other documents and agreements as are required by Section
2.1, with the Mortgage Note endorsed as required by Section 2.1 and the Master
Servicer shall be entitled to rely on statements and certifications from the
Trustee for this purpose. No substitution may be made in any calendar month
after the Determination Date for such month. Monthly payments due with respect
to Qualifying Substitute Mortgage Loans in the month of substitution shall not
be part of the Trust and will be retained by Master Servicer and
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remitted by the Master Servicer to the related Seller on the next succeeding
Distribution Date. For the month of substitution, distributions to
Certificateholders will include the Scheduled Payment due on the related Deleted
Mortgage Loan for such month and thereafter the related Seller shall be entitled
to retain all amounts received in respect of such Deleted Mortgage Loan.
The Master Servicer shall amend or cause to be amended the Mortgage
Loan Schedule to reflect the removal of such Deleted Mortgage Loan and the
substitution of the Qualifying Substitute Mortgage Loan or Loans and upon such
amendment the Master Servicer shall deliver or cause to be delivered such
amended Mortgage Loan Schedule to the Trustee, the Paying Agent and the Special
Servicer. Upon such substitution, the Qualifying Substitute Mortgage Loan or
Loans shall be subject to the terms of this Agreement in all respects. Upon
receipt of the Trustee Mortgage File pertaining to any Qualifying Substitute
Mortgage Loans, the Trustee shall release the Trustee Mortgage File relating to
such Deleted Mortgage Loan to the related Seller, and the Trustee (and the
Depositor, if necessary) shall execute and deliver such instruments of transfer
or assignment in the form presented to it, in each case without recourse,
representation or warranty, as shall be necessary to vest title (to the extent
that such title was transferred to the Trustee or the Depositor) in the related
Seller or its designee to any Deleted Mortgage Loan (including any property
acquired in respect thereof or any insurance policy proceeds relating thereto)
substituted for pursuant to this Section 2.3.
If (x) a Mortgage Loan is to be repurchased or replaced as contemplated
above (a "Defective Mortgage Loan"), (y) such Defective Mortgage Loan is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
("Crossed Mortgage Loans") and (z) the applicable document defect or breach does
not constitute a Material Document Defect or Material Breach, as the case may
be, as to such Crossed Mortgage Loans (without regard to this paragraph), then
the applicable document defect or breach (as the case may be) shall be deemed to
constitute a Material Document Defect or Material Breach (as the case may be) as
to each such Crossed Mortgage Loan for purposes of the above provisions, and the
related Seller shall be obligated to repurchase or replace each such Crossed
Mortgage Loan in accordance with the provisions above unless, in the case of
such breach or document defect, the Seller (A) provides a Nondisqualification
Opinion to the Trustee at the expense of the Seller and (B) both of the
following conditions would be satisfied if the related Seller were to repurchase
or replace only those Mortgage Loans as to which a Material Breach had occurred
without regard to this paragraph (the "Affected Loan(s)"): (i) the Debt Service
Coverage Ratio for all such other Mortgage Loans (excluding the Affected
Loan(s)) for the four calendar quarters immediately preceding the repurchase or
replacement is not less than the lesser of (A) 0.10x below the debt service
coverage ratio for all such other Mortgage Loans (including the Affected
Loan(s)) set forth in Appendix II to the Final Prospectus Supplement and (B) the
debt service coverage ratio for all such Crossed Mortgage Loans (including the
Affected Loan(s)) for the four preceding calendar quarters preceding the
repurchase or replacement, and (ii) the Loan-to-Value Ratio for all such Crossed
Mortgage Loans (excluding the Affected Loan(s)) is not greater than the greater
of (A) the loan-to-value ratio, expressed as a whole number (taken to one
decimal place), for all such Crossed Mortgage Loans (including the Affected
Loan(s)) set forth in Appendix II to the Final Prospectus Supplement plus 10%
and (B) the loan-to-value ratio for all such Crossed Mortgage Loans (including
the Affected Loan(s)), at the time of repurchase or replacement. The
determination of the Master Servicer as to whether the conditions set forth
above have been satisfied shall be conclusive and binding in the absence of
manifest error. The Master Servicer
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will be entitled to cause to be delivered, or direct the related Seller to (in
which case the related Seller shall) cause to be delivered to the Master
Servicer, an Appraisal of any or all of the related Mortgaged Properties for
purposes of determining whether the condition set forth in clause (ii) above has
been satisfied, in each case at the expense of the related Seller if the scope
and cost of the Appraisal is approved by the related Seller (such approval not
to be unreasonably withheld).
With respect to any Defective Mortgage Loan, to the extent that the
applicable Seller is required to repurchase or substitute for such Defective
Mortgage Loan (each, a "Repurchased Loan") in the manner prescribed above while
the Trustee continues to hold any Crossed Mortgage Loan, the applicable Seller
and the Depositor have agreed in the related Mortgage Loan Purchase Agreement to
forbear from enforcing any remedies against the other's Primary Collateral but
each is permitted to exercise remedies against the Primary Collateral securing
its respective Mortgage Loans, including with respect to the Trustee, the
Primary Collateral securing Mortgage Loans still held by the Trustee, so long as
such exercise does not impair the ability of the other party to exercise its
remedies against its Primary Collateral. If the exercise of remedies by one
party would impair the ability of the other party to exercise its remedies with
respect to the Primary Collateral securing the Mortgage Loan or Mortgage Loans
held by such party, then both parties have agreed to forbear from exercising
such remedies until the loan documents evidencing and securing the relevant
Mortgage Loans can be modified in a manner that complies with the applicable
Mortgage Loan Purchase Agreement to remove the threat of impairment as a result
of the exercise of remedies. Any reserve or other cash collateral or letters of
credit securing the Cross-Collateralized Loans shall be allocated between such
Mortgage Loans in accordance with the Mortgage Loan documents, or otherwise on a
pro rata basis based upon their outstanding Principal Balances. All other terms
of the Mortgage Loans shall remain in full force and effect, without any
modification thereof. The Mortgagors set forth on Schedule VIII hereto are
intended third-party beneficiaries of the provisions set forth in this paragraph
and the preceding paragraph. The provisions of this paragraph and the preceding
paragraph may not be modified with respect to any Mortgage Loan without the
related Mortgagor's consent.
Any of the following document defects shall be conclusively presumed
materially and adversely to affect the interests of Certificateholders in a
Mortgage Loan and be a Material Document Defect: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity that appears to be regular
on its face; (b) the absence from the Mortgage File of the original signed
Mortgage that appears to be regular on its face, unless there is included in the
Mortgage File a certified copy of the Mortgage by the local authority with which
the Mortgage was recorded; or (c) the absence from the Mortgage File of the item
called for by paragraph (viii) of the definition of Mortgage File. If any of the
foregoing Material Document Defects is discovered by the Custodian (or the
Trustee if there is no Custodian), the Trustee (or as set forth in Section
2.3(a), the Master Servicer) will take the steps described elsewhere in this
section, including the giving of notices to the Rating Agencies and the parties
hereto and making demand upon the related Seller for the cure of the document
defect or repurchase or replacement of the related Mortgage Loan.
If the related Seller disputes that a Material Document Defect or
Material Breach exists with respect to a Mortgage Loan or otherwise refuses (i)
to effect a correction or cure of such Material Document Defect or Material
Breach, (ii) to repurchase the affected Mortgage
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Loan from the Trust or (iii) to replace such Mortgage Loan with a Qualifying
Substitute Mortgage Loan, each in accordance with the related Mortgage Loan
Purchase Agreement, then provided that (x) the period of time provided for the
related Seller to correct, repurchase or cure has expired and (y) the Mortgage
Loan is then in default and is then a Specially Serviced Mortgage Loan, the
Special Servicer may, subject to the Servicing Standard, modify, workout or
foreclose, sell or otherwise liquidate (or permit the liquidation of) the
Mortgage Loan pursuant to Section 9.5, Section 9.12, Section 9.15 and Section
9.36, as applicable, hereof, while pursuing the repurchase claim. The related
Seller has acknowledged and agreed under the related Mortgage Loan Purchase
Agreement that any modification of the Mortgage Loan pursuant to a workout shall
not constitute a defense to any repurchase claim nor shall such modification and
workout change the Purchase Price due from the related Seller for any repurchase
claim. In the event of any such modification and workout, the related Seller has
agreed under the related Mortgage Loan Purchase Agreement to repurchase the
Mortgage Loan as modified and that the Purchase Price shall include any Work-Out
Fee paid to the Special Servicer up to the date of repurchase plus the present
value (calculated at a discount rate equal to the applicable Mortgage Rate) of
the Work-Out Fee that would have been payable to the Special Servicer in respect
of such Mortgage Loan if the Mortgage Loan performed in accordance with its
terms to its Maturity Date, provided that no amount shall be paid by the related
Seller in respect of any Work-Out Fee if a Liquidation Fee already comprises a
portion of the Purchase Price. The related Seller shall be notified promptly and
in writing by (i) the Trustee of any notice that it receives that an Option
Holder intends to exercise its Option to purchase the Mortgage Loan in
accordance with and as described in Section 9.36 hereof and (ii) the Special
Servicer of any offer that it receives to purchase the applicable REO Property,
each in connection with such liquidation. Upon the receipt of such notice by the
related Seller, the related Seller shall then have the right to purchase the
related Mortgage Loan or REO Property, as applicable, from the Trust at a
purchase price equal to, in the case of clause (i) of the immediately preceding
sentence, the Option Purchase Price or, in the case of clause (ii) of the
immediately preceding sentence, the amount of such offer. Notwithstanding
anything to the contrary contained herein or in the related Mortgage Loan
Purchase Agreement, the right of any Option Holder to purchase such Mortgage
Loan shall be subject and subordinate to the Seller's right to purchase such
Mortgage Loan as described in the immediately preceding sentence. The related
Seller shall have five (5) Business Days to notify the Trustee or the Special
Servicer, as applicable, of its intent to so purchase the Mortgage Loan or
related REO Property from the date that it was notified of such intention to
exercise such Option or of such offer. The Special Servicer shall be obligated
to provide the related Seller with any appraisal or other third party reports
relating to the Mortgaged Property within its possession to enable the related
Seller to evaluate the related Mortgage Loan or REO Property. Any sale of the
related Mortgage Loan, or foreclosure upon such Mortgage Loan and sale of the
related REO Property, to a Person other than the related Seller shall be without
(i) recourse of any kind (either expressed or implied) by such Person against
the related Seller and (ii) representation or warranty of any kind (either
expressed or implied) by the related Seller to or for the benefit of such
Person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim against
the Seller for repurchase of the REO Mortgage Loan or REO Property. In such an
event, the Master Servicer shall notify the related Seller of the discovery of
the Material Document Defect or Material Breach and the related
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Seller shall have 90 days to correct or cure such Material Document Defect or
Material Breach or purchase the REO Property at the Purchase Price. If the
related Seller fails to correct or cure the Material Document Defect or Material
Breach or purchase the REO Property, then the provisions above regarding notice
of offers related to such REO Property and the related Seller's right to
purchase such REO Property shall apply. If a court of competent jurisdiction
issues a final order that the related Seller is or was obligated to repurchase
the related Mortgage Loan or REO Mortgage Loan or the related Seller otherwise
accepts liability, then, after the expiration of any applicable appeal period,
but in no event later than the Termination of the Trust pursuant to Section 9.30
hereof, the related Seller will be obligated to pay to the Trust the difference
between any Liquidation Proceeds received upon such liquidation (including those
arising from any sale to the related Seller) and the Purchase Price; provided
that the prevailing party in such action shall be entitled to recover all costs,
fees and expenses (including reasonable attorneys fees) related thereto.
In connection with any sale or other liquidation of a Mortgage Loan or
REO Property as described in this Section 2.3, the Special Servicer shall not
receive a Liquidation Fee in connection with such sale or other liquidation
until a final determination has been made, as set forth in the preceding
paragraph, as to whether the related Seller is or was obligated to repurchase
such Mortgage Loan or REO Property. Upon such determination, the Special
Servicer shall be entitled to collect a Liquidation Fee (i) with respect to a
determination that the related Seller is or was obligated to repurchase, based
upon the full Purchase Price of the related Mortgage Loan, including all related
expenses up to the date the remainder of such Purchase Price is actually paid,
with such Liquidation Fee payable by the related Seller or (ii) with respect to
a determination that the related Seller is not or was not obligated to
repurchase (or the Trust decides that it will no longer pursue a claim against
the related Seller for repurchase), based upon the Liquidation Proceeds as
received upon the actual sale or liquidation of such Mortgage Loan, with such
amount to be paid from amounts in the Collection Account.
In any month in which the related Seller substitutes one or more
Qualifying Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
Master Servicer will determine the amount (if any) by which the aggregate
Principal Balance of all such Qualified Substitute Mortgage Loans as of the date
of substitution is less than the aggregate Principal Balance of all such Deleted
Mortgage Loans (in each case after application of scheduled principal portion of
the monthly payments received in the month of substitution). The Depositor shall
cause the related Seller to deposit the amount of such shortage into the
Certificate Account in the month of substitution, without any reimbursement
thereof. In addition, the Depositor shall cause the related Seller to deposit
into the Certificate Account, together with such shortage, if any, an amount
equal to interest on the Deleted Mortgage Loans at a rate equal to the sum of
the applicable Mortgage Rate from the Due Date as to which interest was last
paid up to the Due Date next succeeding such substitution together with the
amount of unreimbursed Servicing Advances, amounts required to be paid to the
Special Servicer but remaining unpaid or unreimbursed, and interest on
unreimbursed Advances with respect to such Deleted Mortgage Loans at the Advance
Rate. The Depositor shall cause the related Seller, in the case of the Mortgage
Loans, to give notice in writing (accompanied by an Officer's Certificate as to
the calculation of such shortage) to the Trustee, the Paying Agent and the
Master Servicer of such event which notice shall be accompanied by an Officers'
Certificate as to the calculation of such shortfall.
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If the affected Mortgage Loan is to be repurchased, the Master Servicer
shall designate the Certificate Account as the account to which funds in the
amount of the Purchase Price are to be wired. Any such purchase of a Mortgage
Loan shall be on a whole loan, servicing released basis.
(b) In connection with any repurchase of or substitution for a Mortgage
Loan contemplated by this Section 2.3, the Trustee, the Master Servicer and the
Special Servicer shall each tender to the related Seller, upon delivery to each
of them of a receipt executed by such Seller, all portions of the Mortgage File
and other documents pertaining to such Mortgage Loan possessed by it, and each
document that constitutes a part of the Mortgage File shall be endorsed or
assigned to the extent necessary or appropriate to the related Seller or its
designee in the same manner, and pursuant to appropriate forms of assignment,
substantially similar to the manner and forms pursuant to which documents were
previously assigned to the Trustee, but in any event, without recourse,
representation or warranty; provided that such tender by the Trustee shall be
conditioned upon its receipt from the Master Servicer of a Request for Release.
The Master Servicer shall, and is hereby authorized and empowered by the Trustee
to, prepare, execute and deliver in its own name, on behalf of the
Certificateholders and the Trustee or any of them, the endorsements and
assignments contemplated by this Section 2.3, and the Trustee shall execute and
deliver any powers of attorney necessary to permit the Master Servicer to do so.
The Master Servicer shall, and is also hereby authorized and empowered by the
Trustee to, reconvey to the related Seller any deposits then held in an Escrow
Account relating to the Mortgage Loan being repurchased or substituted for. The
Master Servicer shall indemnify the Trustee for all costs, liabilities and
expenses (including attorneys' fees) incurred by the Trustee in connection with
any negligent or intentional misuse of any such powers of attorney by the Master
Servicer.
(c) The Mortgage Loan Purchase Agreements provide the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Material Document Defect or Material Breach.
The parties hereunder understand that (i) Principal, as Seller under Mortgage
Loan Purchase Agreement III, will be providing the remedies with respect to the
Principal Loans, (ii) Xxxxx Fargo, as Seller under Mortgage Loan Purchase
Agreement II, will be providing the remedies with respect to the Xxxxx Fargo
Loans, (iii) BSF, as Seller under Mortgage Loan Purchase Agreement IV, will be
providing the remedies with respect to the BSF Loans and (iv) MSDWMC, as Seller
under Mortgage Loan Purchase Agreement V, will be providing the remedies with
respect to the MSDWMC Loans.
SECTION 2.4 REPRESENTATIONS AND WARRANTIES. The Depositor hereby
represents and warrants to the Master Servicer, the Special Servicer, the
Trustee (in its capacity as Trustee of the Trust), the Fiscal Agent and the
Paying Agent as of the Closing Date that:
(a) The Depositor is a corporation duly organized, validly existing and
in good standing under the laws governing its creation and existence and has
full corporate power and authority to own its property, to carry on its business
as presently conducted, to enter into and perform its obligations under this
Agreement, and to create the trust pursuant hereto;
(b) The execution and delivery by the Depositor of this Agreement have
been duly authorized by all necessary corporate action on the part of the
Depositor; neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein
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contemplated, nor compliance with the provisions hereof, will conflict with or
result in a breach of, or constitute a default under, (i) any of the provisions
of any law, governmental rule, regulation, judgment, decree or order binding on
the Depositor or its properties; (ii) the certificate of incorporation or bylaws
of the Depositor; or (iii) the terms of any indenture or other agreement or
instrument to which the Depositor is a party or by which it is bound; neither
the Depositor nor any of its Affiliates is a party to, bound by, or in breach of
or violation of any indenture or other agreement or instrument, or subject to or
in violation of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which
materially and adversely affects or to the best knowledge of the Depositor may
in the future materially and adversely affect (i) the ability of the Depositor
to perform its obligations under this Agreement or (ii) the business,
operations, financial condition, properties or assets of the Depositor;
(c) The execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(d) This Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms;
(e) There are no actions, suits or proceedings pending or, to the best
of the Depositor's knowledge, threatened or likely to be asserted against or
affecting the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the transactions
contemplated by this Agreement or (B) with respect to any other matter which in
the judgment of the Depositor will be determined adversely to the Depositor and
will, if determined adversely to the Depositor, materially and adversely affect
it or its business, assets, operations or condition, financial or otherwise, or
adversely affect its ability to perform its obligations under this Agreement;
and
(f) Immediately prior to the consummation of the transactions
contemplated in this Agreement, the Depositor had good title to and was the sole
owner of each Mortgage Loan free and clear of any and all adverse claims,
charges or security interests (including liens arising under the federal tax
laws or the Employee Retirement Income Security Act of 1974, as amended).
SECTION 2.5 CONVEYANCE OF INTERESTS. Effective as of the Closing Date,
the Depositor does hereby transfer, assign, set over, deposit with and otherwise
convey to the Trustee, without recourse, in trust, all the right, title and
interest of the Depositor in and to (i) the REMIC I Regular Interests in
exchange for the REMIC II Interests and (ii) the REMIC II Regular Interests in
exchange for the REMIC III Certificates.
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ARTICLE III
THE CERTIFICATES
SECTION 3.1 THE CERTIFICATES.
(a) The Certificates shall be in substantially the forms set forth in
the Exhibits attached hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement or as may in the reasonable judgment of the Trustee or the Depositor
be necessary, appropriate or convenient to comply, or facilitate compliance,
with applicable laws, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange on which any of the
Certificates may be listed, or as may, consistently herewith, be determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
The Definitive Certificates shall be printed, typewritten, lithographed
or engraved or produced by any combination of these methods or may be produced
in any other manner permitted by the rules of any securities exchange on which
any of the Certificates may be listed, all as determined by the officers
executing such Certificates, as evidenced by their execution thereof.
(b) The Class A Certificates will be issuable in denominations of
$25,000 initial Certificate Balance and in any whole dollar denomination in
excess thereof. The Class X, Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class J, Class K, Class L, Class M and Class N Certificates will be
issuable in denominations of $100,000 initial Certificate Balance or initial
Notional Amount (as applicable) or in any whole dollar denomination in excess
thereof. The Class R-I, Class R-II and Class R-III Certificates will be issued
in minimum Percentage Interests of 10% and integral multiples of 10% in excess
thereof.
(c) Each Certificate shall, on original issue, be executed by the
Certificate Registrar and authenticated by the Authenticating Agent upon the
order of the Depositor. No Certificate shall be entitled to any benefit under
this Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Authenticating Agent by
manual signature, and such certification upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates to the
Authenticating Agent for authentication and the Authenticating Agent shall
authenticate and deliver such Certificates as in this Agreement provided and not
otherwise. In the event that additional Certificates need to be prepared at any
time subsequent to the Closing Date, the Depositor shall prepare, or cause to be
prepared, deliver, or cause to be delivered, at the Depositor's expense, any
such additional Certificates. With respect to the Class A, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M and Class N Certificates that are issued in book-entry form, on the
Closing Date, the Authenticating Agent upon the order of the Depositor shall
authenticate Book-Entry Certificates
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that are issued to a Clearing Agency or its nominee as provided in Section 3.7
against payment of the purchase price thereof. With respect to the Class G,
Class H, Class J, Class K, Class L, Class M and Class N Certificates that are
issued in definitive form, on the Closing Date, the Authenticating Agent upon
the order of the Depositor shall authenticate Definitive Certificates that are
issued to the registered holder thereof against payment of the purchase price
thereof.
SECTION 3.2 REGISTRATION. The Paying Agent shall be the initial
Certificate Registrar in respect of the Certificates and the Certificate
Registrar shall maintain books for the registration and for the transfer of
Certificates (the "Certificate Register"). The Certificate Registrar may resign
or be discharged or removed by the Paying Agent or the Certificateholders, and a
new successor may be appointed, in accordance with the procedures and
requirements set forth in Sections 7.6 and 7.7 hereof with respect to the
resignation, discharge or removal of the Paying Agent and the appointment of a
successor Paying Agent. The Certificate Registrar may appoint, by a written
instrument delivered to the Holders and the Trustee, any trust company to act as
co-registrar under such conditions as the Certificate Registrar may prescribe;
provided that the Certificate Registrar shall not be relieved of any of its
duties or responsibilities hereunder by reason of such appointment.
SECTION 3.3 TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) A Certificate may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the Corporate Trust Office,
duly endorsed or accompanied by a written instrument of transfer duly executed
by such Holder or such Holder's duly authorized attorney in such form as shall
be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, and subject to the
restrictions set forth in the other subsections of this Section 3.3, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver to the transferee, one or more new Certificates of the
same Class and evidencing, in the aggregate, the same aggregate initial
Certificate Balance, initial Notional Amount or Percentage Interest, as the case
may be, as the Certificate being transferred. No service charge shall be made to
a Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
or transfer of Certificates. The Certificate Registrar may decline to accept any
request for a registration of transfer of any Certificate during the period
beginning five calendar days prior to any Distribution Date.
(b) A Certificate may be exchanged by the Holder thereof for any number
of new Certificates of the same Class, in authorized denominations, representing
in the aggregate the same initial Certificate Balance, initial Notional Amount
or Percentage Interest, as the case may be, as the Certificate surrendered, upon
surrender of the Certificate to be exchanged at the offices of the Certificate
Registrar duly endorsed or accompanied by a written instrument of exchange duly
executed by such Holder or such Holder's duly authorized attorney in such form
as is satisfactory to the Certificate Registrar. Certificates delivered upon any
such exchange will evidence the same obligations, and will be entitled to the
same rights and privileges, as the Certificates surrendered. No service charge
shall be made to a Certificateholder for any exchange of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any exchange of
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Certificates. Whenever any Certificates are so surrendered for exchange, the
Certificate Registrar shall execute and the Authenticating Agent shall
authenticate, date and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(c) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless such
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of any Non-Registered Certificate held
as a Definitive Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of such Non-Registered Certificate by the Depositor
or one of its Affiliates), then the Certificate Registrar shall refuse to
register such transfer unless it receives (and upon receipt, may conclusively
rely upon) either: (i) a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit D-1 hereto
and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached either as Exhibit D-2A hereto or as Exhibit
D-2B hereto; or (ii) an Opinion of Counsel satisfactory to the Certificate
Registrar to the effect that such transfer shall be made without registration
under the Securities Act, together with the written certification(s) as to the
facts surrounding such transfer from the Certificateholder desiring to effect
such transfer and/or such Certificateholder's prospective Transferee on which
such Opinion of Counsel is based (such Opinion of Counsel shall not be an
expense of the Trust or of the Depositor, the Master Servicer, the Special
Servicer, the Paying Agent, the Trustee or the Certificate Registrar in their
respective capacities as such). If a transfer of any interest in a
Non-Registered Certificate that constitutes a Book-Entry Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance of the Certificates or a transfer of any interest in
such Non-Registered Certificate by the Depositor or any of its Affiliates), then
the Certificate Owner desiring to effect such transfer shall be required to
obtain either (i) a certificate from such Certificate Owner's prospective
Transferee substantially in the form attached as Exhibit D-3A hereto or as
Exhibit D-3B hereto, or (ii) an Opinion of Counsel to the effect that such
transfer may be made without registration under the Securities Act. None of the
Depositor, the Fiscal Agent, the Paying Agent, the Trustee, the Master Servicer,
the Special Servicer or the Certificate Registrar is obligated to register or
qualify any Class of Non-Registered Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under this
Agreement to permit the transfer of any Certificate. Any Certificateholder or
Certificate Owner desiring to effect a transfer of Non-Registered Certificates
or interests therein shall, and does hereby agree to, indemnify the Depositor,
each Underwriter, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar against any
liability that may result if the transfer is not exempt from such registration
or qualification or is not made in accordance with such federal and state laws.
(d) No transfer of a Non-Investment Grade Certificate or Residual
Certificate or any interest therein shall be made (A) to any employee benefit
plan or other retirement arrangement, including individual retirement accounts
and annuities, Xxxxx plans and collective investment funds and separate accounts
in which such plans, accounts or arrangements are invested, including, without
limitation, insurance company general accounts, that is subject to Title I of
ERISA or Section 4975 of the Code or any applicable federal, state or local law
("Similar Laws") materially similar to the foregoing provisions of ERISA or the
Code (each, a
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"Plan"), (B) in book-entry form to an Institutional Accredited Investor who is
not also a Qualified Institutional Buyer or (C) to any Person who is directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with "plan assets" of a Plan, unless: (i)
in the case of a Non-Investment Grade Certificate that constitutes a Book-Entry
Certificate and is being sold to a Qualified Institutional Buyer, the purchase
and holding of such Certificate or interest therein qualifies for the exemptive
relief available under Sections I and III of U.S. Department of Labor Prohibited
Transaction Class Exemption ("PTCE") 95-60; or (ii) in the case of a
Non-Investment Grade Certificate held as a Definitive Certificate, the
prospective Transferee provides the Certificate Registrar with a certification
of facts and an Opinion of Counsel which establish to the satisfaction of the
Certificate Registrar that such transfer will not constitute or result in a
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of
the Code or subject the Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicer, the Special Servicer or the Certificate Registrar to
any obligation in addition to those undertaken in this Agreement. Each Person
who acquires any Non-Investment Grade Certificate or Residual Certificate or
interest therein (unless it shall have acquired such Certificate or interest
therein from the Depositor or an Affiliate thereof or unless it shall have
delivered to the Certificate Registrar the certification of facts and Opinion of
Counsel referred to in clause (ii) of the preceding sentence) shall be required
to deliver to the Certificate Registrar (or, in the case of an interest in a
Non-Investment Grade Certificate that constitutes a Book-Entry Certificate, to
the Certificate Owner that is transferring such interest) a certification to the
effect that: (i) it is neither a Plan nor any Person who is directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with "plan assets" of a Plan; or (ii)
that, in the case of a Non-Investment Grade Certificate, the purchase and
holding of such Certificate or interest therein by such person qualifies for the
exemptive relief available under Sections I and III of PTCE 95-60 or another
exemption from the "prohibited transactions" rules under ERISA by the U.S.
Department of Labor or similar exemption under Similar Laws.
(e) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Paying Agent under clause (F) below to deliver
payments to a Person other than such Person and to have irrevocably authorized
the Certificate Registrar under clause (G) below to negotiate the terms of any
mandatory sale and to execute all instruments of Transfer and to do all other
things necessary in connection with any such sale. The rights of such person
acquiring any Ownership Interest in a Residual Certificate are expressly subject
to the following provisions:
(A) (1) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Permitted
Transferee and a United States Tax Person and shall promptly
notify the Certificate Registrar of any change or impending
change in its status as a Permitted Transferee and (2) each
Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Qualified Institutional Buyer
and shall promptly notify the Certificate Registrar of any
change or impending change in its status as a Qualified
Institutional Buyer.
(B) In connection with any proposed Transfer of any
Ownership Interest in a Residual Certificate, the Certificate
Registrar shall require delivery to
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it, and no Transfer of any Residual Certificate shall be
registered until the Certificate Registrar receives, an
affidavit and agreement substantially in the form attached
hereto as Exhibit E-1 (a "Transfer Affidavit and Agreement")
from the proposed Transferee, in form and substance
satisfactory to the Certificate Registrar, representing and
warranting, among other things, that such Transferee is a
Permitted Transferee, that it is a Qualified Institutional
Buyer, that it is not acquiring its Ownership Interest in the
Residual Certificate that is the subject of the proposed
Transfer as a nominee, trustee or agent for any Person that
is not a Permitted Transferee, that for so long as it retains
its Ownership Interest in a Residual Certificate, it will
endeavor to remain a Permitted Transferee, that it is a
United States Person, that it has historically paid its debts
as they have come due and will continue to do so in the
future, that it understands that its tax liability with
respect to the Residual Certificates may exceed cash flows
thereon and it intends to pay such taxes as they come due,
that it will provide the Certificate Registrar with all
information necessary to determine that the applicable
paragraphs of Section 13 of such Transfer Affidavit and
Agreement are true or that Section 13 is not applicable, and
that it has reviewed the provisions of this Section 3.3(e)
and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit
and Agreement by a proposed Transferee under clause (B)
above, if the Certificate Registrar has actual knowledge that
the proposed Transferee is not a Permitted Transferee or is
not a United States Person, no Transfer of an Ownership
Interest in a Residual Certificate to such proposed
Transferee shall be effected.
(D) Each Person holding or acquiring an Ownership
Interest in a Residual Certificate shall agree (1) to require
a Transfer Affidavit and Agreement from any prospective
Transferee to whom such Person attempts to transfer its
Ownership Interest in such Residual Certificate and (2) not
to transfer its Ownership Interest in such Residual
Certificate unless it provides to the Certificate Registrar a
certificate substantially in the form attached hereto as
Exhibit E-2 among other things stating that (x) it has
conducted a reasonable investigation of the financial
condition of the proposed Transferee and, as a result of the
investigation, the Transferor determines that the proposed
Transferee had historically paid its debts as they came due
and found no significant evidence that the proposed
Transferee will not continue to pay its debts as they come
due in the future and, (y) it has no actual knowledge that
such prospective Transferee is not a Permitted Transferee or
is not a United States Person.
(E) Each Person holding or acquiring an Ownership
Interest in a Residual Certificate that is a "pass-through
interest holder" within the meaning of temporary Treasury
Regulation Section 1.67-3T(a)(2)(i)(A) or is holding an
Ownership Interest in a Residual Certificate on behalf of a
"pass-through interest holder", by purchasing an Ownership
Interest in such Certificate, agrees to give the Certificate
Registrar written notice of its status as such immediately
upon holding or acquiring such Ownership Interest in a
Residual Certificate.
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(F) If any purported Transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this
Section 3.3(e) or if any Holder of a Residual Certificate
shall lose its status as a Permitted Transferee or a United
States Person, then the last preceding Holder of such
Residual Certificate that was in compliance with the
provisions of this Section 3.3(e) shall be restored, to the
extent permitted by law, to all rights and obligations as
Holder thereof retroactive to the date of registration of
such Transfer of such Residual Certificate. None of the
Trustee, the Fiscal Agent, the Master Servicer, the Special
Servicer, the Certificate Registrar or the Paying Agent shall
be under any liability to any Person for any registration of
Transfer of a Residual Certificate that is in fact not
permitted by this Section 3.3(e) or for making any payments
due on such Certificate to the Holder thereof or for taking
any other action with respect to such Holder under the
provisions of this Agreement.
(G) If any purported Transferee shall become a Holder of
a Residual Certificate in violation of the restrictions in
this Section 3.3(e), or if any Holder of a Residual
Certificate shall lose its status as a Permitted Transferee
or a United States Person, and to the extent that the
retroactive restoration of the rights and obligations of the
prior Holder of such Residual Certificate as described in
clause (F) above shall be invalid, illegal or unenforceable,
then the Trustee shall have the right, without notice to the
Holder or any prior Holder of such Residual Certificate, but
not the obligation, to sell or cause to be sold such Residual
Certificate to a purchaser selected by the Trustee on such
terms as the Trustee may choose. Such noncomplying Holder
shall promptly endorse and deliver such Residual Certificate
in accordance with the instructions of the Certificate
Registrar. Such purchaser may be the Certificate Registrar
itself or any Affiliate of the Certificate Registrar. The
proceeds of such sale, net of the commissions (which may
include commissions payable to the Certificate Registrar or
its Affiliates), expenses and taxes due, if any, will be
remitted by the Certificate Registrar to such noncomplying
Holder. The terms and conditions of any sale under this
clause (G) shall be determined in the sole discretion of the
Certificate Registrar, and the Certificate Registrar shall
not be liable to any Person having an Ownership Interest in a
Residual Certificate as a result of its exercise of such
discretion.
The Master Servicer, on behalf of the Paying Agent, shall make available, upon
written request from the Paying Agent, to the Internal Revenue Service and those
Persons specified by the REMIC Provisions, all information necessary to compute
any tax imposed (A) as a result of the Transfer of an Ownership Interest in a
Residual Certificate to any Person who is not a Permitted Transferee, including
the information described in Treasury Regulations Sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual
Certificate and (B) as a result of any regulated investment company, real estate
investment trust, common trust fund, partnership, trust, estate or organization
described in Section 1381 of the Code that holds an Ownership Interest in a
Residual Certificate having as among its record holders at any time any Person
which is not a Permitted Transferee. The Person holding such Ownership Interest
shall be responsible for the reasonable compensation of the Master Servicer and
the Paying Agent for providing such information.
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The provisions of this Section 3.3(e) may be modified, added to or
eliminated, provided that there shall have been delivered to the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer, the Operating
Adviser and the Depositor the following:
(A) written notification from each Rating Agency to the effect
that the modification of, addition to or elimination of such provisions
will not cause such Rating Agency to qualify, downgrade or withdraw its
then current rating of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory
to the Trustee, the Certificate Registrar and the Depositor, to the
effect that such modification of, addition to or elimination of such
provisions will not cause any of REMIC I, REMIC II or REMIC III to (x)
cease to qualify as a REMIC or (y) be subject to an entity-level tax
caused by the Transfer of any Residual Certificate to a Person which is
not a Permitted Transferee, or cause a Person other than the
prospective Transferee to be subject to a tax caused by the Transfer of
a Residual Certificate to a Person which is not a Permitted Transferee.
(f) None of the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Paying Agent or the Certificate Registrar shall have any
liability to the Trust arising from a transfer of any Certificate in reliance
upon a certification, ruling or Opinion of Counsel described in this Section
3.3; provided, however, that the Certificate Registrar shall not register the
transfer of a Residual Certificate if it has actual knowledge that the proposed
transferee does not meet the qualifications of a permitted Holder of a Residual
Certificate as set forth in Section 3.3(e); provided, further, that the
Certificate Registrar shall not register the transfer of a Noneconomic Residual
Interest if it shall have received notice that the Transferor has determined, as
a result of the investigation under Section 3.3(e)(D), that the proposed
Transferee has not paid its debts as they came due or that it will not pay its
debts as they come due in the future. The Certificate Registrar shall have no
obligation or duty to monitor, determine or inquire as to compliance with any
restriction on transfer or exchange of Certificates or any interest therein
imposed under this Article III or under applicable law other than to require
delivery of the certifications and/or opinions described in this Article III;
provided, however, that the Certificate Registrar shall not register the
transfer of a Residual Certificate if it has actual knowledge that the proposed
transferee does not meet the qualifications of a permitted Holder of a Residual
Certificate as set forth in Section 3.3(e). The Certificate Registrar shall have
no liability for transfers (including without limitation transfers made through
the book-entry facilities of the Depository or between or among Participants or
Certificate Owners) made in violation of applicable restrictions, provided that
the Certificate Registrar has satisfied its duties expressly set forth in
Sections 3.3(c), 3.3(d) and 3.3(e).
(g) All Certificates surrendered for transfer and exchange shall be
physically cancelled by the Certificate Registrar, and the Certificate Registrar
shall hold such cancelled Certificates in accordance with its standard
procedures.
(h) The Certificate Registrar shall provide the Master Servicer, the
Special Servicer and the Depositor, upon written request, with an updated copy
of the Certificate Register within a reasonable period of time following receipt
of such request.
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(i) Unless and until it is exchanged in whole for the individual
Certificates represented thereby, a Global Certificate representing all of the
Certificates of a Class may not be transferred, except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Clearing Agency or a nominee of such successor
Clearing Agency, and no such transfer to any such other Person may be
registered; provided that this subsection (i) shall not prohibit any transfer of
a Certificate of a Class that is issued in exchange for a Global Certificate of
the same Class pursuant to Section 3.9 below. Nothing in this subsection (i)
shall prohibit or render ineffective any transfer of a beneficial interest in a
Global Certificate effected in accordance with the other provisions of this
Section 3.3.
SECTION 3.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If (A)
any mutilated Certificate is surrendered to the Certificate Registrar, or the
Certificate Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate and (B) except in the case of a mutilated
Certificate so surrendered, there is delivered to the Certificate Registrar such
security or indemnity as may be required by it to save it harmless, then, in the
absence of notice to the Certificate Registrar that such Certificate has been
acquired by a bona fide purchaser, the Certificate Registrar shall execute, and
the Authenticating Agent shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and interest in the Trust. In connection with the
issuance of any new Certificate under this Section 3.4, the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Certificate Registrar)
connected therewith. Any replacement Certificate issued pursuant to this Section
3.4 shall constitute complete and indefeasible evidence of ownership in the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION 3.5 PERSONS DEEMED OWNERS. Prior to presentation of a
Certificate for registration of transfer, the Master Servicer, the Special
Servicer, the Fiscal Agent, the Trustee, the Operating Adviser, the Paying Agent
and any agent of the Master Servicer, the Special Servicer, the Fiscal Agent,
the Paying Agent, the Trustee or the Operating Adviser may treat the Person in
whose name any Certificate is registered as of the related Record Date as the
owner of such Certificate for the purpose of receiving distributions as provided
in this Agreement and for all other purposes whatsoever, and neither the Master
Servicer, the Special Servicer, the Fiscal Agent, the Trustee, the Paying Agent,
the Operating Adviser nor any agent of the Master Servicer, the Special
Servicer, the Fiscal Agent, the Trustee, the Paying Agent or the Operating
Adviser shall be affected by any notice to the contrary.
SECTION 3.6 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
If three or more Certificateholders, a Certificateholder holding all
the Certificates of any Class of Certificates, the Master Servicer, the Special
Servicer, the Paying Agent, the Trustee, the Operating Adviser or the Depositor
(A) request in writing from the Certificate Registrar a list of the names and
addresses of Certificateholders and (B) in the case of a request by
Certificateholders, state that such Certificateholders desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates, then the Certificate Registrar shall, within ten
Business Days after the receipt of such request, afford
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such Certificateholders, the Master Servicer, the Special Servicer, the
Depositor, the Paying Agent, the Trustee or the Operating Adviser, as
applicable, access during normal business hours to a current list of the
Certificateholders. The expense of providing any such information requested by
such Person shall be borne by the party requesting such information and shall
not be borne by the Certificate Registrar or the Trustee. Every
Certificateholder, by receiving and holding a Certificate, agrees that the
Certificate Registrar and the Trustee shall not be held accountable by reason of
the disclosure of any such information as to the list of the Certificateholders
hereunder, regardless of the source from which such information was derived.
SECTION 3.7 BOOK-ENTRY CERTIFICATES.
(a) The Class A-1, Class A-2, Class X-1, Class X-2, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M
and Class N Certificates, upon original issuance, each shall be issued in the
form of one or more Certificates representing the Book-Entry Certificates, to be
delivered to the Certificate Registrar, as custodian for The Depository Trust
Company (the "Depository"), the initial Clearing Agency, by, or on behalf of,
the Depositor, provided, that any Non-Investment Grade Certificates sold to
Institutional Accredited Investors who are not Qualified Institutional Buyers
will be issued as Definitive Certificates. The Certificates shall initially be
registered on the Certificate Register in the name of Cede & Co., the nominee of
the Depository, as the initial Clearing Agency, and no Certificate Owner will
receive a definitive certificate representing such Certificate Owner's interest
in the Certificates, except as provided in Section 3.9. Unless and until
Definitive Certificates have been issued to the Certificate Owners pursuant to
Section 3.9:
(i) the provisions of this Section 3.7 shall be in full force
and effect with respect to each such Class;
(ii) the Depositor, the Master Servicer, the Paying Agent, the
Certificate Registrar and the Trustee may deal with the Clearing Agency for all
purposes (including the making of distributions on the Certificates) as the
authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.7
conflict with any other provisions of this Agreement, the provisions of this
Section 3.7 shall control with respect to each such Class; and
(iv) the rights of the Certificate Owners of each such Class
shall be exercised only through the Clearing Agency and the applicable
Participants and shall be limited to those established by law and agreements
between such Certificate Owners and the Clearing Agency and/or the Participants.
Pursuant to the Depository Agreement, unless and until Certificates are issued
pursuant to Section 3.9, the initial Clearing Agency will make book-entry
transfers among the Participants and receive and transmit distributions of
principal and interest on the related Certificates to such Participants.
(b) For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of the
Certificates evidencing a specified percentage of the aggregate unpaid principal
amount of Certificates, such direction or
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consent may be given by the Clearing Agency at the direction of Certificate
Owners owning Certificates evidencing the requisite percentage of principal
amount of Certificates. The Clearing Agency may take conflicting actions with
respect to the Certificates to the extent that such actions are taken on behalf
of the Certificate Owners.
(c) The Certificates of each Class (other than the Residual
Certificates) initially sold in reliance on Rule 144A or with respect to the
Class D, Class E and Class F Certificates sold to Institutional Accredited
Investors shall be represented by the Rule 144A-IAI Global Certificate for such
Class, which shall be deposited with the Certificate Registrar, as custodian for
the Depository and registered in the name of Cede & Co. as nominee of the
Depository. The Class G, Class H, Class J, Class K, Class L, Class M and Class N
Certificates initially sold to Institutional Accredited Investors shall
represented by IAI Definitive Certificates for such Class. The Certificates
evidenced by any Rule 144A-IAI Global Certificate or IAI Definitive Certificate
shall be subject to certain restrictions on transfer as set forth in Section 3.3
hereof and shall bear legend(s) regarding such restrictions described herein.
(d) The Certificates of each Class (other than the Residual
Certificates) initially sold in offshore transactions in reliance on Regulation
S shall be represented by the Regulation S Temporary Global Certificate for such
Class, which shall be deposited with the Certificate Registrar, as custodian for
the Depository and registered in the name of Cede & Co. as nominee of the
Depository. Not earlier than the Release Date, beneficial interests in any
Regulation S Temporary Global Certificate shall be exchangeable for beneficial
interests in the Regulation S Permanent Global Certificate for such Class.
Beneficial interests in any Regulation S Temporary Global Certificate may be
held only through Euroclear or Clearstream; provided, however, that such
interests may be exchanged for interests in the Rule 144A-IAI Global Certificate
for such Class in accordance with the certification requirements described in
Section 3.7(f). The Regulation S Permanent Global Certificates shall be
deposited with the Certificate Registrar, as custodian for the Depository and
registered in the name of Cede & Co. as nominee of the Depository.
On or prior to the Release Date and on or prior to any Distribution
Date occurring prior to the Release Date, each Certificate Owner of a Regulation
S Temporary Global Certificate that holds a beneficial interest therein on the
Release Date or on any such Distribution Date, as the case may be, must deliver
to Euroclear or Clearstream (as applicable) a Regulation S Certificate;
provided, however, that any Certificate Owner that holds a beneficial interest
in a Regulation S Temporary Global Certificate on the Release Date or on any
such Distribution Date that has previously delivered a Regulation S Certificate
to Euroclear or Clearstream with respect to its interest therein does not need
to deliver any subsequent Regulation S Certificate (unless the certificate
previously delivered is no longer true as of such subsequent date, and such
Certificate Owner must promptly notify Euroclear or Clearstream, as applicable,
thereof). Euroclear or Clearstream, as applicable, shall be required to promptly
deliver to the Certificate Registrar a certificate substantially in the form of
Exhibit I hereto to the effect that it has received the requisite Regulation S
Certificates for each such Class, and no Certificate Owner (or transferee from
any such Certificate Owner) shall be entitled to receive an interest in the
Regulation S Permanent Global Certificate for such Class or any payment or
principal or interest with respect to its interest in such Regulation S
Temporary Global Certificate prior to the Certificate Registrar receiving such
certification from Euroclear or Clearstream with respect to the portion of the
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Regulation S Temporary Global Certificate owned by such Certificate Owner (and,
with respect to an interest in the applicable Regulation S Permanent Global
Certificate, prior to the Release Date). After the Release Date, distributions
due with respect to any beneficial interest in a Regulation S Temporary Global
Certificate shall not be made to the holders of such beneficial interests unless
exchange for a beneficial interest in the related Regulation S Permanent Global
Certificate is improperly withheld or refused. No interest in a Regulation S
Global Certificate may be held by or transferred to a U.S. Person (as defined in
Regulation S) except for exchanges for a beneficial interest in the Rule
144A-IAI Global Certificate for such Class as described in Section 3.7(f).
(e) Except in the limited circumstances described below in Section 3.9,
owners of beneficial interests in Global Certificates shall not be entitled to
receive physical delivery of Definitive Certificates. The Certificates are not
issuable in bearer form. Upon the issuance of each Global Certificate, the
Depository or its custodian shall credit, on its internal system, the respective
principal amount of the individual beneficial interests represented by such
Global Certificate to the accounts of Persons who have accounts with such
Depository. Such accounts initially shall be designated by or on behalf of the
Underwriters and Placement Agents. Ownership of beneficial interests in a Global
Certificate shall be limited to Customers or Persons who hold interests directly
or indirectly through Customers. Ownership of beneficial interests in the Global
Certificates shall be shown on, and the transfer of that ownership shall be
effected only through, records maintained by the Depository or its nominee (with
respect to interests of Customers) and the records of Customers (with respect to
interests of Persons other than Customers).
So long as the Depository, or its nominee, is the registered holder of
a Global Certificate, the Depository or such nominee, as the case may be, shall
be considered the sole owner and holder of the Certificates represented by such
Global Certificate for all purposes under this Agreement and the Certificates,
including, without limitation, obtaining consents and waivers thereunder, and
the Trustee, the Paying Agent and the Certificate Registrar shall not be
affected by any notice to the contrary. Except under the circumstance described
in Section 3.9, owners of beneficial interests in a Global Certificate will not
be entitled to have any portions of such Global Certificate registered in their
names, will not receive or be entitled to receive physical delivery of
Definitive Certificates in certificated form and shall not be considered the
owners or holders of the Global Certificate (or any Certificates represented
thereby) under this Agreement or the Certificates. In addition, no Certificate
Owner of an interest in a Global Certificate shall be able to transfer that
interest except in accordance with the Depository's applicable procedures (in
addition to those under this Agreement and, if applicable, those of Euroclear
and Clearstream).
(f) Any holder of an interest in a Regulation S Global Certificate
shall have the right, upon prior written notice to the Certificate Registrar,
Euroclear or Clearstream, as applicable, and the Depository, in the form of an
Exchange Certification (substantially in the form of Exhibit H attached hereto),
to exchange all or a portion of such interest (in authorized denominations as
set forth in Section 3.1(b)) for an equivalent interest in the Rule 144A-IAI
Global Certificate for such Class in connection with a transfer of its interest
therein to a transferee that is eligible to hold an interest in such Rule
144A-IAI Global Certificate as described herein; provided, however, that no
Exchange Certification shall be required if any such
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exchange occurs after the Release Date. Any holder of an interest in the Rule
144A-IAI Global Certificate shall have the right, upon prior written notice to
the Certificate Registrar, the Depository and Euroclear or Clearstream, as
applicable, in the form of an Exchange Certification, to exchange all or a
portion of such interest (in authorized denominations as set forth in Section
3.1(b)) for an equivalent interest in the Regulation S Global Certificate for
such Class in connection with a transfer of its interest therein to a transferee
that is eligible to hold an interest in such Regulation S Global Certificate as
described herein; provided, however, that if such exchange occurs prior to the
Release Date, the transferee shall acquire an interest in a Regulation S
Temporary Global Certificate only and shall be subject to all of the
restrictions associated therewith described in Section 3.7(d). Following receipt
of any Exchange Certification or request for transfer, as applicable, by the
Certificate Registrar: (i) the Certificate Registrar shall endorse the schedule
to any Global Certificate representing the Certificate or Certificates being
exchanged to reduce the stated principal amount of such Global Certificate by
the denominations of the Certificate or Certificates for which such exchange is
to be made, and (ii) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates for which such
exchange is to be made to increase the stated principal amount of such Global
Certificate by the denominations of the Certificate or Certificates being
exchanged therefor. The form of the Exchange Certification shall be available
from the Certificate Registrar.
SECTION 3.8 NOTICES TO CLEARING AGENCY. Whenever notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to the related
Certificateholders pursuant to Section 3.9, the Paying Agent shall give all such
notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency which shall give such notices and
communications to the related Participants in accordance with its applicable
rules, regulations and procedures.
SECTION 3.9 DEFINITIVE CERTIFICATES.
(a) Definitive Certificates will be issued to the owners of beneficial
interests in a Global Certificate or their nominees if (i) the Clearing Agency
notifies the Depositor and the Certificate Registrar in writing that the
Clearing Agency is unwilling or unable to continue as depositary for such Global
Certificate and a qualifying successor depositary is not appointed by the
Depositor within 90 days thereof, (ii) the Trustee has instituted or caused to
be instituted or has been directed to institute any judicial proceeding in a
court to enforce the rights of the Certificateholders under this Agreement and
under such Global Certificate and the Trustee has been advised by counsel that
in connection with such proceeding it is necessary or advisable for the Trustee
or its custodian to obtain possession of such Global Certificate, or (iii) after
the occurrence of an Event of Default, Certificate Owners representing a
majority in aggregate outstanding Certificate Balance of such Global Certificate
advise the Clearing Agency through the Participants in writing (and the Clearing
Agency so advises the Depositor, the Certificate Registrar and the Master
Servicer in writing) that the continuation in global form of the Certificates
being evidenced by such Global Certificate is no longer in their best interests;
provided, that under no circumstances will Definitive Certificates be issued to
Certificate Owners of the Regulation S Temporary Global Certificate. Upon notice
of the occurrence of any of the events described in the preceding sentence, the
Certificate Registrar shall notify the
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Clearing Agency and request the Clearing Agency to notify all Certificate
Owners, through the applicable Participants, of the occurrence of the event and
of the availability of Definitive Certificates to such Certificate Owners
requesting the same. Upon surrender to the Certificate Registrar of the Global
Certificates by the Clearing Agency, accompanied by registration instructions
from the Clearing Agency for registration, the Certificate Registrar shall
execute, and the Authenticating Agent shall authenticate and deliver, the
Definitive Certificates. None of the Depositor, the Trustee, the Paying Agent,
the Certificate Registrar or the Fiscal Agent shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates, all references herein to obligations imposed upon or to be
performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Certificate Registrar, to the extent applicable with respect to
such Definitive Certificates, and the Certificate Registrar and the Trustee and
the Paying Agent shall recognize the Holders of Definitive Certificates as
Certificateholders hereunder.
(b) Distributions of principal and interest on the Definitive
Certificates shall be made by the Paying Agent directly to holders of Definitive
Certificates in accordance with the procedures set forth in this Agreement.
ARTICLE IV
ADVANCES
P&I Advances and Servicing Advances shall be made as provided herein by
the Master Servicer and, if the Master Servicer does not make such Advances, by
the Trustee, and if the Trustee does not make such Advances, by the Fiscal Agent
except to the extent that the Master Servicer, the Trustee or the Fiscal Agent,
as applicable, determines in accordance with Section 4.4 below, that any such
Advance would be a Nonrecoverable Advance.
SECTION 4.1 P&I ADVANCES BY MASTER SERVICER.
(a) On or prior to the Advance Report Date, the Master Servicer shall
notify the Trustee and the Paying Agent if the P&I Advance Amount for such
Distribution Date is greater than zero, and the Master Servicer shall make a P&I
Advance in respect of each Mortgage Loan of such amount no later than the Master
Servicer Remittance Date. It is understood that the obligation of the Master
Servicer to make such P&I Advances is mandatory and shall apply through any
court appointed stay period or similar payment delay resulting from any
insolvency of the Mortgagor or related bankruptcy, notwithstanding any other
provision of this Agreement. Notwithstanding the foregoing, the Master Servicer
shall not be required to make such P&I Advance, if the Master Servicer
determines, in accordance with Section 4.4 below, that any such P&I Advance
would be a Nonrecoverable Advance. Such determination shall be conclusive and
binding on the Trustee, the Fiscal Agent and the Certificateholders. The Master
Servicer, the Trustee and the Fiscal Agent shall not make P&I Advances with
respect to any B Note under this Agreement. The Special Servicer shall not make
P&I Advances under this Agreement. If the Master Servicer fails to make a P&I
Advance, it shall promptly notify the Trustee and the Paying Agent of such
failure.
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(b) If the Master Servicer determines that there is a P&I Advance
Amount for a Distribution Date, the Master Servicer shall on the Master Servicer
Remittance Date either (A) deposit in the Certificate Account an amount equal to
the P&I Advance Amount or (B) utilize funds in the Certificate Account being
held for future distributions or withdrawals to make such Advance. Any funds
being held in the Certificate Account for future distribution or withdrawal and
so used shall be replaced by the Master Servicer from its own funds by deposit
in the Certificate Account on or before any future Master Servicer Remittance
Date to the extent that funds in the Certificate Account on such Master Servicer
Remittance Date shall be less than payments to the Paying Agent or other Persons
required to be made on such date.
SECTION 4.2 SERVICING ADVANCES. The Master Servicer and, if the
Master Servicer does not, the Trustee to the extent the Trustee receives written
notice from the Paying Agent that such Advance has not been made by the Master
Servicer, and if the Trustee does not, the Fiscal Agent (if the Fiscal Agent has
knowledge that such Advance is required to be made), shall make Servicing
Advances to the extent provided in this Agreement, except to the extent that the
Master Servicer, the Trustee or the Fiscal Agent, as applicable, determines in
accordance with Section 4.4 below, that any such Advance would be a
Nonrecoverable Advance. Such determination by the Master Servicer shall be
conclusive and binding on the Trustee, the Fiscal Agent and the
Certificateholders and, in the case of any B Note, the holder of the B Note. The
Special Servicer shall not be required to make Servicing Advances under this
Agreement. Promptly after discovering that the Master Servicer has failed to
make a Servicing Advance that the Master Servicer is required to make hereunder,
the Paying Agent shall promptly notify the Trustee in writing of the failure by
the Master Servicer to make such Servicing Advance.
SECTION 4.3 ADVANCES BY THE TRUSTEE AND THE FISCAL AGENT.
(a) To the extent that the Master Servicer fails to make a P&I Advance
by the Master Servicer Remittance Date (other than a P&I Advance that the Master
Servicer determines is a Nonrecoverable Advance), the Trustee shall make such
P&I Advance to the extent the Trustee receives written notice from the Paying
Agent not later than 10:00 a.m. (New York City time) on the Distribution Date
that such Advance has not been made by the Master Servicer on the Master
Servicer Remittance Date unless the Trustee determines that such P&I Advance, if
made, would be a Nonrecoverable Advance. To the extent that the Trustee fails to
make a P&I Advance required to be made by the Trustee hereunder on the
Distribution Date (other than a P&I Advance that the Master Servicer or the
Trustee determines is a Nonrecoverable Advance), the Fiscal Agent will advance
such P&I Advance unless the Fiscal Agent determines that any such P&I Advance,
if made, would be a Nonrecoverable Advance. To the extent that the Fiscal Agent
is required hereunder to make P&I Advances on the Mortgage Loans, it shall
deposit the amount thereof in the Distribution Account by 1:00 p.m. (New York
City time) on each such Distribution Date. The Paying Agent shall notify the
Trustee in writing as soon as practicable, but not later than 10:00 a.m. (New
York City time) on the Distribution Date if the Master Servicer has failed to
make a P&I Advance.
(b) To the extent that the Master Servicer fails to make a Servicing
Advance by the date such Servicing Advance is required to be made (other than a
Servicing Advance that the Master Servicer determines is a Nonrecoverable
Advance), and a Responsible Officer of the Trustee receives notice thereof, the
Trustee shall make such Servicing Advance promptly, but in
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any event, not later than five Business Days after notice thereof in accordance
with Section 4.2, unless the Trustee determines that such Servicing Advance, if
made, would be a Nonrecoverable Advance.
(c) To the extent that the Trustee fails to make a Servicing Advance
required to be made by the Trustee hereunder by the later of (i) the date such
Servicing Advance is required to be made and (ii) five Business Days after the
date the Trustee has received notice pursuant to subsection (b) above, that such
Servicing Advance has not been made by the Master Servicer (other than a
Servicing Advance that the Master Servicer or the Trustee has determined to be a
Nonrecoverable Advance), the Fiscal Agent will advance such Servicing Advance,
unless the Fiscal Agent determines that such Servicing Advance, if made, would
be a Nonrecoverable Advance.
The initial Trustee's failure to make any Advance required to be made
by it hereunder shall not constitute a default by the initial Trustee hereunder
if the initial Fiscal Agent makes such Advance at or before the time when the
Trustee was required to make such Advance.
SECTION 4.4 EVIDENCE OF NONRECOVERABILITY.
If the Master Servicer determines at any time, in its sole discretion,
exercised in good faith, that any Advance previously made or proposed Advance,
if made, would constitute a Nonrecoverable Advance, such determination shall be
evidenced by an Officer's Certificate delivered to the Trustee, the Paying
Agent, the Special Servicer, the Operating Adviser and the Rating Agencies by
the Business Day prior to the Distribution Date. Such Officer's Certificate
shall set forth the reasons for such determination of nonrecoverability,
together with, to the extent such information, report or document is in the
Master Servicer's possession, any related financial information such as related
income and expense statements, rent rolls, occupancy status, property
inspections and any Appraisals performed within the last 12 months on the
Mortgaged Property, and, if such reports are used by the Master Servicer to
determine that any P&I Advance or Servicing Advance, as applicable, would be a
Nonrecoverable Advance, any engineers' reports, environmental surveys, internal
final valuations or other information relevant thereto which support such
determination. If the Trustee or the Fiscal Agent, as applicable, determines at
any time that any portion of an Advance previously made or a portion of a
proposed Advance that the Trustee or the Fiscal Agent, as applicable, is
required to make pursuant to this Agreement, if made, would constitute a
Nonrecoverable Advance, such determination shall be evidenced by an Officer's
Certificate of a Responsible Officer of the Trustee or the Fiscal Agent, as
applicable, delivered to the Depositor, the Master Servicer, the Special
Servicer, the Paying Agent and the Operating Adviser similar to the Officer's
Certificate of the Master Servicer described in the prior sentence. The Trustee
and the Fiscal Agent shall not be required to make an Advance that the Master
Servicer has previously determined to be a Nonrecoverable Advance.
Notwithstanding any other provision of this Agreement, none of the Master
Servicer, the Trustee or the Fiscal Agent shall be obligated to, nor shall it,
make any Advance or make any payment that is designated in this Agreement to be
an Advance, if it determines in its good faith judgment that such Advance or
such payment (including interest accrued thereon at the Advance Rate) would be a
Nonrecoverable Advance. The Master Servicer's determination in accordance with
the above provisions shall be conclusive and binding on the Trustee, the Fiscal
Agent, the Paying Agent and the Certificateholders.
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SECTION 4.5 INTEREST ON ADVANCES; CALCULATION OF OUTSTANDING ADVANCES
WITH RESPECT TO A MORTGAGE LOAN. Any unreimbursed Advance funded from the
Master Servicer's, the Trustee's or the Fiscal Agent's own funds shall accrue
interest on a daily basis, at a per annum rate equal to the Advance Rate, from
and including the date such Advance was made to but not including the date on
which such Advance has been reimbursed; provided, however, that neither the
Master Servicer nor any other party shall be entitled to interest accrued on the
amount of any P&I Advance with respect to any Mortgage Loan for the period
commencing on the date of such P&I Advance and ending on the day on which the
grace period applicable to the related Mortgagor's obligation to make the
related Scheduled Payment expires pursuant to the related Mortgage Loan
documents. For purposes of determining whether a P&I Advance is outstanding,
amounts collected with respect to a particular Mortgage Loan or REO Property and
treated as collections of principal or interest shall be applied first to
reimburse the earliest P&I Advance and then each succeeding P&I Advance to the
extent not inconsistent with Section 4.6. The Master Servicer shall use efforts
consistent with the Servicing Standard to collect (but shall have no further
obligation to collect), with respect to the Mortgage Loans that are not
Specially Serviced Mortgage Loans, Late Fees and default interest from the
Mortgagor in an amount sufficient to pay Advance Interest. The Master Servicer
shall be entitled to retain Late Fees and default interest paid by any Mortgagor
during a Collection Period with respect to any Mortgage Loan (other than a
Specially Serviced Mortgage Loan, as to which the Special Servicer shall retain
Late Fees and default interest with respect to such Specially Serviced Mortgage
Loan, subject to the offsets set forth below) as additional servicing
compensation only to the extent such Late Fees and default interest exceed
Advance Interest on a "pool basis" for all Mortgage Loans other than Specially
Serviced Mortgaged Loans. The Special Servicer, with respect to any Specially
Serviced Mortgage Loan, shall (i) pay from any Late Fees and default interest
collected from such Specially Serviced Mortgage Loan (a) any outstanding and
unpaid Advance Interest to the Master Servicer, the Trustee or the Fiscal Agent,
as applicable and (b) to the Trust, any losses previously incurred by the Trust
with respect to such Specially Serviced Mortgage Loan and (ii) retain any
remaining portion of such Late Fees and default interest as additional Special
Servicer Compensation.
SECTION 4.6 REIMBURSEMENT OF ADVANCES AND ADVANCE INTEREST.
(a) Advances made with respect to each Mortgage Loan or B Note or
Specially Serviced Mortgage Loan or REO Property (including Advances later
determined to be Nonrecoverable Advances) and Advance Interest thereon shall be
reimbursed to the extent of the amounts identified to be applied therefor in
Section 5.2. The aggregate of the amounts available to repay Advances and
Advance Interest thereon pursuant to Section 5.2 collected in any Collection
Period with respect to Mortgage Loans or any B Note or Specially Serviced
Mortgage Loans or REO Property shall be an "Available Advance Reimbursement
Amount."
(b) To the extent that Advances have been made on the Mortgage Loans,
any B Note, any Specially Serviced Mortgage Loans or any REO Mortgage Loans, the
Available Advance Reimbursement Amount with respect to any Determination Date
shall be applied to reimburse (i) the Fiscal Agent for any Advances outstanding
to the Fiscal Agent with respect to any of such Mortgage Loans, B Note,
Specially Serviced Mortgage Loans or REO Mortgage Loans, plus any Advance
Interest owed to the Fiscal Agent with respect to such Advances and
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then (ii) the Trustee for any Advances outstanding to the Trustee with respect
to any of such Mortgage Loans, B Note, Specially Serviced Mortgage Loans or REO
Mortgage Loans, plus any Advance Interest owed to the Trustee with respect to
such Advances and then (iii) the Master Servicer for any Advances outstanding to
the Master Servicer with respect to any of such Mortgage Loans, B Note,
Specially Serviced Mortgage Loans or REO Mortgage Loans, plus any Advance
Interest owed to the Master Servicer with respect to such Advances. To the
extent that any Advance Interest payable to the Master Servicer, the Trustee or
the Fiscal Agent with respect to a Specially Serviced Mortgage Loan or REO
Mortgage Loan cannot be recovered from the related Mortgagor, the amount of such
Advance Interest shall be payable to the Fiscal Agent, the Trustee or the Master
Servicer, as the case may be, from amounts on deposit in the Certificate Account
(or sub-account thereof) or the Distribution Account pursuant to Section 5.2(a)
or Section 5.3(b)(ii). The Master Servicer's, the Fiscal Agent's and the
Trustee's right of reimbursement under this Agreement for Advances shall be
prior to the rights of the Certificateholders to receive any amounts recovered
with respect to such Mortgage Loans or REO Mortgage Loans.
(c) Advance Interest will be paid to the Fiscal Agent, the Trustee
and/or the Master Servicer (in accordance with the priorities specified in the
preceding paragraph) first, from Late Fees and default interest collected from
the Mortgage Loans during the Collection Period during which the related Advance
is reimbursed, and then from Excess Liquidation Proceeds then available prior to
payment from any other amounts. Late Fees and default interest will be applied
on a "pool basis" for non-Specially Serviced Mortgage Loans and on a
"loan-by-loan basis" (under which Late Fees and default interest will be offset
against the Advance Interest arising only from that particular Specially
Serviced Mortgage Loan) for Specially Serviced Mortgage Loans, as the case may
be, to the payment of Advance Interest on all Advances on such non-Specially
Serviced Mortgage Loans or such Specially Serviced Mortgage Loans, as the case
may be, then being reimbursed.
(d) Amounts applied to reimburse Advances shall first be applied to
reduce Advance Interest thereon that was not paid from amounts specified in the
preceding paragraph (c) and then to reduce the outstanding amount of such
Advances.
(e) To the extent that the Special Servicer incurs out-of-pocket
expenses, in accordance with the Servicing Standard, in connection with
servicing Specially Serviced Mortgage Loans, the Master Servicer shall reimburse
the Special Servicer for such expenditures within 30 days after receiving an
invoice and a report from the Special Servicer, subject to Section 4.4. With
respect to each Collection Period, the Special Servicer shall deliver such
invoice and report to the Master Servicer by the following Determination Date.
All such amounts reimbursed by the Master Servicer shall be a Servicing Advance.
In the event that the Master Servicer fails to reimburse the Special Servicer
hereunder or the Master Servicer determines that such Servicing Advance was or,
if made, would be a Nonrecoverable Advance and the Master Servicer does not make
such payment, the Special Servicer shall notify the Master Servicer and the
Paying Agent in writing of such nonpayment and the amount payable to the Special
Servicer and shall be entitled to receive reimbursement from the Trust as an
Additional Trust Expense. The Master Servicer, the Paying Agent and the Trustee
shall have no obligation to verify the amount payable to the Special Servicer
pursuant to this Section 4.6(e)
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and circumstances surrounding the notice delivered by the Special Servicer
pursuant to this Section 4.6(e).
SECTION 4.7 FISCAL AGENT TERMINATION EVENT. "Fiscal Agent Termination
Event," wherever used herein, means any one of the following events:
(i) Any failure by the Fiscal Agent to remit to the Paying
Agent when due any required Advances; or
(ii) A decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Fiscal Agent and such decree or
order shall have remained in force undischarged or unstayed for a period of 60
days; or
(iii) The Fiscal Agent shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings or relating to the Fiscal Agent or relating
to all or substantially all of its property; or
(iv) The Fiscal Agent shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take advantage of
any applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the foregoing; or
(v) The long-term unsecured debt of the Fiscal Agent is rated
below "AA-" by S&P or "Aa2" by Xxxxx'x; or
(vi) With respect to the initial Fiscal Agent, LaSalle Bank
National Association resigns or is removed pursuant to Section 7.6 hereof.
SECTION 4.8 PROCEDURE UPON TERMINATION EVENT.
(a) On the date specified in a written notice of termination given to
the Fiscal Agent pursuant to Section 7.6(c), all authority, power and rights of
the Fiscal Agent under this Agreement, whether with respect to the Mortgage
Loans or otherwise, shall terminate and a successor Fiscal Agent, if necessary,
shall be appointed by the Trustee, with the consent of the Depositor; provided
that the successor Fiscal Agent meets the eligibility requirements set forth in
Section 7.5. The Fiscal Agent agrees to cooperate with the Trustee in effecting
the termination of the Fiscal Agent's responsibilities and rights hereunder as
Fiscal Agent.
(b) Notwithstanding the termination of its activities as Fiscal Agent,
the terminated Fiscal Agent shall continue to be entitled to reimbursement to
the extent provided in Section 4.6 but only to the extent such reimbursement
relates to the period up to and including the date on which the Fiscal Agent's
termination is effective. The Fiscal Agent shall be
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reimbursed for all amounts owed to it hereunder on or prior to the effective
date of its termination from amounts on deposit in the Certificate Account.
SECTION 4.9 MERGER OR CONSOLIDATION OF FISCAL AGENT. Any Person into
which the Fiscal Agent may be merged or consolidated, or any Person resulting
from any merger, conversion, other change in form or consolidation to which the
Fiscal Agent shall be a party, or any Person succeeding to the business of the
Fiscal Agent, shall be the successor of the Fiscal Agent hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided that
(i) the successor to the Fiscal Agent or resulting Person shall have a net worth
of not less than $100,000,000, (ii) such successor or resulting Person shall be
satisfactory to the Trustee, (iii) such successor or resulting Person shall
execute and deliver to the Trustee an agreement, in form and substance
satisfactory to the Trustee, which contains an assumption by such Person of the
due and punctual performance and observance of each covenant and condition to be
performed or observed by the Fiscal Agent under this Agreement from and after
the date of such agreement, (iv) the successor or surviving entity meets the
eligibility requirements set forth in Section 7.5, and (v) the Fiscal Agent
shall deliver to the Trustee an Officer's Certificate and an Opinion of Counsel
acceptable to the Trustee (which opinion shall be at the expense of the Fiscal
Agent) stating that all conditions precedent to such action under this Section
4.9 have been completed and such action is permitted by and complies with the
terms of this Section 4.9.
SECTION 4.10 LIMITATION ON LIABILITY OF THE FISCAL AGENT AND OTHERS.
Neither the Fiscal Agent nor any of the directors, officers, employees, agents
or Controlling Persons of the Fiscal Agent shall be under any liability to the
Certificateholders, the Depositor or the Trustee for any action taken or for
refraining from the taking of any action in good faith, and using reasonable
business judgment pursuant to this Agreement, or for errors in judgment;
provided that this provision shall not protect the Fiscal Agent or any such
Person against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in its performance of duties under
this Agreement. The Fiscal Agent and any director, officer, employee or agent of
the Fiscal Agent may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Fiscal Agent shall not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to its obligations
under this Agreement. In such event, all legal expenses and costs of such action
shall be expenses and costs of the Trust, and the Fiscal Agent shall be entitled
to be reimbursed therefor as Servicing Advances as provided by this Agreement.
The provisions of this Section 4.10 shall survive the resignation or removal of
the Fiscal Agent and the termination of this Agreement.
SECTION 4.11 INDEMNIFICATION OF FISCAL AGENT. The Fiscal Agent and
each of its directors, officers, employees, agents and Controlling Persons shall
be indemnified by the Trust and held harmless against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments
and any other costs, liabilities, fees and expenses incurred in connection with
any legal action relating to this Agreement other than any loss, liability or
expense incurred by reason of the Fiscal Agent's willful misfeasance, bad faith
or negligence in the performance of duties hereunder. The Depositor shall
indemnify and hold harmless the Fiscal Agent, its directors, officers,
employees, agents and Controlling Persons from and against any loss, claim,
damage or liability, joint or several, and any action in respect thereof, to
which the
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Fiscal Agent, its directors, officers, employees, agents or Controlling Person
may become subject under the 1933 Act, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon any untrue statement or
alleged untrue statement of a material fact contained in the Private Placement
Memorandum, Preliminary Prospectus Supplement, Final Prospectus Supplement or
Prospectus or arises out of, or is based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein in light of the circumstances under which they were
made, not misleading and shall reimburse the Fiscal Agent, its directors,
officers, employees, agents or Controlling Person for any legal and other
expenses reasonably incurred by the Fiscal Agent or any such director, officer,
employee, agent or Controlling Person in investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action. The Fiscal
Agent shall immediately notify the Depositor, the Sellers, the Paying Agent, the
Special Servicer, the Master Servicer and the Trustee if a claim is made by a
third party with respect to this Section 4.11 entitling the Fiscal Agent, its
directors, officers, employees, agents or Controlling Person to indemnification
hereunder, whereupon the Depositor shall assume the defense of any such claim
(with counsel reasonably satisfactory to the Fiscal Agent) and pay all expenses
in connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Depositor shall not affect
any rights the Fiscal Agent, its directors, officers, employees, agents or
Controlling Person may have to indemnification under this Section 4.11, unless
the Depositor's defense of such claim is materially prejudiced thereby. The
indemnification provided herein shall survive the termination of this Agreement
and the resignation or removal of the Fiscal Agent.
ARTICLE V
ADMINISTRATION OF THE TRUST
SECTION 5.1 COLLECTIONS.
(a) On or prior to the Closing Date, the Master Servicer shall open, or
cause to be opened, and shall thereafter maintain, or cause to be maintained, a
separate account or accounts, which accounts must be Eligible Accounts, in the
name of "Xxxxx Fargo Bank, National Association, as Master Servicer for LaSalle
Bank National Association, as Trustee for the Holders of Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2002-TOP6" (the "Certificate Account"). On or prior to the Closing Date, the
Master Servicer shall open, or cause to be opened, and shall maintain, or cause
to be maintained an additional separate account or accounts in the name of
"Xxxxx Fargo Bank, National Association, as Master Servicer for LaSalle Bank
National Association, as Trustee for the Holders of Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2002-TOP6" (the "Interest Reserve Account").
(b) On or prior to the date the Master Servicer shall first deposit
funds in a Certificate Account or the Interest Reserve Account, as the case may
be, the Master Servicer shall give to the Paying Agent and the Trustee prior
written notice of the name and address of the depository institution(s) at which
such accounts are maintained and the account number of such accounts. The Master
Servicer shall take such actions as are necessary to cause the depository
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institution holding the Certificate Account and the Interest Reserve Account to
hold such account in the name of the Master Servicer as provided in Section
5.1(a), subject to the Master Servicer's (or its Sub-Servicer's) right to direct
payments and investments and its rights of withdrawal under this Agreement.
(c) The Master Servicer shall deposit, or cause to be deposited, into
the Certificate Account on the Business Day following receipt (or, in the case
of an inadvertent failure to make such deposit on the Business Day following
receipt, within 3 Business Days of discovery of such failure and in the case of
unscheduled remittances of principal or interest, on the Business Day following
identification of the proper application of such amounts), the following amounts
received by it (including amounts remitted to the Master Servicer by the Special
Servicer from an REO Account pursuant to Section 9.14), other than in respect of
interest and principal on the Mortgage Loans or any B Note due on or before the
Cut-Off Date which shall be remitted to the Depositor (provided that the Master
Servicer (I) may retain amounts otherwise payable to the Master Servicer as
provided in Section 5.2(a) rather than deposit them into the Certificate
Account, (II) shall, rather than deposit them in the Certificate Account,
directly remit to the Primary Servicer the applicable Primary Servicing Fees
payable as provided in Section 5.2(a)(iv)(unless already retained by the
applicable Primary Servicer), and (III) shall, rather than deposit them in the
Certificate Account, directly remit the Excess Servicing Fees to the holders
thereof as provided in Section 5.2(a)(iv))(unless already retained by the
applicable holder of the excess servicing rights)):
(A) Principal: all payments on account of principal, including
Principal Prepayments, the principal component of Scheduled Payments, and any
Late Collections in respect thereof, on the Mortgage Loans and any B Note;
(B) Interest: subject to subsection (d) hereof, all payments
on account of interest on the Mortgage Loans and any B Note (minus any portion
of any such payment that is allocable to the period prior to the Cut-Off Date
which shall be remitted to the Depositor and excluding Interest Reserve Amounts
to be deposited in the Interest Reserve Account pursuant to Section 5.1(d)
below);
(C) Liquidation Proceeds: all Liquidation Proceeds with
respect to the Mortgage Loans and any B Note;
(D) Insurance Proceeds: all Insurance Proceeds other than
proceeds to be applied to the restoration or repair of the property subject to
the related Mortgage or released to the related Mortgagor in accordance with the
Servicing Standard, which proceeds shall be deposited by the Master Servicer
into an Escrow Account and not deposited in the Certificate Account;
(E) Condemnation Proceeds: all Condemnation Proceeds other
than proceeds to be applied to the restoration or repair of the property subject
to the related Mortgage or released to the related Mortgagor in accordance with
the Servicing Standard, which proceeds shall be deposited by the Master Servicer
into an Escrow Account and not deposited in the Certificate Account;
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(F) REO Income: all REO Income received from the Special
Servicer;
(G) Investment Losses: any amounts required to be deposited by
the Master Servicer pursuant to Section 5.1(e) in connection with losses
realized on Eligible Investments with respect to funds held in the Certificate
Account and amounts required to be deposited by the Special Servicer pursuant to
Section 9.14(b) in connection with losses realized on Eligible Investments with
respect to funds held in the REO Account;
(H) Advances: all P&I Advances unless made directly to the
Distribution Account; and
(I) Other: all other amounts, including Prepayment Premiums,
required to deposited in the Certificate Account pursuant to this Agreement,
including Purchase Proceeds of any Mortgage Loans repurchased by a Seller or
substitution shortfall amounts (as described in the fifth paragraph of Section
2.3(a)) paid by a Seller in connection with the substitution of any Qualifying
Substitute Mortgage Loans, and with respect to any B Note, all other amounts
received pursuant to the cure and purchase rights set forth in the applicable
Intercreditor Agreement.
With respect to any A/B Mortgage Loan, the Master Servicer shall
establish and maintain one or more sub-accounts of the Certificate Account (each
an "A/B Loan Custodial Account") into which the Master Servicer shall deposit
any amounts described above that are required to be paid to the holder of the
related B Note pursuant to the terms of the related Intercreditor Agreement, in
each case on the same day as the deposit thereof into the Certificate Account.
Any A/B Loan Custodial Account shall be held in trust for the benefit of the
holder of the related B Note and shall not be part of any REMIC Pool.
Remittances from any REO Account to the Master Servicer for deposit in
the Certificate Account shall be made by the Special Servicer no later than the
Special Servicer Remittance Date.
(d) The Master Servicer, with respect to each Distribution Date
occurring in January (other than in any leap year) and February of each year,
shall deposit in the Interest Reserve Account in respect of each Interest
Reserve Loan, an amount equal to one day's interest at the related REMIC I Net
Mortgage Rate on the Scheduled Principal Balance of such Mortgage Loan as of the
Due Date in the month in which such Distribution Date occurs, to the extent a
Scheduled Payment or P&I Advance is timely made in respect thereof for such Due
Date (all amounts so deposited in any consecutive January and February in
respect of each Interest Reserve Loan, the "Interest Reserve Amount"). For
purposes of determining amounts to be deposited into the Interest Reserve
Account, the REMIC I Net Mortgage Rate used in this calculation for those months
will be calculated without regard to any adjustment for Interest Reserve Amounts
or the interest accrual basis as described in the proviso to the definition of
"REMIC I Net Mortgage Rate."
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(e) Funds in the Certificate Account (including any A/B Loan Custodial
Accounts) and Interest Reserve Account may be invested and, if invested, shall
be invested by, and at the risk of, the Master Servicer in Eligible Investments
selected by the Master Servicer which shall mature, unless payable on demand,
not later than the Business Day immediately preceding the next Master Servicer
Remittance Date, and any such Eligible Investment shall not be sold or disposed
of prior to its maturity unless payable on demand. All such Eligible Investments
shall be made in the name of "LaSalle Bank National Association, as Trustee for
the Holders of the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2002-TOP6 and the holder of any
related B Note as their interests may appear." None of the Depositor, the
Mortgagors, the Paying Agent or the Trustee shall be liable for any loss
incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the Master Servicer as additional servicing
compensation and shall be subject to its withdrawal at any time from time to
time. The amount of any losses incurred in respect of any such investments shall
be for the account of the Master Servicer which shall deposit the amount of such
loss (to the extent not offset by income from other investments) in the
Certificate Account (and, solely to the extent that the loss is of an amount
credited to an A/B Loan Custodial Account, deposit to the related A/B Loan
Custodial Account) or Interest Reserve Account, as the case may be, out of its
own funds immediately as realized. If the Master Servicer deposits in or
transfers to any Certificate Account, any A/B Loan Custodial Account or Interest
Reserve Account, as the case may be, any amount not required to be deposited
therein or transferred thereto, it may at any time withdraw such amount or
retransfer such amount from the Certificate Account, such A/B Loan Custodial
Account or Interest Reserve Account, as the case may be, any provision herein to
the contrary notwithstanding.
(f) Except as expressly provided otherwise in this Agreement, if any
default occurs in the making of a payment due under any Eligible Investment, or
if a default occurs in any other performance required under any Eligible
Investment, the Paying Agent on behalf of and at the direction of the Trustee
may take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings; provided, however, that if the Master Servicer shall have deposited
in the Certificate Account, A/B Loan Custodial Account and Interest Reserve
Account an amount equal to all amounts due under any such Eligible Investment
(net of anticipated income or earnings thereon that would have been payable to
the Master Servicer as additional servicing compensation) the Master Servicer
shall have the sole right to enforce such payment or performance.
(g) Certain of the Mortgage Loans may provide for payment by the
Mortgagor to the Master Servicer of amounts to be used for payment of Escrow
Amounts for the account of the Mortgagor. The Master Servicer shall deal with
these amounts in accordance with the Servicing Standard, the terms of the
related Mortgage Loans and Section 8.3(e) hereof, and the Primary Servicer will
be entitled to hold any Escrow Accounts relating to the Mortgage Loans that they
service in accordance with the requirements set forth in Section 8.3(e). Within
20 days following the first anniversary of the Closing Date, the Master Servicer
shall deliver to the Trustee, the Paying Agent and the Operating Adviser, for
each Mortgage Loan set forth on Schedule VII hereto, a brief statement as to the
status of the work or project based on the most recent information provided by
the Mortgagor. Schedule VII sets forth those Mortgage Loans as
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to which an upfront reserve was collected at closing in an amount in excess of
$75,000 with respect to specific immediate engineering work, completion of
additional construction, environmental remediation or similar one-time projects
(but not with respect to escrow accounts maintained for ongoing obligations,
such as real estate taxes, insurance premiums, ongoing property maintenance,
replacements and capital improvements or debt service). If the work or project
is not complete in accordance with the requirements of the escrow, the Master
Servicer and the Special Servicer (which shall itself consult with the Operating
Adviser) will consult with each other as to whether there exists a material
default under the underlying Mortgage Loan documents.
(h) In the case of the Mortgage Loans set forth on Schedule XI, as to
which the Scheduled Payment is due in a calendar month on a Due Date (including
any grace period) that may occur after the end of the Collection Period ending
in such calendar month, the Master Servicer shall, unless the Scheduled Payment
is received before the end of such Collection Period, make a P&I Advance by
deposit to the Certificate Account on the Master Servicer Remittance Date in an
amount equal to the "Scheduled Payment," and for purposes of the definition of
"Available Distribution Amount" and "Principal Distribution Amount," such
Scheduled Payment shall be deemed to have been received in such Collection
Period.
SECTION 5.2 APPLICATION OF FUNDS IN THE CERTIFICATE ACCOUNT AND
INTEREST RESERVE ACCOUNT.
(a) The Master Servicer shall, from time to time, make withdrawals from
the Certificate Account and remit them by wire transfer prior to 12:00 p.m., New
York City time, on the related Master Servicer Remittance Date in immediately
available funds to the account specified in this Section or otherwise (w) to
such account as it shall determine from time to time of amounts payable to the
Master Servicer from the Certificate Account (and, insofar as they relate to a B
Note, from the related A/B Loan Custodial Account) pursuant to clauses (i),
(ii), (iii), (iv), (vi), (viii) and (ix) below; (x) to the account specified in
writing by the Paying Agent from time to time of amounts payable to the Paying
Agent and the Trustee from the Certificate Account (and, insofar as they relate
to a B Note, from the related A/B Loan Custodial Account) pursuant to clauses
(ii), (iii), (v), (vi), (xi), (xii) and (xiii) below; and (y) to the Special
Servicer from time to time of amounts payable to the Special Servicer from such
Certificate Account (and, insofar as they relate to a B Note, from the related
A/B Loan Custodial Account) pursuant to clauses (i), (iv), (vi), (vii) and (ix)
below of the following amounts, from the amounts specified for the following
purposes:
(i) Fees: the Master Servicer shall pay (A) to itself Late
Fees (in excess of amounts used to pay Advance Interest) relating to Mortgage
Loans or B Notes which are not Specially Serviced Mortgage Loans, Modification
Fees relating to Mortgage Loans or B Notes which are not Specially Serviced
Mortgage Loans as provided in Section 8.18, 50% of any assumption fees payable
under Section 8.7(a) or 8.7(b), 100% of any extension fees payable under Section
8.10 or other fees payable to the Master Servicer hereunder and (B) directly to
the Special Servicer, 50% of any assumption fees as provided in Section 8.7(a),
50% of any assumption fees as provided in Section 8.7(b), all assumption fees
relating to Specially Serviced Mortgage Loans and Late Fees (in excess of
Advance Interest which the Master Servicer shall retain), Modification Fees and
other fees collected on Specially Serviced Mortgage Loans, in
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each case to the extent provided for herein from funds paid by the applicable
Mortgagor, and Late Fees collected on Specially Serviced Mortgage Loans to the
extent the Special Servicer is entitled to such Late Fees under Section 4.5;
(ii) Servicing Advances (including amounts later determined to
be Nonrecoverable Advances): to reimburse or pay to the Master Servicer, the
Trustee and the Fiscal Agent, pursuant to Section 4.6, (x) prior to a Final
Recovery Determination or determination in accordance with Section 4.4 that any
Advance is a Nonrecoverable Advance, Servicing Advances on the related Mortgage
Loan and any B Note from payments made by the related Mortgagor of the amounts
to which a Servicing Advance relates or from REO Income from the related REO
Property or from Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds
or Purchase Proceeds and, to the extent that a Servicing Advance has been or is
being reimbursed, any related Advance Interest thereon first, from Late Fees and
default interest collected during the Collection Period during which such
Advance is reimbursed, and then from Excess Liquidation Proceeds then available
and then from any other amounts on deposit in the Certificate Account; provided
that, Late Fees and default interest will be applied on a "pool basis" for
non-Specially Serviced Mortgage Loans (and any B Note) and on a "loan-by-loan
basis" (under which Late Fees and default interest will be offset against the
Advance Interest arising only from the particular Specially Serviced Mortgage
Loan) for Specially Serviced Mortgage Loans, as the case may be, to the payment
of Advance Interest on all Advances on such non-Specially Serviced Mortgage
Loans (and any B Note) or such Specially Serviced Mortgage Loans, as the case
may be, then being reimbursed or (y) after a Final Recovery Determination or
determination that any Servicing Advance on the related Mortgage Loan or any B
Note is a Nonrecoverable Advance, any Servicing Advances made on the related
Mortgage Loan, B Note or REO Property from any funds on deposit in the
Certificate Account (regardless of whether such amount was recovered from the
applicable Mortgage Loan or REO Property) and pay Advance Interest thereon
first, from Late Fees and default interest collected during the Collection
Period during which such Advance is reimbursed (applying such Late Fees and
default interest on a "pool basis" for all non-Specially Serviced Mortgage Loans
(and any B Note) and on a "loan-by-loan basis", as described above, for all
Specially Serviced Mortgage Loans, as the case may be, to the payment of Advance
Interest on all Advances on such non-Specially Serviced Mortgage Loans (and any
B Note) or such Specially Serviced Mortgage Loans, as the case may be, then
being reimbursed), then from Excess Liquidation Proceeds then available and then
from any other amounts on deposit in the Certificate Account;
(iii) P&I Advances (including amounts later to be determined
to be Nonrecoverable Advances): to reimburse or pay to the Master Servicer, the
Trustee and the Fiscal Agent, pursuant to Section 4.6, (x) if prior to a Final
Recovery Determination or determination that any Advance is a Nonrecoverable
Advance, any P&I Advances from Late Collections made by the Mortgagor of the
amounts to which a P&I Advance relates, or REO Income from the related REO
Property or from Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds
or Purchase Proceeds and, to the extent that a P&I Advance has been or is being
reimbursed, any related Advance Interest thereon, first, from Late Fees and
default interest collected during the Collection Period during which such
Advance is reimbursed, and then from Excess Liquidation Proceeds then available
and then from any other amounts on deposit in the Certificate Account; provided
that, Late Fees and default interest will be applied on a "pool basis" for
non-Specially Serviced Mortgage Loans and on a "loan-by-loan basis" (under which
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Late Fees and default interest will be offset against the Advance Interest
arising only from the particular Specially Serviced Mortgage Loan) for Specially
Serviced Mortgage Loans or (y) if after a Final Recovery Determination or
determination in accordance with Section 4.4 that any P&I Advance on the related
Mortgage Loan is a Nonrecoverable Advance, for any Mortgage Loan, any P&I
Advances made on the related Mortgage Loan or REO Property from any funds on
deposit in the Certificate Account (regardless of whether such amount was
recovered from the applicable Mortgage Loan or REO Property) and any Advance
Interest thereon, first, from Late Fees and default interest collected during
the Collection Period during which such Advance is reimbursed (applying such
Late Fees and default interest on a "pool basis" for all non-Specially Serviced
Mortgage Loans and on a "loan-by-loan basis", as described above, for all
Specially Serviced Mortgage Loans, as the case may be, to the payment of Advance
Interest on all Advances on such non-Specially Serviced Mortgage Loans or such
Specially Serviced Mortgage Loans, as the case may be, then being reimbursed),
then from Excess Liquidation Proceeds then available and then from any other
amounts on deposit in the Certificate Account;
(iv) Servicing Fees and Special Servicer Compensation: to pay
to itself the Master Servicing Fee, subject to reduction for any Compensating
Interest, to pay to the Special Servicer the Special Servicing Fee and the
Work-Out Fee, to pay to the Primary Servicer (or the Master Servicer) the
Primary Servicing Fees, and to pay to the parties entitled thereto the Excess
Servicing Fees (to the extent not previously retained by any of such parties);
(v) Trustee Fee and Paying Agent Fee: to pay to the
Distribution Account for withdrawal by the Paying Agent, the Paying Agent Fee
and the Trustee Fee;
(vi) Expenses of Trust: to pay to the Person entitled thereto
any amounts specified herein to be Additional Trust Expenses (at the time set
forth herein or in the definition thereof), the payment of which is not more
specifically provided for in this Agreement; provided that the Depositor shall
not be entitled to receive reimbursement for performing its duties under this
Agreement;
(vii) Liquidation Fees: upon the occurrence of a Final
Recovery Determination to pay to the Special Servicer from the Certificate
Account, the amount certified by the Special Servicer equal to the Liquidation
Fee, to the extent provided in Section 9.11 hereof;
(viii) Investment Income: to pay to itself income and gain
realized on the investment of funds deposited in such Certificate Account
(including any A/B Loan Custodial Accounts);
(ix) Prepayment Interest Excesses: to pay to the Master
Servicer the amount of the aggregate Prepayment Interest Excesses relating to
Mortgage Loans which are not Specially Serviced Mortgage Loans (to the extent
not offset by Prepayment Interest Shortfalls relating to such Mortgage Loans);
and to pay to the Special Servicer the amount of the aggregate Prepayment
Interest Excesses relating to Specially Serviced Mortgage Loans which have
received voluntary Principal Prepayments (not from Liquidation Proceeds or from
modifications to Specially Serviced Mortgage Loans), to the extent not offset by
Prepayment Interest Shortfalls relating to such Mortgage Loans.
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(x) Correction of Errors: to withdraw funds deposited in the
Certificate Account in error;
(xi) Distribution Account: to make payment on each Master
Servicer Remittance Date of the remaining amounts in the Certificate Account
(including Excess Interest) to the Distribution Account (or in the case of any
Excess Interest, deposit to the Excess Interest Sub-account under Section
5.3(b)) other than amounts held for payment in future periods or pursuant to
clause (xii) below;
(xii) Reserve Account: to make payment on each Master Servicer
Remittance Date to the Reserve Account, any Excess Liquidation Proceeds (subject
to Section 4.6(c)); and
(xiii) Clear and Terminate: to clear and terminate the
Certificate Account pursuant to Section 8.29;
provided, however, that in the case of any B Note:
(A) the Master Servicer shall be entitled to make transfers from time
to time, from the related A/B Loan Custodial Account to the portion of
the Certificate Account that does not constitute the A/B Loan Custodial
Account, of amounts necessary for the payments or reimbursement of
amounts described in any one or more of clauses (i), (ii), (iii), (iv),
(v), (vi), (vii), (viii), (ix) and (xii) above, but only insofar as the
payment or reimbursement described therein arises from or is related
solely to such A/B Mortgage Loan and is allocable to the A/B Mortgage
Loan pursuant to this Agreement or the Intercreditor Agreement, and the
Master Servicer shall also be entitled to make transfers from time to
time, from the related A/B Loan Custodial Account to the portion of the
Certificate Account that does not constitute the A/B Loan Custodial
Account, of amounts transferred to such related A/B Loan Custodial
Account in error, and amounts necessary for the clearing and
termination of the Certificate Account pursuant to Section 8.29;
(B) the Master Servicer shall be entitled to make transfers from time
to time, from the related A/B Loan Custodial Account to the portion of
the Certificate Account that does not constitute the A/B Loan Custodial
Account, of amounts not otherwise described in clause (A) above to
which the holder of an A Note is entitled under the A/B Mortgage Loan
and the related Intercreditor Agreement (including in respect of
interest, principal and Prepayment Premiums in respect of the A Note
(whether or not by operation of any provision of the related
Intercreditor Agreement that entitles the holder of such A Note to
receive remittances in amounts calculated without regard to any
modification, waiver or amendment of the economic terms of such A
Note)); and
(C) the Master Servicer shall on each Master Service Remittance Date
remit to the holder of the related B Note all amounts on deposit in
such A/B Loan Custodial Account (net of amounts permitted or required
to be transferred therefrom as described in clauses (A) and/or (B)
above), to the extent that the
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holder of such B Note is entitled thereto under the related
Intercreditor Agreement (including by way of the operation of any
provision of the related Intercreditor Agreement that entitles the
holder of the B Note to reimbursement of cure payments made by it).
Expenses incurred with respect to an A/B Mortgage Loan shall be
allocated in accordance with the Intercreditor Agreement. The Master Servicer
shall keep and maintain a separate accounting for each Mortgage Loan and B Note
for the purpose of justifying any withdrawal or transfer from the Certificate
Account and any A/B Loan Custodial Account. The Master Servicer shall not be
permitted to withdraw any funds from the portion of the Certificate Account that
does not constitute the A/B Loan Custodial Account unless there are no remaining
funds in the related A/B Loan Custodial Account available and required to be
paid in accordance with the related Intercreditor Agreement.
(b) Scheduled Payments due in a Collection Period succeeding the
Collection Period relating to such Master Servicer Remittance Date, Principal
Prepayments received after the related Collection Period, or other amounts not
distributable on the related Distribution Date, shall be held in the Certificate
Account (or sub-account thereof) and shall be distributed on the Master Servicer
Remittance Date or Dates to which such succeeding Collection Period or Periods
relate, provided, however, that as to the Mortgage Loans set forth on Schedule
XI, for which the Scheduled Payment due each month is due on a Due Date
(including any grace period) that may occur after the end of the Collection
Period in such month, sums received by the Master Servicer with respect to such
Scheduled Payment but after the end of such Collection Period shall be applied
by the Master Servicer to reimburse any related P&I Advance made pursuant to
Section 5.1(h), and the Master Servicer shall remit to the Distribution Account
on any Master Servicer Remittance Date for a Collection Period any Principal
Prepayments and Balloon Payments received after the end of such Collection
Period but no later than the second Business Day immediately preceding such
Master Servicer Remittance Date on the Mortgage Loans set forth on Schedule XI.
For purposes of the definition of "Available Distribution Amount" and "Principal
Distribution Amount," the Scheduled Payments and Principal Prepayments referred
to in the preceding proviso shall be deemed to have been collected in the prior
Collection Period.
(c) On each Master Servicer Remittance Date in March of every year
commencing in March 2003, the Master Servicer shall withdraw all amounts then in
the Interest Reserve Account and deposit such amounts into the Distribution
Account.
SECTION 5.3 DISTRIBUTION ACCOUNT AND RESERVE ACCOUNT.
(a) The Paying Agent, on behalf of the Trustee shall establish (with
respect to clause (i), on or prior to the Closing Date, and with respect to
clause (ii), on or prior to the date the Paying Agent determines is necessary)
and maintain in its name, on behalf of the Trustee, (i) an account (the
"Distribution Account"), to be held in trust for the benefit of the Holders
until disbursed pursuant to the terms of this Agreement, titled: "Xxxxx Fargo
Bank Minnesota, National Association, as Paying Agent on behalf of LaSalle Bank
National Association, as Trustee, in trust for the benefit of the Holders of
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2002-TOP6, Distribution Account" and (ii) an
account (the "Reserve Account") to be held in trust for the benefit of the
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holders of interests in the Trust until disbursed pursuant to the terms of this
Agreement, titled: "Xxxxx Fargo Bank Minnesota, National Association, as Paying
Agent on behalf of LaSalle Bank National Association, as Trustee, in trust for
the benefit of the Holders of Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2002-TOP6, Reserve
Account." The Distribution Account and the Reserve Account shall be Eligible
Accounts. Funds in the Reserve Account shall not be invested. The Distribution
Account and Reserve Account shall be held separate and apart from and shall not
be commingled with any other monies including, without limitation, other monies
of the Paying Agent held under this Agreement.
Funds in the Distribution Account may be invested and, if invested,
shall be invested by, and at the risk of, the Paying Agent in Eligible
Investments selected by the Paying Agent which shall mature, unless payable on
demand, not later than such time on the Distribution Date which will allow the
Paying Agent to make withdrawals from the Distribution Account under Section
5.3(b), and any such Eligible Investment shall not be sold or disposed of prior
to its maturity unless payable on demand. All such Eligible Investments shall be
made in the name of "LaSalle Bank National Association, as Trustee for the
Holders of the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2002-TOP6 and the holder of any
related B Note as their interests may appear." None of the Depositor, the
Mortgagors, the Special Servicer, the Master Servicer, the Primary Servicer or
the Trustee shall be liable for any loss incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the Paying Agent as additional compensation and
shall be subject to its withdrawal at any time from time to time. The amount of
any losses incurred in respect of any such investments shall be for the account
of the Paying Agent which shall deposit the amount of such loss (to the extent
not offset by income from other investments) in the Distribution Account, as the
case may be, out of its own funds immediately as realized. If the Paying Agent
deposits in or transfers to the Distribution Account, as the case may be, any
amount not required to be deposited therein or transferred thereto, it may at
any time withdraw such amount or retransfer such amount from the Distribution
Account, as the case may be, any provision herein to the contrary
notwithstanding.
(b) The Paying Agent shall deposit into the Distribution Account or the
Reserve Account, as applicable, on the Business Day received all moneys remitted
by the Master Servicer pursuant to this Agreement, including P&I Advances made
by the Master Servicer, the Trustee and the Fiscal Agent and all Excess
Liquidation Proceeds. The Paying Agent shall deposit amounts constituting
collections of Excess Interest on the Mortgage Loans into the Excess Interest
Sub-account. On any Master Servicer Remittance Date, the Master Servicer shall
have no duty to remit to the Distribution Account any amounts other than amounts
held in the Certificate Account and collected during the related Collection
Period as provided in clauses (v) and (xi) of Section 5.2(a) and the P&I Advance
Amount and, on the Master Servicer Remittance Date occurring in March of any
year, commencing in March 2003, amounts held in the Interest Reserve Account.
The Paying Agent shall make withdrawals from the Distribution Account (including
the Excess Interest Sub-account) and the Reserve Account only for the following
purposes:
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(i) to withdraw amounts deposited in the Distribution Account
in error and pay such amounts to the Persons entitled thereto;
(ii) to pay any amounts payable to the Master Servicer, the
Primary Servicer, the Special Servicer, the Fiscal Agent and the Trustee
(including the Trustee's Fee (other than that portion thereof, that constitutes
the Paying Agent's Fee)) and the Paying Agent (including the Paying Agent Fee),
or other expenses or other amounts permitted to be paid hereunder and not
previously paid to such Persons pursuant to Section 5.2;
(iii) to make distributions to the Certificateholders pursuant
to Section 6.5; and
(iv) to clear and terminate the Distribution Account pursuant
to Section 10.2.
SECTION 5.4 PAYING AGENT REPORTS.
(a) On or prior to each Distribution Date, based on information
provided in monthly reports prepared by the Master Servicer and the Special
Servicer and delivered to the Paying Agent by the Master Servicer (no later than
1:00 p.m., New York time on the Report Date), the Paying Agent shall make
available to any interested party via its internet website initially located at
"xxx.xxxxxxx.xxx/xxxx" (the "Paying Agent's Website"), (i) the Monthly
Certificateholder's Report (substantially in the form of Exhibit M), (ii) a
report containing information regarding the Mortgage Loans as of the end of the
related Collection Period, which report shall contain substantially the
categories of information regarding the Mortgage Loans set forth in Appendix I
to the Final Prospectus Supplement and shall be presented in tabular format
substantially similar to the format utilized in such Appendix I which report may
be included as part of the Monthly Certificateholders Report, (iii) the Loan
Periodic Update File, Loan Setup File, Bond Level File and the Collateral
Summary File, (iv) the supplemental reports set forth in paragraph (b) of the
definition of Unrestricted Servicer Reports and (v) as a convenience for
interested parties (and not in furtherance of the distribution thereof under the
securities laws), the Final Prospectus Supplement and this Agreement.
In addition, on or prior to each Distribution Date, based on
information provided in monthly reports prepared by the Master Servicer and the
Special Servicer and delivered to the Paying Agent in accordance herewith, the
Paying Agent shall make available via the Paying Agent's Website, on a
restricted basis, the Restricted Servicer Reports (including the Property File
on or prior to each Distribution Date, commencing in June 2002). The Paying
Agent shall provide access to the Restricted Servicer Reports, upon request, to
each Certificateholder, each of the parties to this Agreement, each of the
Rating Agencies, each of the Underwriters, the Operating Adviser, the Placement
Agents and any Certificate Owner upon receipt (which may be in electronic form)
from such person of an Investor Certificate in the form of Exhibit Y, and any
other person upon the direction of the Depositor, the Placement Agents or any
Underwriter. For assistance with the above-mentioned Paying Agent services,
Certificateholders or any party hereto may initially call 000-000-0000.
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The Paying Agent makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on the Paying Agent's Website and assumes no responsibility therefor.
The Paying Agent shall be entitled to conclusively rely on any information
provided to it by the Master Servicer or the Special Servicer and shall have no
obligation to verify such information and the Paying Agent may disclaim
responsibility for any information distributed by the Paying Agent for which it
is not the original source. In connection with providing access to the Paying
Agent's Website, the Paying Agent, may require registration and the acceptance
of a disclaimer. None of the Master Servicer, the Special Servicer, any Primary
Servicer or the Paying Agent shall be liable for the dissemination of
information in accordance with this Agreement; provided that this sentence shall
not in any way limit the liability the Paying Agent may otherwise have in the
performance of its duties hereunder.
(b) Subject to Section 8.15, upon advance written request, if required
by federal regulation, of any Certificateholder (or holder of a B Note) that is
a savings association, bank, or insurance company, the Paying Agent shall
provide (to the extent in its possession) to each such Certificateholder (or
such holder of a B Note) such reports and access to non-privileged information
and documentation regarding the Mortgage Loans and the Certificates as such
Certificateholder (or such holder of a B Note) may reasonably deem necessary to
comply with applicable regulations of the Office of Thrift Supervision or
successor or other regulatory authorities with respect to investment in the
Certificates; provided that the Paying Agent shall be entitled to be reimbursed
by such Certificateholder (or such holder of a B Note) for the Paying Agent's
actual expenses incurred in providing such reports and access. The holder of a B
Note shall be entitled to receive information and documentation only with
respect to its related A/B Mortgage Loan pursuant hereto.
(c) Upon written request, the Paying Agent shall send to each Person
who at any time during the calendar year was a Certificateholder of record,
customary information as the Paying Agent xxxxx xxx be necessary or desirable
for such Holders to prepare their federal income tax returns.
(d) Reserved
(e) The Paying Agent shall afford the Rating Agencies, the Depositor,
the Master Servicer, the Special Servicer, the Primary Servicer, the Trustee,
the Fiscal Agent, the Operating Adviser, any Certificateholder, the Luxembourg
Paying Agent, prospective Certificate Owner or any Person reasonably designated
by any Placement Agent, or any Underwriter upon reasonable notice and during
normal business hours, reasonable access to all relevant, non-attorney
privileged records and documentation regarding the applicable Mortgage Loans,
REO Property and all other relevant matters relating to this Agreement, and
access to Responsible Officers of the Paying Agent.
(f) Copies (or computer diskettes or other digital or electronic
formats of such information if reasonably available in lieu of paper copies) of
any and all of the foregoing items of this Section 5.4 shall be made available
by the Paying Agent upon request; provided, however, that the Paying Agent shall
be permitted to require payment by the requesting party (other than the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the
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Operating Adviser, any Placement Agent or any Underwriter or any Rating Agency)
of a sum sufficient to cover the reasonable expenses actually incurred by the
Paying Agent of providing access or copies (including electronic or digital
copies) of any such information requested in accordance with the preceding
sentence.
(g) The Paying Agent shall make available at its Corporate Trust Office
(either in physical or electronic form), during normal business hours, upon
reasonable advance written notice for review by any Certificateholder, any
Certificate Owner, any prospective Certificate Owner, the Underwriters, each
Rating Agency, the Special Servicer, the Depositor, and solely as with respect
to any A/B Mortgage Loan, the holder of the B Note, originals or copies of,
among other things, any Phase I Environmental Report or engineering report
prepared or appraisals performed in respect of each Mortgaged Property provided,
however, that the Paying Agent shall be permitted to require payment by the
requesting party (other than either Rating Agency) of a sum sufficient to cover
the reasonable expenses actually incurred by the Paying Agent or the Trustee of
providing access or copies (including electronic or digital copies) of any such
information reasonably requested in accordance with the preceding sentence.
SECTION 5.5 PAYING AGENT TAX REPORTS. The Paying Agent shall perform
all reporting and other tax compliance duties that are the responsibility of
each REMIC Pool and the Class N Grantor Trust under the Code, REMIC Provisions,
or other compliance guidance issued by the Internal Revenue Service or any state
or local taxing authority. Consistent with this Pooling and Servicing Agreement,
the Paying Agent shall provide or cause to be provided (i) to the United States
Treasury or other Persons (including, but not limited to, the Transferor of a
Class R-I, Class R-II or Class R-III Certificate, to a Disqualified Organization
or to an agent that has acquired a Class R-I, Class R-II or Class R-III
Certificate on behalf of a Disqualified Organization) such information as is
necessary for the application of any tax relating to the transfer of a Class
R-I, Class R-II or Class R-III Certificate to any Disqualified Organization and
(ii) to the Certificateholders such information or reports as are required by
the Code or REMIC Provisions; in the case of (i), subject to reimbursement of
expenses relating thereto in accordance with Section 7.12. The Master Servicer
shall on a timely basis provide the Paying Agent with such information
concerning the Mortgage Loans as is necessary for the preparation of the tax or
information returns or receipts of each REMIC Pool as the Paying Agent may
reasonably request from time to time. The Special Servicer is required to
provide to the Master Servicer all information in its possession with respect to
the Specially Serviced Mortgage Loans in order for the Master Servicer to comply
with its obligations under this Section 5.5. The Paying Agent shall be entitled
to conclusively rely on any such information provided to it by the Master
Servicer or the Special Servicer and shall have no obligation to verify any such
information.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DISTRIBUTIONS GENERALLY. Subject to Section 10.2(a),
respecting the final distribution on the Certificates, on each Distribution
Date, the Paying Agent shall (1) first, withdraw from the Distribution Account
and pay to the Fiscal Agent and Trustee any unpaid fees, expenses and other
amounts then required to be paid pursuant to this Agreement, and then, to the
Paying Agent, any unpaid fees, expenses and other amounts then required to be
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paid pursuant to this Agreement, and then at the written direction of the Master
Servicer, withdraw from the Distribution Account and pay to the Master Servicer,
the Primary Servicer and Special Servicer any unpaid servicing compensation or
other amounts currently required to be paid pursuant to this Agreement (to the
extent not previously retained or withdrawn by the Master Servicer from the
Certificate Account), and (2) second, make distributions in the manner and
amounts set forth below.
Each distribution to Holders of Certificates shall be made by check
mailed to such Holder's address as it appears on the Certificate Register of the
Certificate Registrar or, upon written request to the Paying Agent on or prior
to the related Record Date (or upon standing instructions given to the Paying
Agent on the Closing Date prior to any Record Date, which instructions may be
revoked at any time thereafter upon written notice to the Paying Agent five days
prior to the related Record Date) made by a Certificateholder by wire transfer
in immediately available funds to an account specified in the request of such
Certificateholder; provided, that (i) remittances to the Paying Agent shall be
made by wire transfer of immediately available funds to the Distribution Account
and the Reserve Account; and (ii) the final distribution in respect of any
Certificate shall be made only upon presentation and surrender of such
Certificate at such location specified by the Paying Agent in a notice delivered
to Certificateholders pursuant to Section 10.2(a). If any payment required to be
made on the Certificates is to be made on a day that is not a Business Day, then
such payment will be made on the next succeeding Business Day without
compensation for such delay. All distributions or allocations made with respect
to Holders of Certificates of a Class on each Distribution Date shall be made or
allocated among the outstanding Interests in such Class in proportion to their
respective initial Certificate Balances or Percentage Interests for the Class X
Certificates.
SECTION 6.2 REMIC I.
(a) On each Distribution Date, the Paying Agent shall be deemed to
distribute to itself on behalf of the Trustee, as holder of the REMIC I Regular
Interests, for the following purposes and in the following order of priority:
(i) from the portion of the Available Distribution Amount
attributable to interest collected or deemed collected on or with respect to
each Mortgage Loan or REO Property, Distributable Certificate Interest to each
Corresponding REMIC I Regular Interest;
(ii) from the portion of the Available Distribution Amount
attributable to principal collected or deemed collected on or with respect to
each Mortgage Loan or REO Property, principal to the Corresponding REMIC I
Regular Interest, until the Certificate Balance thereof is reduced to zero;
(iii) any remaining funds, to reimburse any Realized Losses
previously allocated to the REMIC I Regular Interests, plus interest on such
Realized Losses previously allocated thereto, at the applicable Pass-Through
Rates; and
(iv) thereafter, to the Class R-I Certificateholders at such
time as the Certificate Balance of all Classes of REMIC I Regular Interests have
been reduced to zero, and
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Realized Losses previously allocated thereto have been reimbursed to the Holders
of the REMIC I Regular Interests, any amounts remaining.
SECTION 6.3 REMIC II.
(a) On each Distribution Date, the Paying Agent shall be deemed to
distribute to itself on behalf of the Trustee, as holder of the REMIC II Regular
Interests, for the following purposes and in the following order of priority:
(i) an amount equal to Distributable Certificate Interest for
the Class A-1 Certificates, Class A-2 Certificates, Class X-1 Certificates and
Class X-2 Certificates to REMIC II Regular Interest A-1A, REMIC II Regular
Interest A-1B, REMIC II Regular Interest A-2A, REMIC II Regular Interest A-2B,
REMIC II Regular Interest B, REMIC II Regular Interest C, REMIC II Regular
Interest D, REMIC II Regular Interest E, REMIC II Regular Interest F, REMIC II
Regular Interest G, REMIC II Regular Interest H, REMIC II Regular Interest J,
REMIC II Regular Interest K, REMIC II Regular Interest L, REMIC II Regular
Interest M and REMIC II Regular Interest N, divided among such REMIC II Regular
Interests in proportion to (A) in the case of the REMIC II Regular Interest
A-1A, REMIC II Regular Interest A-1B, REMIC II Regular Interest A-2A and REMIC
II Regular Interest A-2B, the Accrued Certificate Interest for such Distribution
Date and (B) in the case of REMIC II Regular Interest B, REMIC II Regular
Interest C, REMIC II Regular Interest D, REMIC II Regular Interest E, REMIC II
Regular Interest F, REMIC II Regular Interest G, REMIC II Regular Interest H,
REMIC II Regular Interest J, REMIC II Regular Interest K, REMIC II Regular
Interest L, REMIC II Regular Interest M and REMIC II Regular Interest N, the
product of (a) the Certificate Balance of such Interest and (b) one-twelfth of
the sum of the related Class X-1 Strip Rate and the related Class X-2 Strip Rate
(if any);
(ii) to REMIC II Regular Interest A-1A, REMIC II Regular
Interest A-1B, REMIC II Regular Interest A-2A and REMIC II Regular Interest
A-2B, in reduction of the Certificate Balances thereof, in an amount up to the
Principal Distribution Amount for such Distribution Date: (A) first, to the
REMIC II Regular Interest A-1A until the Certificate Balance of REMIC II Regular
Interest A-1A is reduced to zero, and upon payment in full of the Certificate
Balance of the REMIC II Regular Interest A-1A, to the REMIC II Regular Interest
A-1B, the Principal Distribution Amount for such Distribution Date (reduced by
any portion thereof deemed to be distributed to the REMIC II Regular Interest
A-1A), until the Certificate Balance of the REMIC II Regular Interest A-1B has
been reduced to zero and (B) second, to the REMIC II Regular Interest A-2A, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1A and
A-1B), until the Certificate Balance of the REMIC II Regular Interest A-2A has
been reduced to zero and upon payment in full of the Certificate Balance of the
REMIC II Regular Interest A-2A, to the REMIC II Regular Interest A-2B, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1A, A-1B and
A-2A), until the Certificate Balance of the REMIC II Regular Interest A-2B has
been reduced to zero;
(iii) to REMIC II Regular Interest A-1A, REMIC II Regular
Interest A-1B, REMIC II Regular Interest A-2A, REMIC II Regular Interest A-2B,
REMIC II Regular
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Interest B, REMIC II Regular Interest C, REMIC II Regular Interest D, REMIC II
Regular Interest E, REMIC II Regular Interest F, REMIC II Regular Interest G,
REMIC II Regular Interest H, REMIC Regular Interest J, REMIC II Regular Interest
K, REMIC II Regular Interest L, REMIC II Regular Interest M and REMIC II Regular
Interest N, pro rata on the basis of their respective entitlements to
reimbursement described in this clause (iii), to reimburse any Realized Interest
Losses previously allocated to REMIC II Regular Interest A-1A, REMIC II Regular
Interest A-1B, REMIC II Regular Interest A-2A, REMIC II Regular Interest A-2B,
REMIC II Regular Interest B, REMIC II Regular Interest C, REMIC II Regular
Interest D, REMIC II Regular Interest E, REMIC II Regular Interest F, REMIC II
Regular Interest G, REMIC II Regular Interest H, REMIC II Regular Interest J,
REMIC II Regular Interest K, REMIC II Regular Interest L, REMIC II Regular
Interest M and REMIC II Regular Interest N, in the case of all such Interests
other than the REMIC II Regular Interest A-1A, REMIC II Regular Interest A-1B,
REMIC II Regular Interest A-2A, REMIC II Regular Interest A-2B, as a result of
the allocation of Realized Losses to the Class X Certificates and in the case of
all such Interests, inclusive of one month's interest at the applicable
Pass-Through Rate on such Realized Interest Losses;
(iv) to the REMIC II Regular Interest B, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(v) upon payment in full of the Certificate Balances of the
REMIC II Regular Interest A-2B, to the REMIC II Regular Interest B, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1A, REMIC II
Regular Interest A-1B, REMIC II Regular Interest A-2A and REMIC II Regular
Interest A-2B,), until the Certificate Balance of the REMIC II Regular Interest
B has been reduced to zero;
(vi) to the REMIC II Regular Interest B, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus one month's
interest at the applicable Pass-Through Rate on such Realized Losses;
(vii) to the REMIC II Regular Interest C, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(viii) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest B, to the REMIC II Regular Interest C, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed pursuant to the preceding provisions hereof), until the
Certificate Balance of the REMIC II Regular Interest C has been reduced to zero;
(ix) to the REMIC II Regular Interest C, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus one month's
interest at the applicable Pass-Through Rate on such Realized Losses;
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(x) to the REMIC II Regular Interest D, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xi) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest C, to the REMIC II Regular Interest D, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed pursuant to the preceding provisions hereof), until the
Certificate Balance of the REMIC II Regular Interest D has been reduced to zero;
(xii) to the REMIC II Regular Interest D, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus one month's
interest at the applicable Pass-Through Rate on such Realized Losses;
(xiii) to the REMIC II Regular Interest E, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xiv) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest D, to the REMIC II Regular Interest E, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed pursuant to the preceding provisions hereof), until the
Certificate Balance of the REMIC II Regular Interest E has been reduced to zero;
(xv) to the REMIC II Regular Interest E, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus one month's
interest at the applicable Pass-Through Rate on such Realized Losses;
(xvi) to the REMIC II Regular Interest F, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xvii) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest E, to the REMIC II Regular Interest F, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed pursuant to the preceding provisions hereof), until the
Certificate Balance of the REMIC II Regular Interest F has been reduced to zero;
(xviii) to the REMIC II Regular Interest F, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus one month's
interest at the applicable Pass-Through Rate on such Realized Losses;
(xix) to the REMIC II Regular Interest G, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xx) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest F, to the REMIC II Regular Interest G, the Principal
Distribution Amount for
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such Distribution Date (reduced by any portion thereof deemed to be distributed
pursuant to the preceding provisions hereof), until the Certificate Balance of
the REMIC II Regular Interest G has been reduced to zero;
(xxi) to the REMIC II Regular Interest G, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus one month's
interest at the applicable Pass-Through Rate on such Realized Losses;
(xxii) to the REMIC II Regular Interest H, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxiii) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest G, to the REMIC II Regular Interest H, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed pursuant to the preceding provisions hereof), until the
Certificate Balance of the REMIC II Regular Interest H has been reduced to zero;
(xxiv) to the REMIC II Regular Interest H, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus one month's
interest at the applicable Pass-Through Rate on such Realized Losses;
(xxv) to the REMIC II Regular Interest J, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xxvi) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest H, to the REMIC II Regular Interest J, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed pursuant to the preceding provisions hereof), until the
Certificate Balance of the REMIC II Regular Interest J has been reduced to zero;
(xxvii) to the REMIC II Regular Interest J, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus one month's
interest at the applicable Pass-Through Rate on such Realized Losses;
(xxviii) to the REMIC II Regular Interest K, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxix) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest J to the REMIC II Regular Interest K, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed pursuant to the preceding provisions hereof), until the
Certificate Balance of the REMIC II Regular Interest K has been reduced to zero;
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(xxx) to the REMIC II Regular Interest K, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus one month's
interest at the applicable Pass-Through Rate on such Realized Losses;
(xxxi) to the REMIC II Regular Interest L, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxxii) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest K to the REMIC II Regular Interest L, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed pursuant to the preceding provisions hereof), until the
Certificate Balance of the REMIC II Regular Interest L has been reduced to zero;
(xxxiii) to the REMIC II Regular Interest L, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus one month's
interest at the applicable Pass-Through Rate on such Realized Losses;
(xxxiv) to the REMIC II Regular Interest M, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxxv) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest L to the REMIC II Regular Interest M, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed pursuant to the preceding provisions hereof), until the
Certificate Balance of the REMIC II Regular Interest M has been reduced to zero;
(xxxvi) to the REMIC II Regular Interest M, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus one month's
interest at the applicable Pass-Through Rate on such Realized Losses;
(xxxvii) to the REMIC II Regular Interest N, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxxviii) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest M to the REMIC II Regular Interest N, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest N has been
reduced to zero;
(xxxix) to the REMIC II Regular Interest N, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus one month's
interest at the applicable Pass-Through Rate on such Realized Losses;
(xl) thereafter, to the Class R-II Certificateholders at such
time as the Certificate Balances of all Classes of REMIC II Regular Interests
have been reduced to zero,
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and Realized Losses previously allocated thereto have been reimbursed to the
Holders of the REMIC II Regular Interests, any amounts remaining.
SECTION 6.4 RESERVED.
SECTION 6.5 REMIC III.
(a) On each Distribution Date, the Paying Agent shall withdraw from the
Distribution Account an amount equal to the Available Distribution Amount and
shall distribute such amount (other than the amount attributable to Excess
Interest which shall be distributed in accordance with Section 6.5(c)) and
Excess Liquidation Proceeds in the following amounts and order of priority:
(i) to the Holders of the Class A-1 Certificates, Class A-2
Certificates, Class X-1 Certificates and Class X-2 Certificates, Distributable
Certificate Interest for such Distribution Date, pro rata in proportion to the
Distributable Certificate Interest payable to each such Class;
(ii) to the Holders of the Class A-1 and Class A-2
Certificates, in reduction of the Certificate Balances thereof, in an amount up
to the Principal Distribution Amount for such Distribution Date: first, to the
Holders of the Class A-1 Certificates, the Principal Distribution Amount for
such Distribution Date until the Certificate Balance thereof is reduced to zero
and second, upon payment in full of the aggregate Certificate Balance of the
Class A-1 Certificates, to the holders of the Class A-2 Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder) until the aggregate Certificate Balance of the
Class A-2 Certificates has been reduced to zero;
(iii) to the Holders of the Class A Certificates, Class X-1
Certificates and Class X-2 Certificates, pro rata (treating principal and
interest losses separately), to reimburse any Realized Losses previously
allocated thereto and not previously fully reimbursed, plus one month's interest
at the applicable Pass-Through Rate on such Realized Losses;
(iv) to the Holders of the Class B Certificates, Distributable
Certificate Interest for such Distribution Date;
(v) upon payment in full of the Certificate Balance of the
Class A-2 Certificates, to the Holders of the Class B Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class B
Certificates has been reduced to zero;
(vi) to the Holders of the Class B Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(vii) to the Holders of the Class C Certificates,
Distributable Certificate Interest for such Distribution Date;
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(viii) upon payment in full of the Certificate Balance of the
Class B Certificates, to the Holders of the Class C Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class C
Certificates has been reduced to zero;
(ix) to the Holders of the Class C Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(x) to the Holders of the Class D Certificates, Distributable
Certificate Interest for such Distribution Date;
(xi) upon payment in full of the Certificate Balance of the
Class C Certificates, to the Holders of the Class D Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class D
Certificates has been reduced to zero;
(xii) to the Holders of the Class D Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xiii) to the Holders of the Class E Certificates,
Distributable Certificate Interest for such Distribution Date;
(xiv) upon payment in full of the Certificate Balance of the
Class D Certificates, to the Holders of the Class E Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class E
Certificates has been reduced to zero;
(xv) to the Holders of the Class E Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xvi) to the Holders of the Class F Certificates,
Distributable Certificate Interest for such Distribution Date;
(xvii) upon payment in full of the Certificate Balance of the
Class E Certificates, to the Holders of the Class F Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class F
Certificates has been reduced to zero;
(xviii) to the Holders of the Class F Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(xix) to the Holders of the Class G Certificates,
Distributable Certificate Interest for such Distribution Date;
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(xx) upon payment in full of the Certificate Balance of the
Class F Certificates, to the Holders of the Class G Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class G
Certificates has been reduced to zero;
(xxi) to the Holders of the Class G Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xxii) to the Holders of the Class H Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxiii) upon payment in full of the Certificate Balance of the
Class G Certificates, to the Holders of the Class H Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class H
Certificates has been reduced to zero;
(xxiv) to the Holders of the Class H Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(xxv) to the Holders of the Class J Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxvi) upon payment in full of the Certificate Balance of the
Class H Certificates, to the Holders of the Class J Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class J
Certificates has been reduced to zero;
(xxvii) to the Holders of the Class J Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(xxviii) to the Holders of the Class K Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxix) upon payment in full of the Certificate Balance of the
Class J Certificates, to the Holders of the Class K Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class K
Certificates has been reduced to zero;
(xxx) to the Holders of the Class K Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xxxi) to the Holders of the Class L Certificates,
Distributable Certificate Interest for such Distribution Date;
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(xxxii) upon payment in full of the Certificate Balance of the
Class K Certificates, to the Holders of the Class L Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class L
Certificates has been reduced to zero;
(xxxiii) to the Holders of the Class L Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(xxxiv) to the Holders of the Class M Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxxv) upon payment in full of the Certificate Balance of the
Class L Certificates, to the Holders of the Class M Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class M
Certificates has been reduced to zero;
(xxxvi) to the Holders of the Class M Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(xxxvii) to the Holders of the Class N Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxxviii) upon payment in full of the Certificate Balance of
the Class M Certificates, to the Holders of the Class N Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class N
Certificates has been reduced to zero;
(xxxix) to the Holders of the Class N Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses; and
(xl) to the Holders of the Class R-III Certificates at such
time as the Certificate Balances of all Classes of REMIC Regular Certificates
have been reduced to zero, and Realized Losses previously allocated to each
Holder have been reimbursed to the Holders of the REMIC Regular Certificates,
any amounts remaining on deposit in the Distribution Account.
Notwithstanding the foregoing, on each Distribution Date occurring on
or after the earliest date, if any, upon which the Certificate Balances of all
the Classes of Subordinate Certificates have been reduced to zero or the
aggregate Appraisal Reduction in effect is greater than or equal to Certificate
Balances of all the Classes of Subordinate Certificates, the Principal
Distribution Amount will be distributed, first, to the Holders of the Class A-1
and Class A-2 Certificates, pro rata, based on their respective Certificate
Balances, in reduction of their respective Certificate Balances, until the
Certificate Balance of each such Class is reduced to zero; and, second, to the
Holders of the Class A-1 and Class A-2 Certificates, pro rata, based on the
respective amounts of unreimbursed Realized Losses previously allocated to each
such Class, plus one month's interest on such Realized Losses at the applicable
Pass-Through Rate. A
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similar rule shall apply to the distribution of the Principal Distribution
Amount to REMIC II Regular Interests X-0X, X-0X, X-0X xxx X-0X, in lieu of the
distributions described in Section 6.3(a)(ii).
(b) On each Distribution Date, the Paying Agent shall withdraw amounts
in the Reserve Account and shall pay the Certificateholders on such Distribution
Date such amounts in the following priority:
(i) first, to reimburse the Holders of the Principal Balance
Certificates (in order of alphabetical Class designation) for any, and to the
extent of, Realized Losses previously allocated to them; and
(ii) second, upon the reduction of the Aggregate Certificate
Balance of the Principal Balance Certificates to zero, to pay any amounts
remaining on deposit in such account to the Special Servicer as additional
Special Servicer Compensation.
This Section 6.5(b) shall apply mutatis mutandis to reimbursement of
Realized Losses previously allocated to the REMIC II Regular Interests.
(c) On each Distribution Date, the Paying Agent shall withdraw from the
Excess Interest Sub-account any Excess Interest on deposit therein, and the
Paying Agent shall pay such Excess Interest on such Distribution Date to the
Class N Certificates (even if the Certificate Balance of the Class N
Certificates has been reduced to zero for any reason).
SECTION 6.6 ALLOCATION OF REALIZED LOSSES, EXPENSE LOSSES AND
SHORTFALLS DUE TO NONRECOVERABILITY.
(a) REMIC I. On each Distribution Date, except as provided in
subsection (b) below,
(i) Realized Principal Losses on each Mortgage Loan realized
during the related Collection Period shall reduce the Certificate Balance of the
Corresponding REMIC I Regular Interest;
(ii) Realized Interest Losses on each Mortgage Loan shall be
allocated to reduce first, Distributable Certificate Interest for such
Distribution Date, and then Unpaid Interest in each case owing on the
Corresponding REMIC I Regular Interest; and to the extent that such Realized
Interest Loss exceeds such amount, shall be treated as an Expense Loss;
(iii) Expense Losses (not otherwise applied above) realized
during the related Collection Period shall be allocated among the REMIC I
Regular Interests in proportion to their Certificate Balances after making all
other allocations for such Distribution Date.
(b) In the event that the Master Servicer, the Trustee or the Fiscal
Agent, determines that an Advance previously made by it is a Nonrecoverable
Advance and the Master
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Servicer withdraws the amount of such Advance from the Certificate Account
pursuant to Section 5.2(a) hereof (which amount shall be treated as an Available
Advance Reimbursement Amount pursuant to Section 4.6), it shall determine the
portion of the amount so withdrawn that is attributable to (w) interest on the
related Mortgage Loan; (x) principal on the related Mortgage Loan; (y) Servicing
Advances; and (z) Advance Interest. The portion of the amount so withdrawn from
the Certificate Account that is allocable to:
(i) amounts previously advanced as interest on the related
Mortgage Loan shall reduce the Available Distribution Amount for REMIC I and
shall be allocated to reduce the amount of interest paid on each REMIC I Regular
Interest on such Distribution Date in proportion to Distributable Certificate
Interest otherwise payable thereon, and shall result in Unpaid Interest on each
such REMIC I Regular Interest;
(ii) amounts previously advanced as principal on the related
Mortgage Loan shall reduce the Available Distribution Amount for REMIC I and
shall be allocated to reduce the principal paid on each REMIC I Regular Interest
on which principal would otherwise be paid on such Distribution Date, in
proportion to such principal payments; and
(iii) amounts previously advanced as Servicing Advances, as
well as Advance Interest owing to the Master Servicer, the Trustee or the Fiscal
Agent with respect to Advances shall be treated as Expense Losses and allocated
in accordance with Section 6.6(a)(iii) above.
(c) At such time as a Final Recovery Determination is made with respect
to any Mortgage Loan with respect to which the Master Servicer previously had
withdrawn amounts from the Certificate Account following a determination that
Advances previously made were Nonrecoverable Advances, or at such other time as
a Realized Loss shall occur with respect to any such Mortgage Loan, the Master
Servicer shall compute the Realized Loss with respect to such Mortgage Loan and
the Paying Agent shall allocate such Realized Loss as follows:
(i) to the extent that any Realized Principal Loss does not
exceed the Certificate Balance on the Corresponding REMIC I Regular Interest,
such Realized Principal Loss shall be allocated to such REMIC I Regular
Interest; and to the extent that any Realized Principal Loss exceeds the
Certificate Balance of the Corresponding REMIC I Regular Interest, such Realized
Principal Loss shall be allocated to the other Corresponding REMIC I Regular
Interests with respect to which distributions of principal were reduced pursuant
to Section 6.6(b)(ii) above, in proportion to the amount of such reductions;
(ii) any Realized Interest Loss shall be allocated to the
Corresponding REMIC I Interest to the extent of Unpaid Interest thereon and any
remaining portion of the Realized Interest Loss shall be allocated as a Realized
Interest Loss on each REMIC I Regular Interest with respect to which Unpaid
Interest was created pursuant to Section 6.6(b)(i) above in proportion to the
amount of Unpaid Interest resulting from the reduction in distributions of
interest on such REMIC I Regular Interest pursuant to Section 6.6(b)(i) above;
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(iii) the portion of the amount recovered on the Mortgage Loan
with respect to which amounts were withdrawn from the Certificate Account that
are treated as Recoveries of principal on the Mortgage Loan shall be applied
first, to make payments of principal on the Corresponding REMIC I Regular
Interest until the Realized Principal Losses previously allocated thereto are
reduced to zero and thereafter to make payments of principal to the
Corresponding REMIC I Regular Interests with respect to which principal
distributions were reduced pursuant to Section 6.6(b)(i) above, in proportion to
the amount of such reductions;
(iv) the portion of the amount recovered on the Mortgage Loan
with respect to which amounts were withdrawn from the Certificate Account that
are treated as Recoveries of interest on the Mortgage Loan shall be applied
first, to make payments of Unpaid Interest on the Corresponding REMIC I Regular
Interest and thereafter to make payments of interest on each REMIC I Interest
with respect to which Unpaid Interest was created pursuant to Section 6.6(b)(ii)
above in proportion to the amount of Unpaid Interest resulting from the
reduction in distributions of interest on such REMIC I Regular Interest pursuant
to Section 6.6(b)(ii) above; and
(v) the portion of the amount recovered on the Mortgage Loan
with respect to which amounts were withdrawn from the Certificate Account that
is treated as a recovery of expenses on the Mortgage Loan shall be applied in
reimbursement of Expense Losses on each REMIC I Regular Interest with respect to
which an Expense Loss was created pursuant to Section 6.6(b)(iii) above in
proportion to the amount of the Expense Loss allocated thereto pursuant to
Section 6.6(b)(iii) above.
(d) REMIC II. On each Distribution Date, all Realized Losses on the
REMIC I Interests for such Distribution Date (or for prior Distribution Dates,
to the extent not previously allocated) shall be allocated to the Corresponding
REMIC II Regular Interests in the amounts and in the manner as will be allocated
to the REMIC Regular Certificates relating thereto pursuant to Section 6.6(f).
Realized Losses allocated to the Class X Certificates shall reduce the amount of
interest payable on the REMIC II Regular Interest A-1A, REMIC II Regular
Interest A-1B, REMIC II Regular Interest A-2A, REMIC II Regular Interest A-2B,
REMIC II Regular Interest B, REMIC II Regular Interest C, REMIC II Regular
Interest D, REMIC II Regular Interest E, REMIC II Regular Interest F, REMIC II
Regular Interest G, REMIC II Regular Interest H, REMIC II Regular Interest J,
REMIC II Regular Interest K, REMIC II Regular Interest L, REMIC II Regular
Interest M and REMIC II Regular Interest N, which reduction shall be allocated
pro rata based on the product of the Certificate Balance of such REMIC II
Regular Interest and the sum of the Class X-1 Strip Rate and the Class X-2 Strip
Rate (if any) applicable to the Class of Certificates relating to such REMIC II
Regular Interest.
(e) Reserved
(f) REMIC III. On each Distribution Date, all Realized Losses on the
REMIC II Regular Interests for such Distribution Date (or for prior Distribution
Dates, to the extent not previously allocated) shall be allocated to the REMIC
Regular Certificates in Reverse Sequential Order, in each case reducing (A) the
Certificate Balance of such Class until such Certificate Balance is reduced to
zero (in the case of the Principal Balance Certificates); (B) Unpaid Interest
owing to such Class to the extent thereof and (C) Distributable Certificate
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Interest owing to such Class, provided, that such reductions shall be allocated
among the Class A-1 Certificates, Class A-2 Certificates, Class X-1 Certificates
and Class X-2 Certificates, pro rata, based upon their outstanding Certificate
Balances or accrued interest, as the case may be, and provided further, that
Realized Losses shall not reduce the Aggregate Certificate Balance of the REMIC
III Certificates below the sum of the Aggregate Certificate Balances of the
REMIC II Regular Interests.
SECTION 6.7 NET AGGREGATE PREPAYMENT INTEREST SHORTFALLS. On each
Distribution Date, any Net Aggregate Prepayment Interest Shortfalls in REMIC I,
shall be allocated among the REMIC I Regular Interests, pro rata in proportion
to the Accrued Certificate Interest for each such REMIC I Regular Interest for
such Distribution Date and shall reduce Distributable Certificate Interest for
each such Interest. On each Distribution Date, any Net Aggregate Prepayment
Interest Shortfalls in REMIC II shall be allocated among the REMIC II Regular
Interests, pro rata in proportion to the Accrued Certificate Interest for each
such REMIC II Regular Interest for such Distribution Date and shall reduce
Distributable Certificate Interest for each such Interest. On each Distribution
Date, the amount of any Net Aggregate Prepayment Interest Shortfalls on the
REMIC III Regular Interests shall be allocated to each Class of Certificates,
pro rata, in proportion to the amount of Accrued Certificate Interest payable to
such Class of Certificates on such Distribution Date, in each case reducing
interest otherwise payable thereon. The amount of Net Aggregate Prepayment
Interest Shortfalls allocated to a Class of Certificates pursuant to the
preceding sentence shall reduce the Distributable Certificate Interest for such
Class for such Distribution Date. No Prepayment Interest Shortfall with respect
to a B Note shall be allocated to any Class of Certificates.
SECTION 6.8 ADJUSTMENT OF SERVICING FEES. The Master Servicing Fee
payable to the Master Servicer shall be adjusted as provided in Section 8.10(c)
herein. Any amount retained by REMIC I as a result of a reduction of the Master
Servicing Fee shall be treated as interest collected with respect to the prepaid
Mortgage Loans with respect to which the Master Servicing Fee adjustment occurs.
SECTION 6.9 APPRAISAL REDUCTIONS. Not later than the date on which an
Appraisal Event occurs, the Special Servicer shall have obtained (A) an
Appraisal of the Mortgaged Property securing the related Mortgage Loan, if the
Principal Balance of such Mortgage Loan exceeds $2,000,000 or (B) at the option
of the Special Servicer, if such Principal Balance is less than or equal to
$2,000,000, either an internal valuation prepared by the Special Servicer in
accordance with MAI standards or an Appraisal which in all cases shall be
completed as of the date that such Mortgage Loan becomes a Required Appraisal
Loan; provided that if the Special Servicer had completed or obtained an
Appraisal or internal valuation within the immediately prior 12 months, the
Special Servicer may rely on such Appraisal or internal valuation and shall have
no duty to prepare a new Appraisal or internal valuation, unless such reliance
would not be in accordance with the Servicing Standard; provided, further, that
if the Special Servicer is required to obtain an Appraisal of a Mortgaged
Property after receipt of the notice described in clause (ii) of the definition
of Appraisal Event, such Appraisal will be obtained no later than 60 days after
receipt of such notice and an internal valuation will be obtained no later than
60 days after receipt of such notice. Such Appraisal or valuation shall be
conducted in accordance with the definition of "market value" as set forth in 12
C.F.R. ss. 225.62 and shall be updated at least annually to the extent such
Mortgage Loan remains a Required
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Appraisal Loan. The cost of any such Appraisal or valuation, if not performed by
the Special Servicer, shall be an expense of the Trust and may be paid from REO
Income or, to the extent collections from such related Mortgage Loan or
Mortgaged Property does not cover the expense, such unpaid expense shall be,
subject to Section 4.4 hereof, advanced by the Master Servicer at the request of
the Special Servicer pursuant to Section 4.6 in which event it shall be treated
as a Servicing Advance. The Master Servicer, based on the Appraisal or internal
valuation provided to it by the Special Servicer, shall calculate any Appraisal
Reduction. The Master Servicer shall calculate or recalculate the Appraisal
Reduction for any Mortgage Loan based on updated Appraisals or internal
valuations provided from time to time to it by the Special Servicer.
SECTION 6.10 COMPLIANCE WITH WITHHOLDING REQUIREMENTS. Notwithstanding
any other provision of this Agreement to the contrary, the Paying Agent on
behalf of the Trustee shall comply with all federal withholding requirements
with respect to payments to Certificateholders of interest, original issue
discount, or other amounts that the Paying Agent reasonably believes are
applicable under the Code. The consent of Certificateholders shall not be
required for any such withholding and any amount so withheld shall be regarded
as distributed to the related Certificateholders for purposes of this Agreement.
In the event the Paying Agent withholds any amount from payments made to any
Certificateholder pursuant to federal withholding requirements, the Paying Agent
shall indicate to such Certificateholder the amount withheld.
SECTION 6.11 PREPAYMENT PREMIUMS. Any Prepayment Premium collected
with respect to a Mortgage Loan (but not a B Note, which Prepayment Premium is
payable to the holder of the B Note) during any particular Collection Period
will be deemed distributed to the Trustee by the Paying Agent on the following
Distribution Date as follows: (i) first, the Paying Agent shall be deemed to
distribute to the Trustee, as holder of the REMIC I Regular Interest to which
such Mortgage Loan relates, any Prepayment Premiums collected on or with respect
to such Mortgage Loan; and (ii) second, the Paying Agent shall be deemed to
distribute to the Trustee, as holder of the REMIC II Regular Interests, any
Prepayment Premiums deemed distributed to the REMIC I Regular Interests, and
shall be deemed to distribute such Prepayment Premiums to the REMIC II Regular
Interest then entitled to distributions of principal from the Principal
Distribution Amount (or, if more than one Class of REMIC II Regular Interests is
then entitled to distributions of principal from the Principal Distribution
Amount, such Prepayment Premiums shall be deemed distributed among such Classes
pro rata in accordance with the relevant amounts of entitlements to
distributions of principal). Following such deemed distributions, the Holders of
the respective Classes of Principal Balance Certificates, other than the Class
G, Class H, Class J, Class K, Class L, Class M and Class N Certificates, then
entitled to distributions of principal from the Principal Distribution Amount
for such Distribution Date, will be entitled to, and the Paying Agent on behalf
of the Trustee will pay to such Holder(s), an amount equal to, in the case of
each such Class, the product of (a) a fraction, the numerator of which is the
amount distributed as principal to the holders of that Class on that
Distribution Date, and the denominator of which is the total amount distributed
as principal to the holders of all Classes of Certificates on that Distribution
Date, (b) the Base Interest Fraction for the related Principal Prepayment and
that Class of Certificates and (c) the aggregate amount of Prepayment Premiums
collected during the related Collection Period. Any portion of such Prepayment
Premium that is not so distributed to the Holders of such Principal Balance
Certificates will be distributed to the Holders of the Class X Certificates. On
any Distribution Date on or before July
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2005, 85% of the Prepayment Premium that is not so distributed to the Holders of
such Principal Balance Certificates will be distributed to the Holders of the
Class X-1 Certificates and 15% of the Prepayment Premium that is not so
distributed to the Holders of such Principal Balance Certificates will be
distributed to the Holders of the Class X-2 Certificates. After the Distribution
Date in July 2005, any portion of such Prepayment Premium that is not so
distributed to the Holders of such Principal Balance Certificates will be
distributed to the Holders of the Class X-1 Certificates. The Trustee shall not
be responsible for the Paying Agent's failure to comply with any withholding
requirements.
ARTICLE VII
CONCERNING THE TRUSTEE, THE FISCAL AGENT, THE PAYING AGENT AND
THE LUXEMBOURG PAYING AGENT
SECTION 7.1 DUTIES OF THE TRUSTEE, THE FISCAL AGENT AND THE PAYING
AGENT.
(a) The Trustee, the Fiscal Agent and the Paying Agent each shall
undertake to perform only those duties as are specifically set forth in this
Agreement and no implied covenants or obligations shall be read into this
Agreement against the Trustee, the Fiscal Agent or the Paying Agent. Any
permissive right of the Trustee, the Fiscal Agent or the Paying Agent provided
for in this Agreement shall not be construed as a duty of the Trustee, the
Fiscal Agent or the Paying Agent. The Trustee, the Fiscal Agent and the Paying
Agent each shall exercise such of the rights and powers vested in it by this
Agreement and following the occurrence and during the continuation of any Event
of Default hereunder, the Trustee and Fiscal Agent and the Paying Agent each
shall use the same degree of care and skill in its exercise as a prudent Person
would exercise or use under the circumstances in the conduct of such Person's
own affairs.
(b) The Trustee, the Fiscal Agent or the Paying Agent, as applicable,
upon receipt of all resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments furnished to the Trustee, the Fiscal
Agent or the Paying Agent , as the case may be, which are specifically required
to be furnished pursuant to any provision of this Agreement, shall examine them
to determine whether they on their face conform to the requirements of this
Agreement; provided that the Trustee, the Fiscal Agent or the Paying Agent, as
the case may be, shall not be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by the Master Servicer or any other Person to it
pursuant to this Agreement. If any such instrument is found on its face not to
conform to the requirements of this Agreement, the Trustee or the Paying Agent
shall request the providing party to correct the instrument and if not so
corrected, the Trustee shall inform the Certificateholders.
(c) Neither the Trustee, the Fiscal Agent nor the Paying Agent nor any
of their respective directors, officers, employees, agents or Controlling
Persons shall have any liability to the Trust or the Certificateholders arising
out of or in connection with this Agreement, except for their respective
negligence or willful misconduct. No provision of this Agreement shall be
construed to relieve the Trustee, the Fiscal Agent, the Paying Agent or any of
their respective directors, officers, employees, agents or Controlling Persons
from liability for their own negligent action, their own
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negligent failure to act or their own willful misconduct or bad faith; provided
that:
(i) neither the Trustee, the Fiscal Agent nor the Paying Agent
nor any of their respective directors, officers, employees, agents or
Controlling Persons shall be personally liable with respect to any action taken,
suffered or omitted to be taken by it in its reasonable business judgment in
accordance with this Agreement or at the direction of Holders of Certificates
evidencing not less than a majority of the outstanding Certificate Balance of
the Certificates;
(ii) no provision of this Agreement shall require either the
Trustee, the Fiscal Agent or the Paying Agent to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it;
(iii) neither the Trustee, the Fiscal Agent nor the Paying
Agent nor any of their respective directors, officers, employees, agents or
Controlling Persons shall be responsible for any act or omission of the Master
Servicer, the Special Servicer, the Depositor or either Seller, or for the acts
or omissions of each other, including, without limitation, in connection with
actions taken pursuant to this Agreement;
(iv) the execution by the Trustee or the Paying Agent of any
forms or plans of liquidation in connection with any REMIC Pool shall not
constitute a representation by the Trustee or the Paying Agent as to the
adequacy of such form or plan of liquidation;
(v) none of the Trustee, the Fiscal Agent nor the Paying Agent
shall be under any obligation to appear in, prosecute or defend any legal action
which is not incidental to its duties as Trustee, the Fiscal Agent or the Paying
Agent, as applicable in accordance with this Agreement. In such event, all legal
expense and costs of such action shall be expenses and costs of the Trust, and
the Trustee, the Paying Agent and the Fiscal Agent shall be entitled to be
reimbursed therefor from the Certificate Account pursuant to Section 5.2(a)(vi);
and
(vi) neither the Trustee, the Fiscal Agent nor the Paying
Agent shall be charged with knowledge of any failure by the Master Servicer or
the Special Servicer or by each other to comply with its obligations under this
Agreement or any act, failure, or breach of any Person upon the occurrence of
which the Trustee, the Fiscal Agent or the Paying Agent may be required to act,
unless a Responsible Officer of the Trustee, the Fiscal Agent or the Paying
Agent, as the case may be, obtains actual knowledge of such failure.
(d) For so long as the Certificates are listed on the Luxembourg Stock
Exchange, the Depositor shall cause the continuing obligations under the listing
rules for the Luxembourg Stock Exchange to be complied with in respect of the
Certificates. The Trustee, the Fiscal Agent and the Paying Agent shall not be
liable for a failure in compliance with such continuing obligations under the
listing rules of the Luxembourg Stock Exchange if such failure is caused by the
negligence or willful misconduct of the Luxembourg Paying Agent.
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SECTION 7.2 CERTAIN MATTERS AFFECTING THE TRUSTEE, THE FISCAL AGENT AND
THE PAYING AGENT.
(a) Except as otherwise provided in Section 7.1:
(i) the Trustee, the Fiscal Agent and the Paying Agent each
may request, and may rely and shall be protected in acting or refraining from
acting upon any resolution, Officer's Certificate, certificate of auditors or
any other certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(ii) the Trustee, the Fiscal Agent and the Paying Agent each
may consult with counsel and the advice of such counsel and any Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) neither the Trustee nor the Fiscal Agent nor the Paying
Agent nor any of their respective directors, officers, employees, agents or
Controlling Persons shall be personally liable for any action taken, suffered or
omitted by such Person in its reasonable business judgment and reasonably
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(iv) the Trustee and the Paying Agent shall not be under any
obligation to exercise any remedies after default as specified in this Agreement
or to institute, conduct or defend any litigation hereunder or relating hereto
or make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document (provided the same appears
regular on its face), unless requested in writing to do so by Holders of at
least 25% of the Aggregate Certificate Balance of the Certificates then
outstanding provided that, if the payment within a reasonable time to the
Trustee or the Paying Agent, as applicable, of the costs, expenses or
liabilities likely to be incurred by it in connection with the foregoing is, in
the opinion of such Person not reasonably assured to such Person by the security
afforded to it by the terms of this Agreement, such Person may require
reasonable indemnity against such expense or liability or payment of such
estimated expenses as a condition to proceeding. The reasonable expenses of the
Trustee or the Paying Agent, as applicable, shall be paid by the
Certificateholders requesting such examination;
(v) the Trustee, the Fiscal Agent and the Paying Agent each
may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys, which agents or
attorneys shall have any or all of the rights, powers, duties and obligations of
the Trustee, the Fiscal Agent and the Paying Agent conferred on them by such
appointment; provided that each of the Trustee, the Fiscal Agent and the Paying
Agent, as the case may be, shall continue to be responsible for its duties and
obligations hereunder and shall not be liable for the actions or omissions of
the Master Servicer, the Special Servicer, the Depositor or the actions or
omissions of each other;
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(vi) neither the Trustee nor the Fiscal Agent nor the Paying
Agent shall be required to obtain a deficiency judgment against a Mortgagor;
(vii) neither the Trustee nor the Fiscal Agent nor the Paying
Agent shall be required to expend its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such liability is not assured to it;
(viii) neither the Trustee nor the Fiscal Agent nor the Paying
Agent shall be liable for any loss on any investment of funds pursuant to this
Agreement;
(ix) unless otherwise specifically required by law, neither
the Trustee nor the Fiscal Agent nor the Paying Agent shall be required to post
any surety or bond of any kind in connection with the execution or performance
of its duties hereunder; and
(x) except as specifically provided hereunder in connection
with the performance of its specific duties, neither the Trustee nor the Fiscal
Agent nor the Paying Agent shall be responsible for any act or omission of the
Master Servicer, the Special Servicer, the Depositor or of each other.
(b) Following the Closing Date, the Trustee shall not accept any
contribution of assets to the Trust not specifically contemplated by this
Agreement unless the Trustee shall have received a Nondisqualification Opinion
at the expense of the Person desiring to contribute such assets with respect to
such contribution.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
any proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
(d) The Trustee shall timely pay, from its own funds, the amount of any
and all federal, state and local taxes imposed on the Trust or its assets or
transactions including, without limitation, (A) "prohibited transaction" penalty
taxes as defined in Section 860F of the Code, if, when and as the same shall be
due and payable, (B) any tax on contributions to a REMIC after the Closing Date
imposed by Section 860G(d) of the Code and (C) any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, but only if
such taxes arise out of a breach by the Trustee of its obligations hereunder,
which breach constitutes negligence or willful misconduct of the Trustee.
(e) The Paying Agent shall timely pay, from its own funds, the amount
of any and all federal, state and local taxes imposed on the Trust or its assets
or transactions including, without limitation, (A) "prohibited transaction"
penalty taxes as defined in Section 860F of the Code, if, when and as the same
shall be due and payable, (B) any tax on contributions to a REMIC after the
Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net
income from foreclosure property" as defined in Section 860G(c) of the Code, but
only if such taxes arise out of a breach by the Paying Agent of its obligations
hereunder, which breach constitutes negligence or willful misconduct of the
Paying Agent.
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SECTION 7.3 THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT NOT
LIABLE FOR CERTIFICATES OR INTERESTS OR MORTGAGE LOANS. The Trustee, the Fiscal
Agent and the Paying Agent each makes no representations as to the validity or
sufficiency of this Agreement, the information contained in the Private
Placement Memorandum, the Preliminary Prospectus Supplement, the Final
Prospectus Supplement or Prospectus for the REMIC III Certificates or Residual
Certificates (other than the Certificate of Authentication on the Certificates
if the Paying Agent is the Authenticating Agent) or of any Mortgage Loan,
Assignment of Mortgage or related document save that (i) each of the Trustee,
the Fiscal Agent and the Paying Agent represents that, assuming due execution
and delivery by the other parties hereto, this Agreement has been duly
authorized, executed and delivered by it and constitutes its valid and binding
obligation, enforceable against it in accordance with its terms except that such
enforceability may be subject to (A) applicable bankruptcy and insolvency laws
and other similar laws affecting the enforcement of the rights of creditors
generally, and (B) general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law and (ii) the
Trustee represents that, assuming due execution and delivery by the other
parties hereto, this Agreement has been duly authorized, executed and delivered
by it and constitutes its valid and binding obligation, enforceable against it
in accordance with its terms except that such enforceability may be subject to
(A) applicable bankruptcy and insolvency laws and other similar laws affecting
the enforcement of the rights of creditors generally, and (B) general principles
of equity regardless of whether such enforcement is considered in a proceeding
in equity or at law. None of the Trustee, the Fiscal Agent or the Paying Agent
shall be accountable for the use or application by the Depositor or the Master
Servicer or the Special Servicer or by each other of any of the Certificates or
any of the proceeds of such Certificates, or for the use or application by the
Depositor or the Master Servicer or the Special Servicer or by each other of
funds paid in consideration of the assignment of the Mortgage Loans to the Trust
or deposited into the Distribution Account or any other fund or account
maintained with respect to the Certificates or any account maintained pursuant
to this Agreement or for investment of any such amounts. No recourse shall be
had for any claim based on any provisions of this Agreement, the Private
Placement Memorandum, the Preliminary Prospectus Supplement, the Final
Prospectus Supplement, the Prospectus or the Certificates (except with respect
to the Trustee and Fiscal Agent to the extent of information furnished by the
Trustee and the Fiscal Agent under the caption entitled "DESCRIPTION OF THE
OFFERED CERTIFICATES -- The Trustee and the Fiscal Agent" and with respect to
the Paying Agent, to the extent of information furnished by the Paying Agent
under the caption "DESCRIPTION OF THE OFFERED CERTIFICATES-- Paying Agent,
Certificate Registrar and Authenticating Agent" each in the Preliminary
Prospectus Supplement and the Final Prospectus Supplement), the Mortgage Loans
or the assignment thereof against the Trustee, the Fiscal Agent or the Paying
Agent in such Person's individual capacity and any such claim shall be asserted
solely against the Trust or any indemnitor who shall furnish indemnity as
provided herein. Neither the Trustee nor the Fiscal Agent nor the Paying Agent
shall be liable for any action or failure of any action by the Depositor or the
Master Servicer or the Special Servicer or by each other hereunder. Neither the
Trustee nor the Fiscal Agent nor the Paying Agent shall at any time have any
responsibility or liability for or with respect to the legality, validity or
enforceability of the Mortgages or the Mortgage Loans, or the perfection and
priority of the Mortgages or the maintenance of any such perfection and
priority, or for or with respect to the efficacy of the Trust or its ability to
generate
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the payments to be distributed to Certificateholders under this Agreement,
including, without limitation, the existence, condition and ownership of any
Mortgaged Property; the existence and enforceability of any hazard insurance
thereon; the validity of the assignment of the Mortgage Loans to the Trust or of
any intervening assignment; the completeness of the Mortgage Loans; the
performance or enforcement of the Mortgage Loans (other than if the Trustee
shall assume the duties of the Master Servicer); the compliance by the
Depositor, each Seller, the Mortgagor or the Master Servicer or the Special
Servicer or by each other with any warranty or representation made under this
Agreement or in any related document or the accuracy of any such warranty or
representation made under this Agreement or in any related document prior to the
receipt by a Responsible Officer of the Trustee of notice or other discovery of
any non-compliance therewith or any breach thereof; any investment of monies by
or at the direction of the Master Servicer or the Special Servicer or any loss
resulting therefrom; the failure of the Master Servicer or any Sub-Servicer or
the Special Servicer to act or perform any duties required of it on behalf of
the Trustee hereunder; or any action by the Trustee taken at the instruction of
the Master Servicer or the Special Servicer.
SECTION 7.4 THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT MAY OWN
CERTIFICATES. Each of the Trustee, the Fiscal Agent and the Paying Agent in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not the Trustee, the Fiscal Agent
or the Paying Agent, as the case may be.
SECTION 7.5 ELIGIBILITY REQUIREMENTS FOR THE TRUSTEE, THE FISCAL AGENT
AND THE PAYING AGENT. The Trustee hereunder shall at all times be (i) an
institution insured by the FDIC, (ii) a corporation, national bank or national
banking association authorized to exercise corporate trust powers, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority, and (iii) an
institution whose short-term debt obligations are at all times rated not less
than "Prime-1" by Xxxxx'x and "A-1" by S&P and whose long-term senior unsecured
debt is at all times rated not less than "AA-" by S&P (unless a Fiscal Agent is
appointed that has a long-term unsecured rating that is at least "AA" by S&P)
and "Aa2" by Xxxxx'x (unless a Fiscal Agent is appointed that has a long-term
unsecured rating that is at least "Aa2" by Xxxxx'x) or otherwise acceptable to
the Rating Agencies as evidenced by a Rating Agency Confirmation. If such
corporation, national bank or national banking association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then, for the purposes of this
Section, the combined capital and surplus of such corporation, national bank or
national banking association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with
provisions of this Section, the Trustee or the Fiscal Agent shall resign
immediately in the manner and with the effect specified in Section 7.6.
(b) The Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers and shall be
rated at least "A" by S&P and "A2" by Xxxxx'x, unless and to the extent Rating
Agency Confirmation is obtained.
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SECTION 7.6 RESIGNATION AND REMOVAL OF THE TRUSTEE, THE FISCAL AGENT OR
THE PAYING AGENT.
(a) The Trustee, the Fiscal Agent or the Paying Agent may at any time
resign and be discharged from the trusts hereby created by giving written notice
thereof to the Depositor, the Master Servicer and the Rating Agencies; provided
that such resignation shall not be effective until its successor shall have
accepted the appointment. Upon receiving such notice of resignation, the
Depositor will promptly appoint a successor trustee, fiscal agent or paying
agent, as the case may be, except in the case of the initial Trustee or Fiscal
Agent, in which case both shall be so replaced but may be replaced under this
paragraph sequentially, by written instrument, one copy of which instrument
shall be delivered to the resigning Trustee or the Fiscal Agent, one copy to the
successor trustee and one copy to each of the Master Servicer, the Paying Agent
and the Rating Agencies. If no successor trustee, fiscal agent or paying agent
shall have been so appointed, as the case may be, and shall have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Trustee, the Fiscal Agent or the Paying Agent, as the case may be, may
petition any court of competent jurisdiction for the appointment of a successor
trustee, fiscal agent or paying agent, as the case may be. It shall be a
condition to the appointment of a successor trustee or fiscal agent that such
entity satisfies the eligibility requirements set forth in Section 7.5.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.5 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust or any REMIC Pool by any state
in which the Trustee or the Trust held by the Trustee is located solely because
of the location of the Trustee in such state; provided, however, that, if the
Trustee agrees to indemnify the Trust for such taxes, it shall not be removed
pursuant to this clause (iii), (iv) the continuation of the Trustee as such
would result in a downgrade, qualification or withdrawal of the rating by the
Rating Agencies of any Class of Certificates with a rating as evidenced in
writing by the Rating Agencies or (v) with respect with the initial Trustee, a
Fiscal Agent Termination Event has occurred unless the Trustee has satisfied the
ratings required by clause (iii) of Section 7.5, then the Depositor may remove
such Trustee and appoint a successor trustee by written instrument, one copy of
which instrument shall be delivered to the Trustee so removed, one copy to the
successor trustee and one copy to each of the Master Servicer and the Rating
Agencies. In the case of removal under clauses (i), (ii), (iii) and (iv) above,
the Trustee shall bear all such costs of transfer. Such succession shall take
effect after a successor trustee has been appointed. In the case of the removal
of the initial Trustee, the Depositor shall also remove the Fiscal Agent. In
this case, the procedures and liability for costs of such removal shall be the
same as they are stated in subsection (c) with respect to the Fiscal Agent.
(c) If at any time (i) the Fiscal Agent shall cease to be eligible in
accordance with the provisions of Section 7.5 and shall fail to resign after
written request therefor by the Depositor, or (ii) a Fiscal Agent Termination
Event has occurred, then the Depositor shall send a
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written notice of termination to the Fiscal Agent (which notice shall specify
the reason for such termination) and remove such Fiscal Agent and appoint a
successor Fiscal Agent by written instrument, one copy of which instrument shall
be delivered to the Fiscal Agent so removed, one copy to the successor Fiscal
Agent, and one copy to each of the Trustee, the Master Servicer and the Rating
Agencies. In all such cases, the Fiscal Agent shall bear all costs of transfer
to a successor Fiscal Agent, such succession only to take effect after a
successor Fiscal Agent has been appointed. In the case of the initial Fiscal
Agent, the Depositor may, but is not required to, also remove the Trustee. In
this case, the procedures and liability for costs of such removal shall be the
same as they are stated in subsection (b) with respect to the Trustee.
(d) If at any time (i) the Paying Agent shall cease to be eligible in
accordance with the provisions of Section 7.5(b) and shall fail to resign after
written request therefor by the Depositor, (ii) the Paying Agent shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Paying Agent or of its property shall be appointed, or any public officer
shall take charge or control of the Paying Agent or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust or any REMIC Pool by any state
in which the Paying Agent is located solely because of the location of the
Paying Agent in such state; provided, however, that, if the Paying Agent agrees
to indemnify the Trust for such taxes, it shall not be removed pursuant to this
clause (iii), or (iv) the continuation of the Paying Agent as such would result
in a downgrade, qualification or withdrawal, as applicable, of the rating by the
Rating Agencies of any Class of Certificates with a rating as evidenced in
writing by the Rating Agencies, then the Depositor or the Trustee shall send a
written notice of termination to the Paying Agent (which notice shall specify
the reason for such termination) and remove such Paying Agent and the Depositor
shall appoint a successor Paying Agent by written instrument, one copy of which
instrument shall be delivered to the Paying Agent so removed, one copy to the
successor Paying Agent, and one copy to each of the Trustee, the Master Servicer
and the Rating Agencies. In all such cases, the Paying Agent shall bear all
costs of transfer to a successor Paying Agent, such succession only to take
effect after a successor Paying Agent has been appointed.
(e) The Holders of more than 50% of the Aggregate Certificate Balance
of the Certificates then outstanding may for cause upon 30 days' written notice
to the Trustee, the Fiscal Agent or the Paying Agent, as the case may be, and to
the Depositor remove the Trustee, the Fiscal Agent or the Paying Agent, as the
case may be, by such written instrument, signed by such Holders or their
attorney-in-fact duly authorized, one copy of which instrument shall be
delivered to the Depositor and one copy to the Trustee, the Fiscal Agent or the
Paying Agent, as the case may be, so removed; the Depositor shall thereupon use
its best efforts to appoint a successor Trustee or Fiscal Agent or the Paying
Agent, as the case may be, in accordance with this Section.
(f) Any resignation or removal of the Trustee, the Fiscal Agent or the
Paying Agent, as the case may be, and appointment of a successor trustee, fiscal
agent or paying agent pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee, fiscal
agent or paying agent, as the case may be, as provided in Section 7.7. Upon any
succession of the Trustee, the Fiscal Agent or the Paying Agent under this
Agreement, the predecessor Trustee, Fiscal Agent or Paying Agent, as the case
may be, shall be entitled to the payment of compensation and reimbursement
agreed to under this
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Agreement for services rendered and expenses incurred. The Trustee, the Fiscal
Agent or the Paying Agent shall not be liable for any action or omission of any
successor Trustee, Fiscal Agent or Paying Agent, as the case may be.
SECTION 7.7 SUCCESSOR TRUSTEE, FISCAL AGENT OR PAYING AGENT.
(a) Any successor Trustee, Fiscal Agent or Paying Agent appointed as
provided in Section 7.6 shall execute, acknowledge and deliver to the Depositor
and to its predecessor Trustee, Fiscal Agent or Paying Agent, as the case may
be, an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee, Fiscal Agent or Paying Agent,
as the case may be, shall become effective and such successor Trustee, Fiscal
Agent or Paying Agent, as the case may be, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Trustee, Fiscal Agent or Paying Agent herein. The predecessor Trustee,
Fiscal Agent or Paying Agent shall deliver (at such predecessor's own expense)
to the successor Trustee, Fiscal Agent or Paying Agent all Mortgage Files and
documents and statements related to the Mortgage Files held by it hereunder, and
the predecessor Trustee shall duly assign, transfer, deliver and pay over (at
such predecessor's own expense) to the successor Trustee, the entire Trust,
together with all instruments of transfer and assignment or other documents
properly executed necessary to effect such transfer. The predecessor Trustee,
Fiscal Agent or Paying Agent, as the case may be, shall also deliver all records
or copies thereof maintained by the predecessor Trustee, Fiscal Agent or Paying
Agent in the administration hereof as may be reasonably requested by the
successor Trustee, Fiscal Agent or Paying Agent, as applicable, and shall
thereupon be discharged from all duties and responsibilities under this
Agreement. In addition, the Depositor and the predecessor Trustee, Fiscal Agent
or Paying Agent shall execute and deliver such other instruments and do such
other things as may reasonably be required to more fully and certainly vest and
confirm in the successor Trustee, Fiscal Agent or Paying Agent, as the case may
be, all such rights, powers, duties and obligations. Anything herein to the
contrary notwithstanding, in no event shall the combined fees payable to a
successor Trustee exceed the Trustee Fee.
(b) No successor Trustee, Fiscal Agent or Paying Agent shall accept
appointment as provided in this Section unless at the time of such appointment
such successor Trustee, Fiscal Agent or Paying Agent, as the case may be, shall
be eligible under the provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee, Fiscal Agent
or Paying Agent as provided in this Section, the successor Trustee, Fiscal Agent
or Paying Agent shall mail notice of the succession of such Trustee, Fiscal
Agent or Paying Agent hereunder to all Holders of Certificates at their
addresses as shown in the Certificate Register and to the Rating Agencies. The
expenses of such mailing shall be borne by the successor Trustee, Fiscal Agent
or Paying Agent. If the successor Trustee, Fiscal Agent or Paying Agent fails to
mail such notice within 10 days after acceptance of appointment by the successor
Trustee, Fiscal Agent or Paying Agent, the Master Servicer shall cause such
notice to be mailed at the expense of the successor Trustee, Fiscal Agent or
Paying Agent, as applicable.
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SECTION 7.8 MERGER OR CONSOLIDATION OF TRUSTEE, FISCAL AGENT OR PAYING
AGENT. Any Person into which the Trustee, Fiscal Agent or Paying Agent may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Trustee,
Fiscal Agent or Paying Agent shall be a party, or any Persons succeeding to the
business of such Trustee, Fiscal Agent or Paying Agent, shall be the successor
of such Trustee, Fiscal Agent or Paying Agent, as the case may be, hereunder, as
applicable, provided that such Person shall be eligible under the provisions of
Section 7.5, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 7.9 APPOINTMENT OF CO-TRUSTEE, SEPARATE TRUSTEE, AGENTS OR
CUSTODIAN.
(a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or, in the case of the Trust, the Certificateholders
evidencing more than 50% of the Aggregate Certificate Balance of the
Certificates then outstanding shall each have the power from time to time to
appoint one or more Persons to act either as co-trustees jointly with the
Trustee or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee is advised by the Master Servicer or Special Servicer that such separate
trustee or co-trustee is necessary or advisable) under the laws of any state in
which a property securing a Mortgage Loan is located or for the purpose of
otherwise conforming to any legal requirement, restriction or condition in any
state in which a property securing a Mortgage Loan is located or in any state in
which any portion of the Trust is located. The separate trustees, co-trustees,
or custodians so appointed shall be trustees or custodians for the benefit of
all the Certificateholders, shall have such powers, rights and remedies as shall
be specified in the instrument of appointment and shall be deemed to have
accepted the provisions of this Agreement; provided that no such appointment
shall, or shall be deemed to, constitute the appointee an agent of the Trustee;
provided, further that the Trustee shall be liable for the actions of any
co-trustee or separate trustee appointed by it and shall have no liability for
the actions of any co-trustee or separate trustee appointed by the Depositor or
the Certificateholders pursuant to this paragraph.
(b) The Trustee or the Paying Agent, as the case may be, may from time
to time appoint one or more independent third-party agents to perform all or any
portion of its administrative duties hereunder (i.e., collection and
distribution of funds, preparation and dissemination of reports, monitoring
compliance, etc.). The Trustee or the Paying Agent, as the case may be, shall
supervise and oversee such agents appointed by it. The terms of any arrangement
or agreement between the Trustee or the Paying Agent, as the case may be, and
such agent, may be terminated, without cause and without the payment of any
termination fees in the event the Trustee or the Paying Agent, as the case may
be, is terminated in accordance with this Agreement. In addition, neither the
Trust nor the Certificateholders shall have any liability or direct obligation
to such agent. Notwithstanding the terms of any such agreement, the Trustee or
the Paying Agent, as the case may be, shall remain at all times obligated and
liable to the Trust and the Certificateholders for performing its duties
hereunder.
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(c) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon
the Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee, co-trustee, or
custodian jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer hereunder) the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations, including the holding of title to the
Trust or any portion thereof in any such jurisdiction, shall be exercised and
performed by such separate trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally
liable by reason of any act or omission of any other trustee or custodian
hereunder; and
(iv) the Trustee or, in the case of the Trust, the
Certificateholders evidencing more than 50% of the Aggregate Principal Amount of
the Certificates then outstanding may at any time accept the resignation of or
remove any separate trustee, co-trustee or custodian, so appointed by it or
them, if such resignation or removal does not violate the other terms of this
Agreement.
(d) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee, co-trustee or custodian shall refer to this Agreement and the
conditions of this Article VII. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee.
(e) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
(f) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
7.5 hereof and no notice to Certificateholders of the appointment of any
separate trustee, co-trustee or custodian hereunder shall be required.
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(g) The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
(h) The Trustee shall pay the reasonable compensation of the
co-trustees, separate trustees or custodians appointed by the Trustee pursuant
to this Section 7.9 to the extent, and in accordance with the standards,
specified in Section 7.12 hereof.
(i) Subject to the consent of the Depositor, which consent
shall not be unreasonably withheld, the Trustee, at its sole cost and expense,
may appoint at any time a successor Custodian. Until such time as the Trustee
appoints a successor Custodian, the Trustee shall be the Custodian hereunder.
Upon the appointment of a successor custodian, the Trustee and the Custodian
shall enter into a custodial agreement.
SECTION 7.10 AUTHENTICATING AGENTS.
(a) The Paying Agent shall serve as the initial Authenticating Agent
hereunder for the purpose of executing and authenticating Certificates. Any
successor Authenticating Agent must be acceptable to the Depositor and must be a
corporation or national bank organized and doing business under the laws of the
United States of America or of any state and having a principal office and place
of business in the Borough of Manhattan in the City and State of New York,
having a combined capital and surplus of at least $50,000,000, authorized under
such laws to do a trust business and subject to supervision or examination by
federal or state authorities.
(b) Any Person into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Authenticating Agent shall be a
party, or any Person succeeding to the corporate agency business of the
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) The Authenticating Agent may at any time resign by giving at least
30 days' advance written notice of resignation to the Trustee and the Depositor.
The Trustee may at any time terminate the agency of the Authenticating Agent by
giving written notice of termination to the Authenticating Agent and the
Depositor; provided that the Trustee may not terminate the Paying Agent as
Authenticating Agent unless the Paying Agent shall be removed as Paying Agent
hereunder. Upon receiving a notice of resignation or upon such a termination, or
in case at any time the Authenticating Agent shall cease to be eligible in
accordance with the provisions of Section 7.10(a), the Trustee may appoint a
successor Authenticating Agent, shall give written notice of such appointment to
the Depositor and shall mail notice of such appointment to all Holders of
Certificates. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. No such Authenticating Agent shall be
appointed unless eligible under the provisions of Section 7.10(a). No
Authenticating Agent shall have responsibility or liability for any action taken
by it as such at the direction of the Trustee.
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SECTION 7.11 INDEMNIFICATION OF TRUSTEE, THE FISCAL AGENT AND THE
PAYING AGENT.
(a) The Trustee, the Fiscal Agent, the Certificate Registrar and the
Paying Agent and each of its respective directors, officers, employees, agents
and Controlling Persons shall be entitled to indemnification from the Trust for
any and all claims, losses, penalties, fines, forfeitures, legal fees and
related costs, judgments and any other costs, liabilities, fees and expenses
incurred in connection with any legal action incurred without negligence or
willful misconduct on their respective part, arising out of, or in connection
with this Agreement, the Certificates and the acceptance or administration of
the trusts or duties created hereunder (including, without limitation, any
unanticipated loss, liability or expense incurred in connection with any action
or inaction of the Master Servicer, the Special Servicer or the Depositor or of
each other such Person hereunder but only to the extent the Trustee, the Fiscal
Agent, the Certificate Registrar or the Paying Agent, as the case may be, is
unable to recover within a reasonable period of time such amount from such third
party pursuant to this Agreement) including the costs and expenses of defending
themselves against any claim in connection with the exercise or performance of
any of their powers or duties hereunder and the Trustee, the Fiscal Agent, the
Certificate Registrar and the Paying Agent and each of their respective
directors, officers, employees, agents and Controlling Persons shall be entitled
to indemnification from the Trust for any unanticipated loss, liability or
expense incurred in connection with the provision by the Trustee, the Fiscal
Agent, the Certificate Registrar and the Paying Agent of the reports required to
be provided by it pursuant to this Agreement; provided that:
(i) with respect to any such claim, the Trustee, the Fiscal
Agent, the Certificate Registrar or the Paying Agent, as the case may be, shall
have given the Depositor, the Master Servicer, the Sellers, each other and the
Holders of the Certificates written notice thereof promptly after a Responsible
Officer of the Trustee, the Fiscal Agent, the Certificate Registrar or the
Paying Agent, as the case may be, shall have knowledge thereof; provided,
however, that failure to give such notice to the Depositor, Master Servicer, the
Sellers, each other and the Holders of Certificates shall not affect the
Trustee's, Fiscal Agent's, Certificate Registrar's or Paying Agent's, as the
case may be, rights to indemnification herein unless the Depositor's defense of
such claim on behalf of the Trust is materially prejudiced thereby;
(ii) while maintaining control over its own defense, the
Trustee, the Fiscal Agent, the Certificate Registrar or the Paying Agent, as the
case may be, shall cooperate and consult fully with the Depositor in preparing
such defense; and
(iii) notwithstanding anything to the contrary in this Section
7.11, the Trust shall not be liable for settlement of any such claim by the
Trustee, the Fiscal Agent, the Certificate Registrar or the Paying Agent, as the
case may be, entered into without the prior consent of the Depositor, which
consent shall not be unreasonably withheld.
(b) The provisions of this Section 7.11 shall survive any termination
of this Agreement and the resignation or removal of the Trustee, the Fiscal
Agent, the Certificate Registrar or the Paying Agent, as the case may be.
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(c) The Depositor shall indemnify and hold harmless the Trustee, the
Fiscal Agent, the Certificate Registrar or the Paying Agent, as the case may be,
their respective directors, officers, employees or agents and Controlling
Persons from and against any loss, claim, damage or liability, joint or several,
and any action in respect thereof, to which the Trustee, the Fiscal Agent, the
Certificate Registrar or the Paying Agent, as the case may be, their respective
directors, officers, employees or agents or Controlling Person may become
subject under the 1933 Act, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon any untrue statement or alleged untrue
statement of a material fact contained in the Private Placement Memorandum, the
Preliminary Prospectus Supplement, the Final Prospectus Supplement or the
Prospectus, or arises out of, or is based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein in light of the circumstances under which they were
made, not misleading and shall reimburse the Trustee, the Fiscal Agent, the
Certificate Registrar or the Paying Agent, as the case may be, their respective
directors, officers, employees, agents or Controlling Person for any legal and
other expenses reasonably incurred by the Trustee, the Fiscal Agent, the
Certificate Registrar or the Paying Agent, as the case may be, or any such
director, officer, employee, agent or Controlling Person in investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action; provided, that the Depositor shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or action arises out of,
or is based upon, any untrue statement or alleged untrue statement or omission
made in any such Private Placement Memorandum, Preliminary Prospectus
Supplement, Final Prospectus Supplement or Prospectus in reliance upon and in
conformity with written information concerning the Trustee, the Fiscal Agent,
the Certificate Registrar or the Paying Agent, as the case may be, furnished to
the Depositor by or on behalf of such person specifically for inclusion therein.
It is hereby expressly agreed that the only written information provided by the
Trustee, the Fiscal Agent, the Certificate Registrar or the Paying Agent, as the
case may be, for inclusion in the Preliminary Prospectus Supplement and Final
Prospectus Supplement is set forth in the case of the Trustee in the second,
fourth and fifth sentences and in the case of the Fiscal Agent in the
penultimate sentence under the caption entitled "DESCRIPTION OF THE OFFERED
CERTIFICATES--The Trustee and the Fiscal Agent" and in the case of the Paying
Agent, the third and fourth sentences under the "DESCRIPTION OF THE OFFERED
CERTIFICATES--The Paying Agent, Certificate Registrar and the Authenticating
Agent". The Trustee, the Fiscal Agent, the Certificate Registrar or the Paying
Agent, as the case may be, shall immediately notify the Depositor and the
Sellers if a claim is made by a third party with respect to this Section 7.11(c)
entitling such person, its directors, officers, employees, agents or Controlling
Person to indemnification hereunder, whereupon the Depositor shall assume the
defense of any such claim (with counsel reasonably satisfactory to such person)
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. Any failure to so notify the
Depositor shall not affect any rights the Trustee, the Fiscal Agent, the
Certificate Registrar or the Paying Agent, as the case may be, their respective
directors, officers, employees, agents or Controlling Person may have to
indemnification under this Section 7.11(c), unless the Depositor's defense of
such claim is materially prejudiced thereby. The indemnification provided herein
shall survive the termination of this Agreement and the resignation or removal
of the Trustee, the Fiscal Agent or the Paying Agent. The Depositor shall not be
indemnified by the
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Trust for any expenses incurred by the Depositor arising from any violation or
alleged violation of the 1933 Act or 1934 Act by the Depositor.
SECTION 7.12 FEES AND EXPENSES OF TRUSTEE, THE FISCAL AGENT AND THE
PAYING AGENT. The Trustee shall be entitled to receive the Trustee Fee (other
than the portion thereof constituting the Paying Agent Fee) and the Paying Agent
shall be entitled to receive the Paying Agent Fee, pursuant to Section
5.3(b)(ii) (which shall not be limited by any provision of law with respect to
the compensation of a trustee of an express trust), for all services rendered by
it in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties respectively, hereunder of the
Trustee and the Paying Agent. The Trustee, the Fiscal Agent and the Paying Agent
shall also be entitled to recover from the Trust all reasonable unanticipated
expenses and disbursements incurred or made by the Trustee, the Fiscal Agent and
the Paying Agent in accordance with any of the provisions of this Agreement
(including the reasonable compensation and the reasonable expenses and
disbursements of its counsel and other Persons not regularly in its employ), not
including expenses incurred in the ordinary course of performing its duties as
Trustee, Fiscal Agent or Paying Agent, respectively hereunder, and except any
such expense, disbursement or advance as may arise from the negligence or bad
faith of such Person or which is the responsibility of the Holders of the
Certificates hereunder. The provisions of this Section 7.12 shall survive any
termination of this Agreement and the resignation or removal of the Trustee, the
Fiscal Agent or the Paying Agent.
SECTION 7.13 COLLECTION OF MONEYS. Except as otherwise expressly
provided in this Agreement, the Trustee and the Paying Agent may demand payment
or delivery of, and shall receive and collect, all money and other property
payable to or receivable by the Trustee or the Paying Agent, as the case may be,
pursuant to this Agreement. The Trustee or the Paying Agent, as the case may be,
shall hold all such money and property received by it as part of the Trust and
shall distribute it as provided in this Agreement. If the Trustee or the Paying
Agent, as the case may be, shall not have timely received amounts to be remitted
with respect to the Mortgage Loans from the Master Servicer, the Trustee or the
Paying Agent, as the case may be, shall request the Master Servicer to make such
distribution as promptly as practicable or legally permitted. If the Trustee or
the Paying Agent, as the case may be, shall subsequently receive any such
amount, it may withdraw such request.
SECTION 7.14 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
(a) On and after the time the Master Servicer is terminated pursuant to
this Agreement, the Trustee shall be the successor in all respects to the Master
Servicer in its capacity under this Agreement and the transactions set forth or
provided for therein and shall have all the rights and powers and be subject to
all the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on the Master Servicer by the terms and provisions of this
Agreement; provided that, any failure to perform such duties or responsibilities
caused by the Master Servicer's failure to provide required information shall
not be considered a default by the Trustee hereunder. In addition, the Trustee
shall have no liability relating to (i) the representations and warranties of
the Master Servicer contained in this Agreement or (ii) any obligation incurred
by the Master Servicer prior to its termination or resignation (including,
without limitation, the Master Servicer's obligation to repay losses resulting
from the investment
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of funds in any account established under this Agreement), except any ongoing
obligations to the Primary Servicer arising after the termination of the Master
Servicer from their servicing rights and obligations under the applicable
Primary Servicing Agreement. In the Trustee's capacity as such successor, the
Trustee shall have the same limitations on liability granted to the Master
Servicer in this Agreement. As compensation therefor, the Trustee shall be
entitled to receive all the compensation payable to the Master Servicer set
forth in this Agreement, including, without limitation, the Master Servicing
Fee.
(b) Notwithstanding the above, the Trustee (A) may, if the Trustee is
unwilling to so act, or (B) shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint any established commercial
or multifamily mortgage finance institution, servicer or special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
meeting such other standards for a successor servicer as are set forth in this
Agreement and with respect to which Rating Agency Confirmation is obtained, as
the successor to the Master Servicer hereunder in the assumption of all of the
responsibilities, duties or liabilities of a servicer as Master Servicer
hereunder. Pending any such appointment, the Trustee shall act in such capacity
as hereinabove provided. Any entity designated by the Trustee as successor
Master Servicer may be an Affiliate of the Trustee; provided that, such
Affiliate must meet the standards for the Master Servicer as set forth herein.
In connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree subject to Section 8.10. The Trustee
and such successor shall take such actions, consistent with this Agreement as
shall be necessary to effectuate any such succession. The Master Servicer shall
cooperate with the Trustee and any successor servicer in effecting the
termination of the Master Servicer's responsibilities and rights under this
Agreement, including, without limitation, notifying Mortgagors of the assignment
of the servicing function and providing the Trustee and successor servicer all
documents and records in its possession in electronic or other form reasonably
requested by the successor servicer to enable the successor servicer to assume
the Master Servicer's functions hereunder and the transfer to the Trustee or
such successor servicer of all amounts which shall at the time be or should have
been deposited by the Master Servicer in the Certificate Account and any other
account or fund maintained with respect to the Certificates or thereafter be
received by the Master Servicer with respect to the Mortgage Loans. Neither the
Trustee nor any other successor servicer shall be deemed to be in default
hereunder by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof caused by (i) the failure of the
Master Servicer to deliver, or any delay in delivering, cash, documents or
records to it, or (ii) restrictions imposed by any regulatory authority having
jurisdiction over the Master Servicer. The Trustee shall be reimbursed for all
of its out-of-pocket expenses incurred in connection with obtaining such
successor Master Servicer by the Trust within 30 days of the Trustee's
submission of an invoice with respect thereto, to the extent such expenses have
not been reimbursed by the Master Servicer as provided herein; such expenses
paid by the Trust shall be deemed to be an Additional Trust Expense.
(c) On and after the time the Special Servicer is terminated pursuant
to this Agreement, in accordance with Section 9.30, the Trustee shall be the
successor in all respects to the Special Servicer in its capacity under this
Agreement and the transactions set forth or provided for therein and shall have
all the rights and powers and be subject to all the responsibilities, duties and
liabilities relating thereto and arising thereafter placed on the Special
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Servicer by the terms and provisions of this Agreement; provided that, any
failure to perform such duties or responsibilities caused by the Special
Servicer's failure to provide required information shall not be considered a
default by the Trustee hereunder. In addition, the Trustee shall have no
liability relating to (i) the representations and warranties of the Special
Servicer contained in this Agreement or (ii) any obligation incurred by the
Special Servicer prior to its termination or resignation. In the Trustee's
capacity as such successor, the Trustee shall have the same limitations on
liability granted to the Special Servicer in this Agreement. As compensation
therefor, the Trustee shall be entitled to receive all the compensation payable
to the Special Servicer set forth in this Agreement, including, without
limitation the Special Servicer Compensation (other than any Work-Out Fee
payable pursuant to Section 9.11).
(d) Notwithstanding the above, the Trustee may, if the Trustee shall
be unwilling to so act, or shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any established
commercial or multifamily mortgage finance institution, special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
and meeting such other standards for a successor Special Servicer as are set
forth in Section 9.21, and with respect to which Rating Agency Confirmation is
obtained, as the successor to the Special Servicer hereunder in the assumption
of all of the responsibilities, duties or liabilities of a special servicer as
Special Servicer hereunder. Pending any such appointment, the Trustee shall act
in such capacity as hereinabove provided. Any entity designated by the Trustee
as successor Special Servicer may be an Affiliate of the Trustee; provided that,
such Affiliate must meet the standards for a successor Special Servicer set
forth herein. In connection with such appointment and assumption, the Trustee
may make such arrangements for the compensation of such successor out of
payments on Mortgage Loans as it and such successor shall agree; provided that
no such compensation shall be in excess of that permitted to the Special
Servicer under this Agreement. The Trustee and such successor shall take such
actions, consistent with this Agreement as shall be necessary to effectuate any
such succession. The Special Servicer shall cooperate with the Trustee and any
successor Special Servicer in effecting the termination of the Special
Servicer's responsibilities and rights under this Agreement, including, without
limitation, notifying Mortgagors of Specially Serviced Mortgage Loans of the
assignment of the special servicing function and providing the Trustee and
successor Special Servicer all documents and records in its possession in
electronic or other form reasonably requested by the successor Special Servicer
to enable the successor Special Servicer to assume the Special Servicer's
functions hereunder and the transfer to the Trustee or such successor Special
Servicer of all amounts which shall at the time be or should have been deposited
by the Special Servicer in the Certificate Account and any other account or fund
maintained with respect to the Certificates or thereafter be received by the
Special Servicer with respect to the Mortgage Loans. Neither the Trustee nor any
other successor Special Servicer shall be deemed to be in default hereunder by
reason of any failure to make, or any delay in making, any distribution
hereunder or any portion thereof caused by (i) the failure of the Special
Servicer to deliver, or any delay in delivering, cash, documents or records to
it, or (ii) restrictions imposed by any regulatory authority having jurisdiction
over the Special Servicer. The Trustee shall be reimbursed for all of its
out-of-pocket expenses incurred in connection with obtaining such successor
Special Servicer by the Trust within 30 days of submission of an invoice with
respect thereto but only to the extent such expenses have not been reimbursed by
the Special Servicer as provided herein; and such expenses paid by the Trust
shall be deemed to be an Additional Trust Expense.
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SECTION 7.15 NOTIFICATION TO HOLDERS. Upon termination of the Master
Servicer, the Paying Agent or the Special Servicer, or appointment of a
successor to the Master Servicer, the Paying Agent or the Special Servicer, the
Trustee shall promptly mail notice thereof by first class mail to the Rating
Agencies, the Operating Adviser, the Sellers and the Certificateholders at their
respective addresses appearing on the Certificate Register.
SECTION 7.16 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE, THE FISCAL
AGENT AND THE PAYING AGENT.
(a) The Trustee hereby represents and warrants as of the date hereof
that:
(i) the Trustee is a national banking association, duly
organized, validly existing and in good standing under the laws governing its
creation and existence and has full power and authority to own its property, to
carry on its business as presently conducted, and to enter into and perform its
obligations under this Agreement;
(ii) the execution and delivery by the Trustee of this
Agreement have been duly authorized by all necessary action on the part of the
Trustee; neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated in this Agreement, nor compliance
with the provisions of this Agreement, will conflict with or result in a breach
of, or constitute a default under, (i) any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the Trustee
or its properties that would materially and adversely affect the Trustee's
ability to perform its obligations under this Agreement, (ii) the organizational
documents of the Trustee, or (iii) the terms of any material agreement or
instrument to which the Trustee is a party or by which it is bound; the Trustee
is not in default with respect to any order or decree of any court or any order,
regulation or demand of any federal, state, municipal or other governmental
agency, which default would materially and adversely affect its performance
under this Agreement;
(iii) the execution, delivery and performance by the Trustee
of this Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of, the
giving of notice to or the registration with any state, federal or other
governmental authority or agency, except such as has been or will be obtained,
given, effected or taken in order for the Trustee to perform its obligations
under this Agreement;
(iv) this Agreement has been duly executed and delivered by
the Trustee and, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid and binding obligation of the Trustee,
enforceable against the Trustee in accordance with its terms, subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other similar laws affecting creditors' rights generally as from
time to time in effect, and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and
(v) no litigation is pending or, to the Trustee's knowledge,
threatened, against the Trustee that, either in one instance or in the
aggregate, would draw into question the validity
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of this Agreement, or which would be likely to impair materially the ability of
the Trustee to perform under the terms of this Agreement.
(b) The Fiscal Agent hereby represents and warrants as of the date
hereof that:
(i) the Fiscal Agent is a foreign banking corporation duly
organized, validly existing and in good standing under the laws governing its
creation and existence and has full corporate power and authority to own its
property, to carry on its business as presently conducted, and to enter into and
perform its obligations under this Agreement;
(ii) the execution and delivery by the Fiscal Agent of this
Agreement have been duly authorized by all necessary corporate action on the
part of the Fiscal Agent; neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated in this Agreement, nor
compliance with the provisions of this Agreement, will conflict with or result
in a breach of, or constitute a default under, (i) any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on the
Fiscal Agent or its properties that would materially and adversely affect the
Fiscal Agent's ability to perform its obligations under this Agreement, (ii) the
organizational documents of the Fiscal Agent, or (iii) the terms of any material
agreement or instrument to which the Fiscal Agent is a party or by which it is
bound; the Fiscal Agent is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state, municipal or
other governmental agency, which default would materially and adversely affect
its performance under this Agreement;
(iii) the execution, delivery and performance by the Fiscal
Agent of this Agreement and the consummation of the transactions contemplated by
this Agreement do not require the consent, approval, authorization or order of,
the giving of notice to, or the registration with, any state, federal or other
governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered by
the Fiscal Agent and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the Fiscal
Agent, enforceable against the Fiscal Agent in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and
(v) no litigation is pending or, to the Fiscal Agent's
knowledge, threatened, against the Fiscal Agent that, either in any one instance
or in the aggregate, would draw into question the validity of this Agreement, or
which would be likely to impair materially the ability of the Fiscal Agent to
perform under the terms of this Agreement.
(c) The Paying Agent hereby represents and warrants as of the date
hereof that:
(i) the Paying Agent is a national banking association, duly
organized, validly existing and in good standing under the laws governing its
creation and
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existence and has full power and authority to own its property, to carry on its
business as presently conducted, and to enter into and perform its obligations
under this Agreement;
(ii) the execution and delivery by the Paying Agent of this
Agreement have been duly authorized by all necessary action on the part of the
Paying Agent; neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated in this Agreement, nor compliance
with the provisions of this Agreement, will conflict with or result in a breach
of, or constitute a default under, (i) any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the Paying
Agent or its properties that would materially and adversely affect the Paying
Agent's ability to perform its obligations under this Agreement, (ii) the
organizational documents of the Paying Agent, or (iii) the terms of any material
agreement or instrument to which the Paying Agent is a party or by which it is
bound; the Paying Agent is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state, municipal or
other governmental agency, which default would materially and adversely affect
its performance under this Agreement;
(iii) the execution, delivery and performance by the Paying
Agent of this Agreement and the consummation of the transactions contemplated by
this Agreement do not require the consent, approval, authorization or order of,
the giving of notice to or the registration with any state, federal or other
governmental authority or agency, except such as has been or will be obtained,
given, effected or taken in order for the Paying Agent to perform its
obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by
the Paying Agent and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the Paying
Agent, enforceable against the Paying Agent in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and
(v) there are no actions, suits or proceeding pending or, to
the best of the Paying Agent's knowledge, threatened, against the Paying Agent
that, either in one instance or in the aggregate, would draw into question the
validity of this Agreement, or which would be likely to impair materially the
ability of the Paying Agent to perform under the terms of this Agreement.
SECTION 7.17 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
MAINTAINED BY THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT. Each of the
Trustee, the Fiscal Agent and the Paying Agent, at its own respective expense,
shall maintain in effect a Fidelity Bond and a Errors and Omissions Insurance
Policy. The Errors and Omissions Insurance Policy and Fidelity Bond shall be
issued by a Qualified Insurer in form and in amount customary for trustees,
fiscal agents or paying agents in similar transactions (unless the Trustee, the
Fiscal Agent or the Paying Agent, as the case may be, self insures as provided
below). In the event that any such Errors and Omissions Insurance Policy or
Fidelity Bond ceases to be in
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effect, the Trustee, the Fiscal Agent or the Paying Agent, as the case may be,
shall obtain a comparable replacement policy or bond from an insurer or issuer
meeting the requirements set forth above as of the date of such replacement. So
long as the long-term debt rating of the Trustee, the Fiscal Agent or the Paying
Agent, as the case may be, is not less than "BBB" as rated by S&P, if rated by
S&P and "Baa1" as rated by Xxxxx'x, if rated by Xxxxx'x, respectively, the
Trustee, the Fiscal Agent or the Paying Agent, as the case may be, may
self-insure for the Fidelity Bond and the Errors and Omissions Insurance Policy.
SECTION 7.18 APPOINTMENT OF LUXEMBOURG PAYING AGENT; NOTIFICATION TO
CERTIFICATEHOLDERS.
(a) The Depositor shall maintain a paying agent in Luxembourg (the
"Luxembourg Paying Agent") for payments on the Certificates as well as a
transfer agent in Luxembourg (the "Luxembourg Transfer Agent") for so long as
such Certificates are listed on the Luxembourg Stock Exchange and the rules of
such exchange so require and the Depositor shall pay the reasonable fees of such
Luxembourg Paying Agent and Luxembourg Transfer Agent. The Depositor shall
appoint a successor Luxembourg Paying Agent if necessary. Except as set forth in
this Section 7.18(a), neither the Trustee nor the Paying Agent shall have any
responsibility for the actions or inactions of the Luxembourg Paying Agent,
including any failure of the Luxembourg Paying Agent to make timely
distributions to Certificateholders or beneficial owners (other than any such
failure resulting from the failure of the Paying Agent to timely remit funds but
only to the extent such failure is caused by the Paying Agent's negligence or
willful misconduct). The Certificate Registrar shall not be responsible for
transfers or exchanges requested at the office of the Luxembourg Transfer Agent
in Luxembourg until it receives written notice from such transfer agent,
together with the Certificates to be transferred or exchanged. The Luxembourg
Paying Agent shall each month download copies of all information made available
on the Paying Agent's internet website, print such information and make it
available to the Certificateholders upon request. The Luxembourg Paying Agent
shall not be the Paying Agent and the duties of the Luxembourg Paying Agent
hereunder shall be distinct from the duties of the Paying Agent.
(b) For so long as the Certificates are listed on the Luxembourg Stock
Exchange and the rules of the Luxembourg Stock Exchange so require, the
Depositor undertakes to cause the Luxembourg Paying Agent to publish all notices
to Certificateholders in a daily newspaper of general circulation in Luxembourg.
(c) For so long as any of the Certificates are listed on the Luxembourg
Stock Exchange and the rules of the Luxembourg Stock Exchange so require, the
Paying Agent shall make available or provide the following information on the
Paying Agent's internet website:
(i) to Clearstream, Euroclear and the Luxembourg Paying Agent
promptly upon determination, the Pass-Through Rates for the related Interest
Accrual Period, the amount of principal and interest distributable on the
related Distribution Date for each Class of Certificates, per $1,000 initial
Certificate Balance or Notional Amount and the date each distribution will be
made;
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(ii) to the Luxembourg Paying Agent on each Distribution Date,
the Certificate Balance or Notional Amount of the Certificates;
(iii) to the Luxembourg Paying Agent promptly following
availability, each report, certificate or statement required to be delivered to
the Luxembourg Paying Agent pursuant to Section 5.4;
(iv) to the Luxembourg Paying Agent promptly following receipt
thereof, all notices and reports regarding any termination of the Trustee or
Paying Agent or appointment of a successor to the Trustee or Paying Agent; and
(v) to the Luxembourg Paying Agent promptly following receipt
thereof, all notices and reports regarding any occurrence of an Event of
Default.
Information provided, as set forth above, by the Paying Agent to the
Luxembourg Paying Agent shall be supplied by the Luxembourg Paying Agent to the
Luxembourg Stock Exchange. Such information shall be made available to the
Certificateholders at the main office of the Luxembourg Paying Agent.
None of the Certificates will be listed on the Luxembourg
Stock Exchange or any other stock exchange.
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 8.1 SERVICING STANDARD; SERVICING DUTIES.
(a) Subject to the express provisions of this Agreement, for and on
behalf of the Trust and for the benefit of the Certificateholders as a whole,
and, solely as it relates to any A/B Mortgage Loan, for the benefit of the
holder of the related B Note, the Master Servicer shall service and administer
the Mortgage Loans and any B Note in accordance with the Servicing Standard and
the terms of this Agreement. Certain of the provisions of this Article VIII make
explicit reference to their applicability to Mortgage Loans and any B Note;
notwithstanding such explicit references, references to "Mortgage Loans"
contained in this Article VIII, unless otherwise specified, shall be construed
to refer also to such B Note (but any other terms that are defined in Article I
and used in this Article VIII shall be construed according to such definitions
without regard to this sentence).
In connection with such servicing and administration, the Master
Servicer shall seek to maximize the timely recovery of principal and interest on
the Mortgage Notes in the best economic interests of the Certificateholders as a
whole (or, in the case of any A/B Mortgage Loan, the Certificateholders and the
holder of the related B Note, all taken as a collective whole); provided,
however, that nothing herein contained shall be construed as an express or
implied guarantee by the Master Servicer of the collectability of payments on
the Mortgage Loans or shall be construed as impairing or adversely affecting any
rights or benefits specifically provided
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by this Agreement to the Master Servicer, including with respect to Master
Servicing Fees or the right to be reimbursed for Advances.
(b) The Master Servicer, in the case of an event specified in clause
(x) of this subclause (b), and the Special Servicer, in the case of an event
specified in clause (y) of this subclause (b), shall each send a written notice
to the other and to the Trustee and the Paying Agent, the Operating Adviser,
each Seller and, in the case of an A/B Mortgage Loan, the holder of the related
B Note, within two Business Days after becoming aware (x) that a Servicing
Transfer Event has occurred with respect to a Mortgage Loan or (y) that a
Mortgage Loan has become a Rehabilitated Mortgage Loan, which notice shall
identify the applicable Mortgage Loan and, in the case of an event specified in
clause (x) of this subclause (b) above, the Servicing Transfer Event that
occurred.
(c) With respect to each Mortgage Loan that is subject to an
Environmental Insurance Policy, for as long as it is not a Specially Serviced
Mortgage Loan, if the Master Servicer has actual knowledge of any event giving
rise to a claim under an Environmental Insurance Policy, the Master Servicer or
the applicable Primary Servicer shall notify the Special Servicer to such effect
and the Master Servicer shall take reasonable actions as are in accordance with
the Servicing Standard and the terms and conditions of such Environmental
Insurance Policy to make a claim thereunder and achieve the payment of all
amounts to which the Trust is entitled thereunder. Any legal fees or other
out-of-pocket costs incurred in accordance with the Servicing Standard in
connection with any such claim shall be paid by, and reimbursable to, the Master
Servicer as a Servicing Advance.
(d) In connection with any extension of the Maturity Date of a Mortgage
Loan, the Master Servicer shall give prompt written notice of such extension to
the insurer under the Environmental Insurance Policy and shall execute such
documents as are reasonably required by such insurer to procure an extension of
such policy (if available).
SECTION 8.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
MAINTAINED BY THE MASTER SERVICER. The Master Servicer, at its expense, shall
maintain in effect a Servicer Fidelity Bond and a Servicer Errors and Omissions
Insurance Policy. The Servicer Errors and Omissions Insurance Policy and
Servicer Fidelity Bond shall be issued by a Qualified Insurer (unless the Master
Servicer self insures as provided below) and be in form and amount consistent
with the Servicing Standard. In the event that any such Servicer Errors and
Omissions Insurance Policy or Servicer Fidelity Bond ceases to be in effect, the
Master Servicer shall obtain a comparable replacement policy or bond from an
insurer or issuer meeting the requirements set forth above as of the date of
such replacement. So long as the long-term rating of the Master Servicer is not
in any event less than "BBB" as rated by S&P and " Baa1" as rated by Xxxxx'x,
respectively, the Master Servicer may self-insure for the Servicer Fidelity Bond
and the Servicer Errors and Omissions Insurance Policy.
SECTION 8.3 MASTER SERVICER'S GENERAL POWER AND DUTIES.
(a) The Master Servicer shall service and administer the Mortgage Loans
and shall, subject to Sections 8.7, 8.18, 8.19, 8.27 and Article XII hereof and
as otherwise provided
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herein and by the Code, have full power and authority to do any and all things
which it may deem necessary or desirable in connection with such servicing and
administration in accordance with the Servicing Standard. To the extent
consistent with the foregoing and subject to any express limitations and
provisions set forth in this Agreement (and in the case of any A/B Mortgage
Loan, subject to the Intercreditor Agreement), such power and authority shall
include, without limitation, the right, subject to the terms hereof, (A) to
execute and deliver, on behalf of the Certificateholders (and in connection with
any B Note, the holder of the B Note) and the Trustee, customary consents or
waivers and other instruments and documents (including, without limitation,
estoppel certificates, financing statements, continuation statements, title
endorsements and reports and other documents and instruments necessary to
preserve and maintain the lien on the related Mortgaged Property and related
collateral), (B) to consent to assignments and assumptions or substitutions, and
transfers of interest of any Mortgagor, in each case subject to and in
accordance with the terms of the related Mortgage Loan and Section 8.7, (C) to
collect any Insurance Proceeds, (D) subject to Section 8.7, to consent to any
subordinate financings to be secured by any related Mortgaged Property to the
extent that such consent is required pursuant to the terms of the related
Mortgage or which otherwise is required, and, subject to Section 8.7, to consent
to any mezzanine debt to the extent such consent is required pursuant to the
terms of the related Mortgage; (E) to consent to the application of any proceeds
of insurance policies or condemnation awards to the restoration of the related
Mortgaged Property or otherwise and to administer and monitor the application of
such proceeds and awards in accordance with the terms of the Mortgage Loan as
the Master Servicer deems reasonable under the circumstances, (F) to execute and
deliver, on behalf of the Certificateholders (and, if applicable, the holder of
the B Note) and the Trustee, documents relating to the management, operation,
maintenance, repair, leasing and marketing of the related Mortgaged Properties,
including agreements and requests by the Mortgagor with respect to modifications
of the standards of operation and management of the Mortgaged Properties or the
replacement of asset managers, (G) to consent to any operation or action under a
Mortgage Loan that is contemplated or permitted under a Mortgage or other
documents evidencing or securing the applicable Mortgage Loan (either as a
matter of right or upon satisfaction of specified conditions), (H) to obtain,
release, waive or modify any term other than a Money Term of a Mortgage Loan and
related documents subject to and to the extent permitted by Section 8.18, (I) to
exercise all rights, powers and privileges granted or provided to the holder of
the Mortgage Notes and any B Note under the terms of the Mortgage, including all
rights of consent or approval thereunder, (J) to enter into lease subordination
agreements, non-disturbance and attornment agreements or other leasing or rental
arrangements which may be requested by the Mortgagor or the Mortgagor's tenants,
(K) to join the Mortgagor in granting, modifying or releasing any easements,
covenants, conditions, restrictions, equitable servitudes, or land use or zoning
requirements with respect to the Mortgaged Properties to the extent such does
not adversely affect the value of the related Mortgage Loan or Mortgaged
Property, (L) to execute and deliver, on behalf of itself, the Trustee, the
Trust (and, if applicable, the holder of the B Note) or any of them, any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the Mortgaged Properties, and (M) hold in accordance
with the terms of any Mortgage Loan and this Agreement, Defeasance Collateral.
Notwithstanding the above, the Master Servicer shall have no power to (i) waive
any Prepayment Premiums or (ii) consent to any modification of a Money Term of a
Mortgage Loan. Nothing contained in this Agreement shall limit the ability of
the
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Master Servicer to lend money to (to the extent not secured, in whole or in
part, by any Mortgaged Property), accept deposits from and otherwise generally
engage in any kind of business or dealings with any Mortgagor as though the
Master Servicer was not a party to this Agreement or to the transactions
contemplated hereby; provided, however, that this sentence shall not modify the
Servicing Standard.
(b) The Master Servicer shall not be obligated to service and
administer the Mortgage Loans which have become and continue to be Specially
Serviced Mortgage Loans, except as specifically provided herein. The Master
Servicer shall be required to make all calculations and prepare all reports
required hereunder with respect to such Specially Serviced Mortgage Loans (other
than calculations and reports expressly required to be made by the Special
Servicer hereunder) as if no Servicing Transfer Event had occurred and shall
continue to collect all Scheduled Payments, make Servicing Advances as set forth
herein, make P&I Advances (but not on any B Note) as set forth herein and render
such incidental services with respect to such Specially Serviced Mortgage Loans,
all as are specifically provided for herein, but shall have no other servicing
or other duties with respect to such Specially Serviced Mortgage Loans. The
Master Servicer shall give notice within three Business Days to the Special
Servicer of any collections it receives from any Specially Serviced Mortgage
Loans, subject to changes agreed upon from time to time by the Special Servicer
and the Master Servicer. The Special Servicer shall instruct within one Business
Day after receiving such notice the Master Servicer on how to apply such funds.
The Master Servicer within one Business Day after receiving such instructions
shall apply such funds in accordance with the Special Servicer's instructions.
Each Mortgage Loan that becomes a Specially Serviced Mortgage Loan shall
continue as such until such Mortgage Loan becomes a Rehabilitated Mortgage Loan.
The Master Servicer shall not be required to initiate extraordinary collection
procedures or legal proceedings with respect to any Mortgage Loan or to
undertake any pre-foreclosure procedures.
(c) Concurrently with the execution of this Agreement, the Trustee will
sign the Power of Attorney attached hereto as Exhibit S-1. The Master Servicer,
shall promptly notify the Trustee of the execution and delivery of any document
on behalf of the Trustee under such Power-of-Attorney. From time to time until
the termination of the Trust, upon receipt of additional unexecuted powers of
attorney from the Master Servicer or the Special Servicer, the Trustee shall
execute and return to the Master Servicer, the Special Servicer or any Primary
Servicer any additional powers of attorney and other documents necessary or
appropriate to enable the Master Servicer and the Special Servicer to service
and administer the Mortgage Loans including, without limitation, documents
relating to the management, operation, maintenance, repair, leasing or marketing
of the Mortgaged Properties. The Master Servicer shall indemnify the Trustee for
any costs, liabilities and expenses (including attorneys' fees) incurred by the
Trustee in connection with the intentional or negligent misuse of such power of
attorney by the Master Servicer. Notwithstanding anything contained herein to
the contrary, neither the Master Servicer nor the Special Servicer shall without
the Trustee's written consent: (i) initiate any action, suit or proceeding
solely under the Trustee's name without indicating the Master Servicer's or
Special Servicer's, as applicable, representative capacity, or (ii) knowingly
take any action that causes the Trustee to be registered to do business in any
state, provided, however, that the preceding clause (i) shall not apply to the
initiation of actions relating to a Mortgage Loan that the Master Servicer or
the Special Servicer, as the case may be, is servicing pursuant to its
respective duties herein (in which case the Master Servicer or the Special
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Servicer, as the case may be, shall give three (3) Business Days prior notice to
the Trustee of the initiation of such action). The limitations of the preceding
clause shall not be construed to limit any duty or obligation imposed on the
Trustee under any other provision of this Agreement.
(d) The Master Servicer shall make efforts consistent with the
Servicing Standard and the terms of this Agreement to collect all payments
called for under the terms and provisions of the applicable Mortgage Loans
(other than Specially Serviced Mortgage Loans or REO Properties).
(e) The Master Servicer (or any Primary Servicer on its behalf) shall
segregate and hold all funds collected and received pursuant to any Mortgage
Loan constituting Escrow Amounts separate and apart from any of its own funds
and general assets and shall establish and maintain one or more segregated
custodial accounts (each, an "Escrow Account") into which all Escrow Amounts
shall be deposited within one (1) Business Day after receipt. Each Escrow
Account shall be an Eligible Account, except with respect to Mortgage Loans
identified on Schedule VI for which Escrow Accounts shall be transferred to
Eligible Accounts at the earliest date permitted under the related Mortgage Loan
documents. The Master Servicer shall also deposit into each Escrow Account any
amounts representing losses on Eligible Investments pursuant to the immediately
succeeding paragraph and any Insurance Proceeds or Liquidation Proceeds which
are required to be applied to the restoration or repair of any Mortgaged
Property pursuant to the related Mortgage Loan. Each Escrow Account shall be
maintained in accordance with the requirements of the related Mortgage Loan and
in accordance with the Servicing Standard. Withdrawals from an Escrow Account
may be made only:
(i) to effect timely payments of items constituting Escrow
Amounts for the related Mortgage Loan;
(ii) to transfer funds to the Certificate Account (or any
sub-account thereof) to reimburse the Master Servicer for any Advance relating
to Escrow Amounts, but only from amounts received with respect to the related
Mortgage Loan which represent late collections of Escrow Amounts thereunder;
(iii) for application to the restoration or repair of the
related Mortgaged Property in accordance with the related Mortgage Loan and the
Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the
termination of this Agreement or pay-off of the related Mortgage Loan;
(v) to pay from time to time to the related Mortgagor any
interest or investment income earned on funds deposited in the Escrow Account if
such income is required to be paid to the related Mortgagor under applicable law
or by the terms of the Mortgage Loan, or otherwise to the Master Servicer; and
(vi) to remove any funds deposited in a Escrow Account that
were not required to be deposited therein or to refund amounts to the Mortgagors
determined to be overages.
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Subject to the immediately succeeding sentence, (i) the Master Servicer
may direct any depository institution or trust company in which the Escrow
Accounts are maintained to invest the funds held therein in one or more Eligible
Investments; provided, however, that such funds shall be either (x) immediately
available or (y) available in accordance with a schedule which will permit the
Master Servicer to meet the payment obligations for which the Escrow Account was
established; (ii) the Master Servicer shall be entitled to all income and gain
realized from any such investment of funds as additional servicing compensation;
and (iii) the Master Servicer shall deposit from its own funds in the applicable
Escrow Account the amount of any loss incurred in respect of any such investment
of funds immediately upon the realization of such loss. The Master Servicer
shall not direct the investment of funds held in any Escrow Account and retain
the income and gain realized therefrom if the terms of the related Mortgage Loan
or applicable law permit the Mortgagor to be entitled to the income and gain
realized from the investment of funds deposited therein, and the Master Servicer
shall not be required to invest amounts on deposit in Escrow Accounts in
Eligible Investments or Eligible Accounts to the extent that the Master Servicer
is required by either law or under the terms of any related Mortgage Loan to
deposit or invest (or the Mortgagor is entitled to direct the deposit or
investment of) such amounts in another type of investments or accounts. In the
event the Master Servicer is not entitled to direct the investment of such
funds, (1) the Master Servicer shall direct the depository institution or trust
company in which such Escrow Accounts are maintained to invest the funds held
therein in accordance with the Mortgagor's written investment instructions, if
the terms of the related Mortgage Loan or applicable law require the Master
Servicer to invest such funds in accordance with the Mortgagor's directions; and
(2) in the absence of appropriate written instructions from the Mortgagor, the
Master Servicer shall have no obligation to, but may be entitled to, direct the
investment of such funds; provided, however, that in either event (i) such funds
shall be either (y) immediately available or (z) available in accordance with a
schedule which will permit the Master Servicer to meet the payment obligations
for which the Escrow Account was established, and (ii) the Master Servicer shall
have no liability for any loss in investments of such funds that are invested
pursuant to written instructions from the Mortgagor.
(f) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee and the Paying Agent and to each other under this
Agreement is intended by the parties to be that of an independent contractor and
not of a joint venturer, partner or agent.
(g) With respect to each Mortgage Loan, if required by the terms of the
related Mortgage Loan, any Lock-Box Agreement or similar agreement, the Master
Servicer shall establish and maintain, in accordance with the Servicing
Standard, one or more lock-box, cash management or similar accounts ("Lock-Box
Accounts") to be held outside the Trust and maintained by the Master Servicer in
accordance with the terms of the related Mortgage. No Lock-Box Account is
required to be an Eligible Account, unless otherwise required pursuant to the
related Mortgage Loan documents. The Master Servicer shall apply the funds
deposited in such accounts in accordance with terms of the related Mortgage Loan
documents, any Lock-Box Agreement and in accordance with the Servicing Standard.
(h) The Master Servicer or any Primary Servicer on its behalf shall
process all defeasances of Mortgage Loans in accordance with the terms of the
Mortgage Loan documents, and shall be entitled to any fees paid relating
thereto. The Master Servicer shall not permit
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defeasance (or partial defeasance if permitted under the Mortgage Loan) of any
Mortgage Loan on or before the second anniversary of the Closing Date unless
such defeasance will not result in an Adverse REMIC Event and the Master
Servicer has received an opinion of counsel to such effect and all items in the
following sentence have been satisfied. Subsequent to the second anniversary of
the Closing Date, the Master Servicer, in connection with the defeasance of a
Mortgage Loan shall require (to the extent it is not inconsistent with the
Servicing Standard) that: (i) the defeasance collateral consists of U.S.
Treasury obligations, (ii) the Master Servicer has determined that the
defeasance will not result in an Adverse REMIC Event, (iii) either (A) the
related Mortgagor designates a Single-Purpose Entity (if the Mortgagor no longer
complies) to own the Defeasance Collateral (subject to customary qualifications)
or (B) the Master Servicer has established a Single-Purpose Entity to hold all
Defeasance Collateral relating to the Defeasance Loans, (iv) the Master Servicer
has requested and received from the Mortgagor (A) an opinion of counsel that the
Trustee will have a perfected, first priority security interest in such
Defeasance Collateral and (B) written confirmation from a firm of independent
accountants stating that payments made on such Defeasance Collateral in
accordance with the terms thereof will be sufficient to pay the subject Mortgage
Loan (or the defeased portion thereof in connection with a partial defeasance)
in full on or before its Maturity Date (or, in the case of the ARD Loan, on or
before its Anticipated Repayment Date) and to timely pay each subsequent
Scheduled Payment, (v)(A) a Rating Agency Confirmation is received if the
Mortgage Loan (together with any other Mortgage Loan with which it is
cross-collateralized) has a Principal Balance greater than the lesser of
$20,000,000 and 5% of the Aggregate Certificate Balance (or such higher
threshold as shall be published by S&P), unless such Rating Agency has waived in
writing such Rating Agency Confirmation requirement or (B) if the Mortgage Loan
is less than or equal to both of the amounts set forth in clause (A), either a
Notice and Certification in the form attached hereto as Exhibit Z (or such less
restrictive form as shall be adopted by S&P) or a Rating Agency Confirmation is
received from S&P and (vi) a Rating Agency Confirmation is received if the
Mortgage Loan is one of the ten largest Mortgage Loans, by Principal Balance.
Any customary and reasonable out-of-pocket expense incurred by the Master
Servicer pursuant to this Section 8.3(h) shall be paid by the Mortgagor of the
Defeasance Loan pursuant to the related Mortgage, Mortgage Note or other
pertinent document, if so allowed by the terms of such documents.
The parties hereto acknowledge that, (a) if the payments described in
paragraph 39 of Exhibit 2 to the Mortgage Loan Purchase Agreements regarding the
obligation of a Mortgagor to pay the reasonable costs and expenses associated
with a defeasance of the related Mortgage Loan are insufficient to reimburse the
Trust, or (b) if the Trust incurs any Additional Trust Expense associated solely
with the release of collateral that is not required to be paid by a Mortgagor
pursuant to the related Mortgage Loan documents (and such Additional Trust
Expense is not paid by the Mortgagor), including, but not limited to, rating
agency fees, then in either case the sole obligation of the related Seller shall
be to pay an amount equal to such insufficiency or expense to the extent the
related Mortgagor is not required to pay them. Promptly upon receipt of notice
of such insufficiency or unpaid expense, the Master Servicer shall request the
related Seller to make such payment by deposit to the Certificate Account.
In the case of a Specially Serviced Mortgage Loan, the Master Servicer
shall process any defeasance of such Specially Serviced Mortgage Loan in
accordance with the original terms of the respective Mortgage Loan documents
following a request by the Special
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Servicer that the Master Servicer do so, which request shall be accompanied by a
waiver of any condition of defeasance that an "event of default" under such
Specially Serviced Mortgage Loan not have occurred or be continuing, and the
Master Servicer shall be entitled to any fees paid relating to such defeasance.
If such "event of default" is on account of an uncured payment default, the
Special Servicer will process the defeasance of such Specially Serviced Mortgage
Loan, and the Special Servicer shall be entitled to any fees paid relating to
such defeasance.
(i) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor under a ground lease, confirm
whether or not on or prior to the date that is thirty (30) days after the
Closing Date, the Mortgage Loan Seller has notified the related ground lessor of
the transfer of such Mortgage Loan to the Trust pursuant to this Agreement and
informed such ground lessor that any notices of default under the related Ground
Lease should thereafter be forwarded to the Master Servicer (as evidenced by
delivery of a copy thereof to the Master Servicer). The Master Servicer shall
promptly notify the ground lessor if the Mortgage Loan Seller has failed to do
so by the thirtieth day after the Closing Date.
(j) Pursuant to an Intercreditor Agreement, the owner of any B Note has
agreed that the Master Servicer and the Special Servicer are authorized and
obligated to service and administer the B Note pursuant to this Agreement. The
Master Servicer shall be entitled, during any period when the A Note and B Note
under any A/B Mortgage Loan do not constitute Specially Serviced Mortgage Loans,
to exercise the rights and powers granted under the related Intercreditor
Agreement to the "Note A Holder" and/or the "Servicer" referred to therein. For
the avoidance of doubt, the parties acknowledge that neither the Master Servicer
nor the Special Servicer shall be entitled or required to exercise the rights
and powers granted to any "Note B Holder" as defined under any Intercreditor
Agreement.
SECTION 8.4 PRIMARY SERVICING AND SUB-SERVICING.
(a) The parties hereto (A) acknowledge that the Master Servicer has
delegated certain of its obligations and assigned certain of its rights under
this Agreement to the Primary Servicer pursuant to the Primary Servicing
Agreement; and (B) agree: (1) in addition to those obligations specifically
delegated by the Master Servicer to the Primary Servicer under the applicable
Primary Servicing Agreement, the Primary Servicer shall also perform the Master
Servicer's obligations set forth in Section 2.1(d) of this Agreement as such
Section relates to the Mortgage Loans serviced by it; (2) in addition to those
rights specifically granted by the Master Servicer to the Primary Servicer under
the applicable Primary Servicing Agreement, those rights set forth in Section
8.24 hereof accruing to the benefit of the Master Servicer shall also accrue to
the benefit of the Primary Servicer; (3) any indemnification or release from
liability set forth in this Agreement accruing to the benefit of the Master
Servicer shall also, to the extent applicable, benefit the Primary Servicer; and
(4) for each notice, certification, report, schedule, statement or other type of
writing that a party hereto is obligated to deliver to the Master Servicer, such
party shall deliver to the Primary Servicer a copy of such notice,
certification, report, schedule, statement or other type of writing at the time
and in the same manner that any of the foregoing is required to be delivered to
the Master Servicer. Notwithstanding the provisions of any Primary Servicing
Agreement or any other provisions of this Agreement, the Master Servicer shall
remain obligated and liable to the Trustee, the Paying Agent, the Special
Servicer, the Certificateholders and the holder of any B Note for servicing and
administering of the Mortgage Loans in
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accordance with the provisions of this Agreement to the same extent as if the
Master Servicer was alone servicing and administering the Mortgage Loans. The
Master Servicer or applicable Primary Servicer shall supervise, administer,
monitor, enforce and oversee the servicing of the applicable Mortgage Loans by
any Sub-Servicer appointed by it. The terms of any arrangement or agreement
between the Master Servicer or applicable Primary Servicer and a Sub-Servicer
shall provide that such agreement or arrangement may be terminated, without
cause and without the payment of any termination fees, by the Trustee in the
event such Master Servicer or applicable Primary Servicer is terminated in
accordance with this Agreement or the applicable Primary Servicing Agreement. In
addition, none of the Trustee, the Paying Agent, the Certificateholders or the
holder of any B Note shall have any direct obligation or liability (including,
without limitation, indemnification obligations) with respect to any
Sub-Servicer. The Master Servicer or applicable Primary Servicer shall pay the
costs of enforcement against any of its Sub-Servicers at its own expense, but
shall be reimbursed therefor only (i) from a general recovery resulting from
such enforcement only to the extent that such recovery exceeds all amounts due
in respect of the related Mortgage Loans or (ii) from a specific recovery of
costs, expenses or attorneys fees against the party against whom such
enforcement is directed. Notwithstanding the provisions of any primary servicing
agreement or sub-servicing agreement, any of the provisions of this Agreement
relating to agreements or arrangements between the Master Servicer or applicable
Primary Servicer or a Sub-Servicer, or reference to actions taken through a
Sub-Servicer or otherwise, the Master Servicer or applicable Primary Servicer
shall remain obligated and liable to the Trustee, the Paying Agent, the Special
Servicer and the Certificateholders for the servicing and administering of the
applicable Mortgage Loans in accordance with (and subject to the limitations
contained within) the provisions of this Agreement or the applicable Primary
Servicing Agreement without diminution of such obligation or liability by virtue
of indemnification from a Sub-Servicer and to the same extent and under the same
terms and conditions as if the Master Servicer or applicable Primary Servicer
alone were servicing and administering the Mortgage Loans.
(b) Subject to the limitations of subsection (a), the Master Servicer
and the Primary Servicer may appoint one or more sub-servicers (each, a
"Sub-Servicer") to perform all or any portion of its duties hereunder for the
benefit of the Trustee and the Certificateholders, provided, however, that any
decision or recommendation involving the exercise of a Primary Servicer's
discretion as a "lender" under any loan document with respect to a Mortgage Loan
shall be exercised only by the Primary Servicer and may not be delegated to a
Sub-Servicer.
The Master Servicer shall enter into the Primary Servicing Agreement
with the Primary Servicer and shall not terminate such agreement except in
accordance with the terms thereof. To the extent consistent with the rights of
the Primary Servicer under this Agreement and the related Primary Servicing
Agreement, but not in limitation of any other rights granted to the Primary
Servicer in this Agreement and/or in the Primary Servicing Agreement, the
Primary Servicer shall have all of the rights and obligations of a Sub-Servicer
set forth herein.
Notwithstanding any other provision set forth in this Agreement to the
contrary, (i) the Primary Servicer's rights and obligations under its respective
Primary Servicing Agreement shall expressly survive a termination of the Master
Servicer's servicing rights under this Agreement; provided that the applicable
Primary Servicing Agreement has not been terminated in accordance with its
provisions; (ii) any successor Master Servicer, including,
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without limitation, the Trustee (if it assumes the servicing obligations of the
Master Servicer) shall be deemed to automatically assume and agree to each of
the then current Primary Servicing Agreement without further action upon
becoming the successor Master Servicer and (iii) this Agreement may not be
modified in any manner which would increase the obligations or limit the rights
of the Primary Servicer hereunder and/or under the applicable Primary Servicing
Agreement, without the prior written consent of such Primary Servicer (which
consent shall not be unreasonably withheld).
If a task, right or obligation of Master Servicer is delegated to a
Primary Servicer under a Primary Servicing Agreement, and such task, right or
obligation involves or requires the consent of the Special Servicer, then the
Special Servicer shall accept the performance of such task, right or obligation
by the Primary Servicer in accordance with the terms of this Agreement
(including without limitation any time periods for consent or deemed consent to
be observed by the Special Servicer) as if Master Servicer were performing it.
Notwithstanding any provision of this Agreement, each of the parties
hereto acknowledges and agrees that the Special Servicer is neither a party to
the Primary Servicing Agreement, nor is it bound by any provision of the Primary
Servicing Agreement. The Special Servicer hereby acknowledges the delegation of
rights and duties hereunder by the Master Servicer pursuant to the provisions of
the Primary Servicing Agreement.
SECTION 8.5 SERVICERS MAY OWN CERTIFICATES. The Master Servicer and any
Primary Servicer and any agent of the Master Servicer or Primary Servicer in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not the Master Servicer or such
agent. Any such interest of the Master Servicer or Primary Servicer or such
agent in the Certificates shall not be taken into account when evaluating
whether actions of the Master Servicer are consistent with its obligations in
accordance with the Servicing Standard regardless of whether such actions may
have the effect of benefiting the Class or Classes of Certificates owned by the
Master Servicer.
SECTION 8.6 MAINTENANCE OF HAZARD INSURANCE, OTHER INSURANCE, TAXES AND
OTHER. Subject to the limitations set forth below, the Master Servicer shall
use reasonable efforts consistent with the Servicing Standard to cause the
related Mortgagor to maintain for each Mortgage Loan (other than any REO
Mortgage Loan) (A) a Standard Hazard Insurance Policy which does not provide for
reduction due to depreciation in an amount that is at least equal to the lesser
of (i) the full replacement cost of improvements securing such Mortgage Loan or
(ii) the outstanding Principal Balance of such Mortgage Loan, but, in any event,
in an amount sufficient to avoid the application of any co-insurance clause and
(B) any other insurance coverage for a Mortgage Loan which the related Mortgagor
is required to maintain under the related Mortgage, provided the Master Servicer
shall not be required to maintain earthquake insurance on any Mortgaged Property
unless such insurance was required at origination and is available at
commercially reasonable rates; provided, however, that the Special Servicer
shall have the right, but not the duty, to obtain, at the Trust's expense,
earthquake insurance on any Mortgaged Property securing a Specially Serviced
Mortgage Loan or an REO Property so long as such insurance is available at
commercially reasonable rates. If the related Mortgagor does not
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maintain the insurance set forth in clauses (A) and (B) above, then the Master
Servicer shall cause to be maintained such insurance with a Qualified Insurer.
Each Standard Hazard Insurance Policy maintained with respect to any
Mortgaged Property that is not an REO Property shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. If the
improvements on the Mortgaged Property are located in a designated special flood
hazard area by the Federal Emergency Management Agency in the Federal Register,
as amended from time to time (to the extent permitted under the related Mortgage
Loan or as required by law), the Master Servicer (with respect to any Mortgaged
Property that is not an REO Property) shall cause flood insurance to be
maintained. Such flood insurance shall be in an amount equal to the lesser of
(i) the unpaid principal balance of the related Mortgage Loan or (ii) the
maximum amount of such insurance available for the related Mortgaged Property
under the national flood insurance program, if the area in which the
improvements on the Mortgaged Property are located is participating in such
program. Any amounts collected by the Master Servicer under any such policies
(other than amounts to be applied to the restoration or repair of the related
Mortgaged Property or property thus acquired or amounts released to the
Mortgagor in accordance with the terms of the applicable Mortgage Loan) shall be
deposited in the Certificate Account.
Any cost (such as insurance premiums and insurance broker fees but not
internal costs and expenses of obtaining such insurance) incurred by the Master
Servicer in maintaining any insurance pursuant to this Section 8.6 shall not,
for the purpose of calculating monthly distributions to the Certificateholders
or remittances to the Paying Agent for their benefit, be added to the Principal
Balance of the Mortgage Loan, notwithstanding that the terms of the Mortgage
Loan permit such cost to be added to the outstanding Principal Balance thereof.
Such costs shall be paid as a Servicing Advance by the Master Servicer, subject
to Section 4.4 hereof.
Notwithstanding the above, the Master Servicer shall have no obligation
beyond using its reasonable efforts consistent with the Servicing Standard to
enforce such insurance requirements. Furthermore, the Master Servicer shall not
be required in any event to maintain or obtain insurance coverage beyond what is
reasonably available at a cost customarily acceptable and consistent with the
Servicing Standard.
The Master Servicer shall conclusively be deemed to have satisfied its
obligations as set forth in this Section 8.6 either (i) if the Master Servicer
shall have obtained and maintained a master force placed or blanket insurance
policy insuring against hazard losses on all of the applicable Mortgage Loans
serviced by it, it being understood and agreed that such policy may contain a
deductible clause on terms substantially equivalent to those commercially
available and maintained by comparable servicers consistent with the Servicing
Standard, and provided that such policy is issued by a Qualified Insurer or (ii)
if the Master Servicer, provided that its long-term rating is not less than "A-"
by S&P and "A2" by Xxxxx'x, self-insures for its obligations as set forth in the
first paragraph of this Section 8.6. In the event that the Master Servicer shall
cause any Mortgage Loan to be covered by such a master force placed or blanket
insurance policy, the incremental cost of such insurance allocable to such
Mortgage Loan (i.e., other than any minimum or standby premium payable for such
policy whether or not any Mortgage Loan is then covered thereby), if not borne
by the related Mortgagor, shall be paid by the Master Servicer as a Servicing
Advance. If such policy contains a deductible clause, the Master Servicer shall,
if
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there shall not have been maintained on the related Mortgaged Property a policy
complying with this Section 8.6 and there shall have been a loss that would have
been covered by such policy, deposit in the Certificate Account the amount not
otherwise payable under such master force placed or blanket insurance policy
because of such deductible clause to the extent that such deductible exceeds (i)
the deductible under the related Mortgage Loan or (ii) if there is no deductible
limitation required under the Mortgage Loan, the deductible amount with respect
to insurance policies generally available on properties similar to the related
Mortgaged Property which is consistent with the Servicing Standard, and deliver
to the Trustee an Officer's Certificate describing the calculation of such
amount. In connection with its activities as administrator and servicer of the
Mortgage Loans, the Master Servicer agrees to present, on its behalf and on
behalf of the Trustee, claims under any such master force placed or blanket
insurance policy.
With respect to each Mortgage Loan, the Master Servicer shall maintain
accurate records with respect to each related Mortgaged Property reflecting the
status of taxes, assessments and other similar items that are or may become a
lien on the related Mortgaged Property and the status of insurance premiums
payable with respect thereto. From time to time, the Master Servicer (other than
with respect to REO Mortgage Loans) shall (i) obtain all bills for the payment
of such items (including renewal premiums), and (ii) except in the case of
Mortgage Loans under which Escrow Amounts are not held by the Master Servicer,
effect payment of all such bills, taxes and other assessments with respect to
such Mortgaged Properties prior to the applicable penalty or termination date,
in each case employing for such purpose Escrow Amounts as allowed under the
terms of the related Mortgage Loan. If a Mortgagor fails to make any such
payment on a timely basis or collections from the Mortgagor are insufficient to
pay any such item before the applicable penalty or termination date, the Master
Servicer in accordance with the Servicing Standard shall use its reasonable
efforts to pay as a Servicing Advance the amount necessary to effect the payment
of any such item prior to such penalty or termination date, subject to Section
4.4 hereof. No costs incurred by the Master Servicer, the Trustee or the Fiscal
Agent as the case may be, in effecting the payment of taxes and assessments on
the Mortgaged Properties and related insurance premiums and ground rents shall,
for the purpose of calculating distributions to Certificateholders, be added to
the Principal Balance of the Mortgage Loans, notwithstanding that the terms of
such Mortgage Loans permit such costs to be added to the outstanding Principal
Balances of such Mortgage Loans.
SECTION 8.7 ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS;
DUE-ON-ENCUMBRANCE CLAUSE.
(a) In the event the Master Servicer receives a request from a
Mortgagor pursuant to the provisions of any Mortgage Loan (other than a
Specially Serviced Mortgage Loan) that expressly permits, subject to any
conditions set forth in the Mortgage Loan documents, the assignment of the
related Mortgaged Property to, and assumption of such Mortgage Loan by, another
Person, the Master Servicer shall obtain relevant information for purposes of
evaluating such request. For the purpose of the foregoing sentence, the term
'expressly permits' shall include outright permission to assign, permission to
assign upon satisfaction of certain conditions or prohibition against assignment
except upon the satisfaction of stated conditions. If the Master Servicer
recommends to approve such assignment, the Master Servicer shall provide to the
Special Servicer (and solely with respect to any A/B Mortgage
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Loan, the holder of the B Note) a copy of such recommendation and the materials
upon which such recommendation is based (which information shall consist of the
information to be included in the Assignment and Assumption Submission to
Special Servicer, in the form attached hereto as Exhibit U) and (A) the Special
Servicer shall have the right hereunder to grant or withhold consent to any such
request for such assignment and assumption in accordance with the terms of the
Mortgage Loan and this Agreement, and the Special Servicer shall not
unreasonably withhold such consent and any such decision of the Special Servicer
shall be in accordance with the Servicing Standard, (B) failure of the Special
Servicer to notify the Master Servicer in writing, within five (5) Business Days
following the Master Servicer's delivery of the recommendation described above
and the complete Assignment and Assumption Submission to Special Servicer on
which the recommendation is based, of its determination to grant or withhold
such consent shall be deemed to constitute a grant of such consent and (C) the
Master Servicer shall not permit any such assignment or assumption unless it has
received the written consent of the Special Servicer or such consent has been
deemed to have been granted as described in the preceding sentence. The Special
Servicer hereby acknowledges the delegation of rights and duties hereunder by
the Master Servicer pursuant to the provisions of the Primary Servicing
Agreement. If the Special Servicer withholds consent pursuant to the provisions
of this Agreement, it shall provide the Master Servicer or any applicable
Primary Servicer with a written statement and a verbal explanation as to its
reasoning and analysis. Upon consent or deemed consent by the Special Servicer
to such proposed assignment and assumption, the Master Servicer shall process
such request of the related Mortgagor and shall be authorized to enter into an
assignment and assumption or substitution agreement with the Person to whom the
related Mortgaged Property has been or is proposed to be conveyed, and/or
release the original Mortgagor from liability under the related Mortgage Loan
and substitute as obligor thereunder the Person to whom the related Mortgaged
Property has been or is proposed to be conveyed; provided, however, that the
Master Servicer shall not enter into any such agreement to the extent that any
terms thereof would result in an Adverse REMIC Event or create any lien on a
Mortgaged Property that is senior to, or on parity with, the lien of the related
Mortgage. To the extent permitted by applicable law, the Master Servicer shall
not enter into such an assumption or substitution agreement unless the credit
status of the prospective new Mortgagor is in conformity to the terms of the
related Mortgage Loan documents. In making its recommendation, the Master
Servicer shall evaluate such conformity in accordance with the Servicing
Standard. The Master Servicer shall notify the Trustee, the Paying Agent and the
Special Servicer of any assignment and assumption or substitution agreement
executed pursuant to this Section 8.7(a). The Master Servicer shall be entitled
to (as additional servicing compensation) 50% of any assumption fee collected
from a Mortgagor in connection with an assignment and assumption or substitution
of a non-Specially Serviced Mortgage Loan executed pursuant to this Section
8.7(a) and the Special Servicer shall be entitled to (as additional special
servicing compensation) the other 50% of such fee.
Notwithstanding the foregoing, the Special Servicer acknowledges that
the Master Servicer has delegated certain tasks, rights and obligations to the
Primary Servicer with respect to Post Closing Requests (as defined in the
Primary Servicing Agreement) pursuant to Section 8.4 of this Agreement. The
Primary Servicing Agreement classifies certain Post Closing Requests as Category
1 Requests (as defined in the Primary Servicing Agreement), in which Primary
Servicer has certain authority to evaluate and process such requests in
accordance with
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this Agreement, the applicable Primary Servicing Agreement and applicable
Mortgage Loan documents.
With respect to a Category 1 Request that involves a condition, term or
provision that requires, or specifies a standard of, consent or approval of the
applicable Mortgagee under the Mortgage Loan documents, the Primary Servicing
Agreement provide for Master Servicer's determination of materiality of such
condition, term or provision requiring approval or consent and the referral of
such condition, term or provision to a Special Servicer for consent in
accordance with the terms of the Primary Servicing Agreement upon a
determination of materiality. Special Servicer acknowledges such provisions.
Nothing in this Agreement, however, shall grant the Primary Servicer greater
authority, discretion or delegated rights over Post Closing Requests than are
set forth in the Primary Servicing Agreement.
Neither the Master Servicer nor the Special Servicer shall have any
liability, and shall be indemnified by the Trust for any liability to the
Mortgagor or the proposed assignee, for any delay in responding to requests for
assumption, if the same shall occur as a result of the failure of the Rating
Agencies, or any of them, to respond to such request in a reasonable period of
time.
(b) Other than with respect to the assignment and assumptions referred
to in subsection (a) above, if any Mortgage Loan that is not a Specially
Serviced Mortgage Loan contains a provision in the nature of a "due-on-sale"
clause, which by its terms (i) provides that such Mortgage Loan shall (or may at
the mortgagee's option) become due and payable upon the sale of the related
Mortgaged Property, or (ii) provides that such Mortgage Loan may not be assumed
without the consent of the related mortgagee in connection with any such sale or
other transfer, then, the Master Servicer shall review and make a determination
to either (i) enforce such due-on-sale clause or (ii) if in the best economic
interest of the Trust, waive the effect of such provision, such waiver to be
processed in the same manner as in Section 8.7(a); provided, however, that if
the Principal Balance of such Mortgage Loan (together with any other Mortgage
Loan with which it is cross-collateralized) at such time equals or exceeds 5% of
the Aggregate Certificate Balance or is one of the then current top 10 loans (by
Principal Balance) in the pool, then prior to waiving the effect of such
provision, the Master Servicer shall obtain Rating Agency Confirmation regarding
such waiver. In connection with the request for such consent, the Master
Servicer shall prepare and deliver to S&P and Xxxxx'x a memorandum outlining its
analysis and recommendation in accordance with the Servicing Standard, together
with copies of all relevant documentation. The Master Servicer shall promptly
forward copies of the assignment and assumption documents relating to any
Mortgage Loan to the Special Servicer, the Paying Agent and the Trustee, and the
Master Servicer shall promptly thereafter forward such documents to the Rating
Agencies. The Special Servicer and the Master Servicer shall each be entitled to
(as additional compensation) 50% of any fee collected from a Mortgagor in
connection with the granting or withholding such consent.
(c) The Master Servicer shall have the right to consent to any
transfers of an interest of a Mortgagor, to the extent such transfer is allowed
under the terms of the related Mortgage Loan, including any consent to transfer
to any subsidiary or affiliate of Mortgagor or to a person acquiring less than a
majority interest in the Mortgagor; provided, however, that if (i) the Principal
Balance of such Mortgage Loan (together with any other Mortgage Loan with
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which it is cross-collateralized) at such time equals or exceeds 5% of the
Aggregate Certificate Balance or is one of the then current top 10 loans (by
Principal Balance) in the pool, and (ii) the transfer is of an interest in the
Mortgagor greater than 49%, then prior to consenting, the Master Servicer shall
obtain a Rating Agency Confirmation regarding such consent, the costs of which
to be payable by the related Mortgagor to the extent provided for in the
Mortgage Loan documents. The Master Servicer shall be entitled to collect and
receive from Mortgagors any customary fees in connection with such transfers of
interest as additional servicing compensation.
(d) The Trustee for the benefit of the Certificateholders and the
holder of any B Note shall execute any necessary instruments in the form
presented to it by the Master Servicer (pursuant to subsection (a)) or the
Special Servicer (pursuant to subsection (b)) for such assignments and
assumptions agreements. Upon the closing of the transactions contemplated by
such documents, the Master Servicer or the Special Servicer, as the case may be,
shall cause the originals of the assignment and assumption agreement, the
release (if any), or the modification or supplement to the Mortgage Loan to be
delivered to the Trustee except to the extent such documents have been submitted
to the recording office, in which event the Master Servicer shall promptly
deliver copies of such documents to the Trustee and the Special Servicer.
(e) If any Mortgage Loan (other than a Specially Serviced Mortgage
Loan) which contains a provision in the nature of a "due-on-encumbrance" clause,
which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any additional
lien or other encumbrance on the related Mortgaged Property or a lien on the
ownership interest in the Mortgagor; or
(ii) requires the consent of the Mortgagee to the creation of
any such additional lien or other encumbrance on the related Mortgaged Property,
then, as long as such Mortgage Loan is included in the Trust, the Master
Servicer, on behalf of the Trustee as the Mortgagee of record, shall exercise
(or, subject to Section 8.18, waive its right to exercise) any right it may have
with respect to such Mortgage Loan (x) to accelerate the payments thereon, or
(y) to withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standard, the following
paragraph and Section 8.18 hereof. The Master Servicer shall not waive the
effect of such provision without first obtaining Rating Agency Confirmation
regarding such waiver and complying with the provisions of the next succeeding
paragraph.
Without limiting the generality of the preceding paragraph, in the
event that the Master Servicer receives a request for a waiver of any
"due-on-encumbrance" clause, the Master Servicer shall obtain relevant
information for purposes of evaluating such request for a waiver. If the Master
Servicer recommends to waive such clause, the Master Servicer shall provide to
the Special Servicer a copy of such recommendation and the materials upon which
such recommendation is based (which information shall consist of the information
to be included in the Additional Lien, Monetary Encumbrance and Mezzanine
Financing Submission Package to the Special Servicer, in the form attached
hereto as Exhibit V) and (A) the Special Servicer shall have the right hereunder
to grant or withhold consent to any such request in accordance with the
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terms of the Mortgage Loan and this Agreement, and the Special Servicer shall
not unreasonably withhold such consent and any such decision of the Special
Servicer shall be in accordance with the Servicing Standard, (B) failure of the
Special Servicer to notify the Master Servicer in writing, within five (5)
Business Days following the Master Servicer's delivery of the recommendation
described above and the complete Additional Lien, Monetary Encumbrance and
Mezzanine Financing Submission Package to the Special Servicer on which the
recommendation is based, of its determination to grant or withhold such consent
shall be deemed to constitute a grant of such consent and (C) the Master
Servicer shall not permit any such waiver unless it has received the written
consent of the Special Servicer or such consent has been deemed to have been
granted as described in the preceding sentence. If the Special Servicer
withholds consent pursuant to the foregoing provisions, it shall provide the
Master Servicer with a written statement and a verbal explanation as to its
reasoning and analysis. Upon consent or deemed consent by the Special Servicer
to such proposed waiver, the Master Servicer shall process such request of the
related Mortgagor subject to the other requirements set forth above.
The parties hereto acknowledge that, if the payments described in
paragraph 39 of Exhibit 2 to the Mortgage Loan Purchase Agreements regarding the
obligation of a Mortgagor to pay the reasonable costs and expenses of obtaining
any Rating Agency Confirmation in connection with an assumption of the related
Mortgage Loan are insufficient to reimburse the Trust, then it shall be the sole
obligation of the related Seller to pay an amount equal to such insufficiency to
the extent the related Mortgagor is not required to pay them. Promptly upon
receipt of notice of such insufficiency, the Master Servicer or the Special
Servicer, as applicable, shall request the related Seller to make such payment
by deposit to the Certificate Account. The Master Servicer may not waive such
payment by the Mortgagor.
SECTION 8.8 TRUSTEE TO COOPERATE; RELEASE OF TRUSTEE MORTGAGE FILES.
Upon the payment in full of any Mortgage Loan, the complete defeasance of a
Mortgage Loan, satisfaction or discharge in full of any Specially Serviced
Mortgage Loan, the purchase of an A Note by the holder of a B Note pursuant to
the related Intercreditor Agreement, or the receipt by the Master Servicer of a
notification that payment in full (or such payment, if any, in connection with
the satisfaction and discharge in full of any Specially Serviced Mortgage Loan)
will be escrowed in a manner customary for such purposes, and upon notification
by the Master Servicer in the form of a certification (which certification shall
include a statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
Certificate Account have been or will be so deposited) of a Servicing Officer
and a request for release of the Trustee Mortgage File in the form of Exhibit C
hereto the Trustee shall promptly release the related Trustee Mortgage File to
the Master Servicer and the Trustee shall execute and deliver to the Master
Servicer the deed of reconveyance or release, satisfaction or assignment of
mortgage or such instrument releasing the lien of the Mortgage, as directed by
the Master Servicer together with the Mortgage Note with written evidence of
cancellation thereon. The provisions of the immediately preceding sentence shall
not, in any manner, limit or impair the right of the Master Servicer to execute
and deliver, on behalf of the Trustee, the Certificateholders, the holder of any
B Note or any of them, any and all instruments of satisfaction, cancellation or
assignment without recourse, representation or warranty, or of partial or full
release or discharge and all other comparable instruments, with respect to the
Mortgage Loans or any B Note, and with respect to the Mortgaged Properties held
for the benefit of the Certificateholders and the holder of any B Note. No
expenses incurred in connection with any
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instrument of satisfaction or deed of reconveyance shall be chargeable to the
Distribution Account but shall be paid by the Master Servicer except to the
extent that such expenses are paid by the related Mortgagor in a manner
consistent with the terms of the related Mortgage and applicable law. From time
to time and as shall be appropriate for the servicing of any Mortgage Loan,
including for such purpose, collection under any policy of flood insurance, any
Servicer Fidelity Bond or Errors and Omissions Policy, or for the purposes of
effecting a partial or total release of any Mortgaged Property from the lien of
the Mortgage or the making of any corrections to the Mortgage Note or the
Mortgage or any of the other documents included in the Trustee Mortgage File,
the Trustee shall, upon request of the Master Servicer and the delivery to the
Trustee of a Request for Release signed by a Servicing Officer, in the form of
Exhibit C hereto, release the Trustee Mortgage File to the Master Servicer or
the Special Servicer, as the case may be.
SECTION 8.9 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF MASTER
SERVICER TO BE HELD FOR THE TRUSTEE FOR THE BENEFIT OF THE CERTIFICATEHOLDERS.
Notwithstanding any other provisions of this Agreement, the Master Servicer
shall transmit to the Trustee, to the extent required by this Agreement, all
documents and instruments coming into the possession of the Master Servicer from
time to time and shall account fully to the Trustee and the Paying Agent for any
funds received or otherwise collected thereby, including Liquidation Proceeds or
Insurance Proceeds in respect of any Mortgage Loan. All Servicer Mortgage Files
and funds collected or held by, or under the control of, the Master Servicer in
respect of any Mortgage Loans (or any B Note), whether from the collection of
principal and interest payments or from Liquidation Proceeds or Insurance
Proceeds, including any funds on deposit in the Certificate Account (or any A/B
Loan Custodial Account), shall be held by the Master Servicer for and on behalf
of the Trustee and the Certificateholders (or the holder of any B Note, as
applicable) and shall be and remain the sole and exclusive property of the
Trustee, subject to the applicable provisions of this Agreement. The Master
Servicer agrees that it shall not create, incur or subject any Servicer Mortgage
Files or Trustee Mortgage File or any funds that are deposited in the
Certificate Account or any Escrow Account, or any funds that otherwise are or
may become due or payable to the Trustee or the Paying Agent, to any claim,
lien, security interest, judgment, levy, writ of attachment or other
encumbrance, or assert by legal action or otherwise any claim or right of setoff
against any Servicer Mortgage Files or Trustee Mortgage File or any funds
collected on, or in connection with, a Mortgage Loan, except, however, that the
Master Servicer shall be entitled to receive from any such funds any amounts
that are properly due and payable to the Master Servicer under this Agreement.
SECTION 8.10 SERVICING COMPENSATION.
(a) As compensation for its activities hereunder, the Master Servicer
shall be entitled to the Master Servicing Fee, which shall be payable by the
Trust from amounts held in the Certificate Account (and from the related A/B
Loan Custodial Account to the extent related solely to a B Note) or otherwise
collected from the Mortgage Loans as provided in Section 5.2. The Master
Servicer shall be required to pay to the Primary Servicer its related Primary
Servicing Fees, which shall be payable by the Trust from amounts as provided in
Section 5.1(c), unless retained by the Primary Servicer from amounts transferred
to the Master Servicer in accordance with the terms of the Primary Servicing
Agreement. The Master Servicer shall be required to pay to the holders of the
rights to the Excess Servicing Fees, the Excess Servicing
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Fees, which shall be payable by the Trust as provided in Section 5.1(c), unless
otherwise retained by the holders of such rights. Notwithstanding anything
herein to the contrary, if any of the holders of the right to receive Excess
Servicing Fees resigns or is no longer Master Servicer or Primary Servicer, as
applicable, for any reason, it will continue to have the right to receive its
portion of the Excess Servicing Fee, and any of the holders of the right to
receive Excess Servicing Fees shall have the right to assign its portion of the
Excess Servicing Fee, whether or not it is then acting as Master Servicer or
Primary Servicer hereunder. The Master Servicer shall also be entitled to the
Primary Servicing Fee, which shall be payable by the Trust from amounts held in
the Certificate Account (or a sub-account thereof) or otherwise collected from
the Mortgage Loans as provided in Section 5.2, provided that the Primary
Servicing Fee payable to the Master Servicer shall only be collected from the
Mortgage Loans set forth on Schedule II, Schedule IV and Schedule V, except as
provided in Section 8.28(c).
(b) Additional servicing compensation in the form of assumption fees,
extension fees, servicing fees, default interest (excluding default interest
allocable to any B Note if the holder of the B Note has cured the related
default pursuant to the terms of the Intercreditor Agreement) payable at a rate
above the Mortgage Rate (net of any amount used to pay Advance Interest),
Modification Fees, forbearance fees, Late Fees (net of Advance Interest)
(excluding Late Fees allocable to any B Note if the holder of the B Note has
cured the related default pursuant to the terms of the Intercreditor Agreement)
or other usual and customary charges and fees actually received from Mortgagors
shall be retained by the Master Servicer, provided that the Master Servicer
shall be entitled to (i) receive 50% of assumption fees collected on Mortgage
Loans as provided in Section 8.7(a), (ii) Modification Fees as provided in
Section 8.18 hereof, and (iii) 100% of any extension fees collected from the
related Mortgagor in connection with the extension of the Maturity Date of any
Mortgage Loan as provided in Section 8.18; provided, however, that the Master
Servicer shall not be entitled to any such fees in connection with any Specially
Serviced Mortgage Loans. If the Master Servicer collects any amount payable to
the Special Servicer hereunder in connection with an REO Mortgage Loan or
Specially Serviced Mortgage Loan, the Master Servicer shall promptly remit such
amount to the Special Servicer as provided in Section 5.2. The Master Servicer
shall be required to pay all applicable expenses incurred by it in connection
with its servicing activities hereunder.
(c) Notwithstanding any other provision herein, the Master Servicing
Fee for each monthly period relating to each Determination Date shall be reduced
by an amount equal to the Compensating Interest (if any) relating to Mortgage
Loans which are not Specially Serviced Mortgage Loans for such Determination
Date.
(d) The Master Servicer shall also be entitled to additional servicing
compensation of (i) an amount equal to the excess, if any, of the aggregate
Prepayment Interest Excess relating to Mortgage Loans which are not Specially
Serviced Mortgage Loans for each Distribution Date over the aggregate Prepayment
Interest Shortfalls for such Mortgage Loans for such Distribution Date, (ii)
interest or other income earned on deposits in the Certificate Account and the
Distribution Account (but only to the extent of the net investment earnings, if
any, with respect to each such account), and, (iii) to the extent not required
to be paid to any Mortgagor under applicable law, any interest or other income
earned on deposits in the Escrow Accounts.
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SECTION 8.11 MASTER SERVICER REPORTS; ACCOUNT STATEMENTS.
(a) For each Distribution Date, (i) the Master Servicer shall deliver
to the Paying Agent, no later than 1:00 p.m., New York City time, on the related
Report Date, the Master Servicer Remittance Report with respect to such
Distribution Date including any information regarding prepayments made pursuant
to Section 5.2(b) and (ii) the Master Servicer shall report to the Paying Agent
on the related Advance Report Date, the amount of P&I Advance to be made by the
Master Servicer on the related Master Servicer Remittance Date. The Special
Servicer is required to provide all applicable information relating to Specially
Serviced Mortgage Loans in order for the Master Servicer to satisfy its duties
in this Section 8.11. The Master Servicer Remittance Report shall be updated
(and delivered to the Paying Agent as updated) no later than 2 p.m. on the
second Business Day prior to the Distribution Date to reflect any payment on a
Mortgage Loan for which the Scheduled Payment is paid on a Due Date (or within
its grace period) that occurs after the end of the related Collection Period.
(b) The Master Servicer shall deliver to the Trustee, the Paying Agent
and the Special Servicer within 30 days following each Distribution Date a
statement setting forth the status of the Certificate Account as of the close of
business on such Distribution Date showing, for the period covered by such
statement, the aggregate of deposits in or withdrawals from the Certificate
Account, and shall deliver to each holder of a B Note within 30 days following
each Distribution Date a statement setting forth the status of the related A/B
Loan Custodial Account as of the close of business on such Distribution Date
showing, for the period covered by such statement, the aggregate of transfers in
and transfers from or deposits in or withdrawals from such A/B Loan Custodial
Account.
(c) The Master Servicer shall promptly inform the Special Servicer of
the name, account number, location and other necessary information concerning
the Certificate Account in order to permit the Special Servicer to make deposits
therein.
(d) Reserved
(e) The Master Servicer shall deliver a copy of any reports or
information delivered to the Trustee or the Paying Agent pursuant to subsection
(a) or subsection (b) of this Section 8.11 to the Depositor, the Special
Servicer, the Operating Adviser and each Rating Agency, in each case upon
request by such Person and only to the extent such reports and information are
not otherwise required to be delivered to such Person under any provision of
this Agreement.
(f) Notwithstanding any provision of this Agreement to the contrary,
the Master Servicer shall not have any obligation (other than to the Special
Servicer) to deliver any statement, notice or report that is then made available
on the Master Servicer's or the Paying Agent's internet website, provided that
it has notified all parties entitled to delivery of such reports, by electronic
mail or other notice provided in this Agreement, to the effect that such
statements, notices or reports shall thereafter be made available on such
website from time to time.
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(g) The Master Servicer shall deliver or cause to be delivered to the
Paying Agent the following CMSA Reports with respect to the Mortgage Loans (and,
if applicable, the related REO Properties) providing the required information as
of the related Determination Date upon the following schedule: (i) a Comparative
Financial Status Report not later than each Report Date, commencing in May 2002;
(ii) an Operating Statement Analysis Report, the Financial File and an NOI
Adjustment Worksheet in accordance with Section 8.14 of this Agreement; (iii) a
Servicer Watch List in accordance with and subject to the terms of Section
8.11(h) on each Report Date, commencing in May 2002; (iv) a Loan Set-Up File
(with respect to the initial Distribution Date only) not later than the Report
Date in April 2002; (v) a Loan Periodic Update File not later than each Report
Date commencing in April 2002; (vi) a Property File not later than each Report
Date, commencing in June 2002; (vii) a Delinquent Loan Status Report on each
Report Date, commencing in May 2002; (viii) an Historical Loan Modification
Report not later than each Report Date, commencing in May 2002, (ix) an
Historical Liquidation Report not later than each Report Date, commencing in May
2002; and (x) an REO Status Report on each Report Date, commencing in May 2002.
The information that pertains to Specially Serviced Mortgage Loans and REO
Properties reflected in such reports shall be based solely upon the reports
delivered by the Special Servicer to the Master Servicer in writing and on a
computer readable medium reasonably acceptable to the Master Servicer and the
Special Servicer on the Determination Date prior to the related Master Servicer
Remittance Date in the form required under Section 9.32. The Master Servicer's
responsibilities under this Section 8.11(g) with respect to REO Loans and
Specially Serviced Mortgage Loans shall be subject to the satisfaction of the
Special Servicer's obligations under Section 9.32. The reporting obligations of
the Master Servicer in connection with any A/B Mortgage Loan shall be construed
to refer only to such information regarding the A/B Mortgage Loan (and its
related Mortgaged Property) and by reference to the related A Note only, but
whenever the Master Servicer remits funds to the holder of the related B Note,
it shall thereupon deliver to such holder a remittance report identifying the
amounts in such remittance.
(h) For each Distribution Date, the Master Servicer shall deliver to
the Paying Agent (and solely with respect to any A/B Mortgage Loan, the holder
of the related B Note), not later than the related Report Date, a Servicer Watch
List. To the extent the Master Servicer has knowledge thereof, the Master
Servicer shall list any Mortgage Loan on the Servicer Watch List as to which any
of the following events have occurred following the Cut-Off Date: (i) Mortgage
Loans having a current Debt Service Coverage Ratio that is 88% or less of the
Debt Service Coverage Ratio listed for such Mortgage Loan on Annex A to the
Final Prospectus Supplement or having a Debt Service Coverage Ratio that is less
than 1.10x, (ii) Mortgage Loans as to which any required inspection of the
related Mortgaged Property conducted by the Master Servicer indicates a problem
that the Master Servicer determines can reasonably be expected to materially
adversely affect the cash flow generated by such Mortgaged Property, (iii)
Mortgage Loans which have come to the Master Servicer's attention in the
performance of its duties under this Agreement, in respect of which (A) the
occupancy of the related Mortgaged Property is under 80%, (B) any tenant
occupying 25% or more of the space in the related Mortgaged Property vacates the
Mortgaged Property (without being replaced by one or more comparable tenants and
leases) or is the subject of bankruptcy or similar proceedings if the Master
Servicer has received written notice of such proceedings or such proceedings
have become general public knowledge, (C) with respect to Mortgaged Properties
operated as a hotel, the occupancy thereof is more than 10% less than the
occupancy as of the Cut-Off Date as set forth in Appendix I to the Prospectus
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Supplement or (D) any Mortgagor or an affiliate thereof has been the subject of
bankruptcy or similar proceedings if the Master Servicer has received written
notice of such proceedings or such proceedings have become general public
knowledge, (iv) Mortgage Loans that are at least 30 days delinquent in payment,
(v) Mortgage Loans that are within 90 days of maturity, (vi) Mortgage Loans that
are delinquent in respect of real estate taxes, (vii) Mortgage Loans for which
any outstanding advances exist, (viii) Mortgage Loans that are late after the
expiration of any grace period in making monthly payments three or more times in
the preceding 12 months (commencing with the first anniversary of the Closing
Date) and (ix) any Rehabilitated Mortgage Loan until the Mortgagor has made
three (3) consecutive payments.
(i) If the Master Servicer delivers a notice of drawing to effect a
drawing on any letter of credit or debt service reserve account under which the
Trust has rights as the holder of any Mortgage Loan for purposes other than
payment or reimbursement of amounts contemplated in and by a reserve or escrow
agreement (other than after a default under an applicable Mortgage Loan), the
Master Servicer shall, within five (5) Business Days following its receipt of
the proceeds of such drawing, deliver notice thereof to the Special Servicer,
the Operating Adviser and the Paying Agent, which notice shall set forth (i) the
unpaid Principal Balance of such Mortgage Loan immediately before and
immediately after the drawing, and (ii) a brief description of the circumstances
that in the Master Servicer's good faith and reasonable judgment entitled the
Master Servicer to make such drawing.
SECTION 8.12 ANNUAL STATEMENT AS TO COMPLIANCE. The Master Servicer
shall deliver to the Depositor, the Paying Agent, the Luxembourg Paying Agent
and the Trustee on or before the Report Date in March of each year, commencing
in March 2003, an Officer's Certificate stating, as to the signer thereof, that
(A) a review of the activities of the Master Servicer during the preceding
calendar year or portion thereof and of the performance of the Master Servicer
under this Agreement has been made under such officer's supervision and (B) to
the best of such officer's knowledge, based on such review, the Master Servicer
has fulfilled all its obligations under this Agreement in all material respects
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof. The Master Servicer shall forward a copy of each such
statement to the Rating Agencies and the Operating Adviser.
SECTION 8.13 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT.
On or before noon (Eastern Time) on March 31 of each year (or March 30 if a leap
year), commencing in March 2003, the Master Servicer at its expense shall cause
a firm of nationally recognized independent public accountants (which may also
render other services to the Master Servicer) and that is a member of the
American Institute of Certified Public Accountants to furnish a statement to the
Trustee, the Paying Agent, the Luxembourg Paying Agent and the Depositor, with a
copy to the Rating Agencies, to the effect that (i) it has obtained a letter of
representation regarding certain matters from the management of the Master
Servicer, which includes an assertion that the Master Servicer has complied with
certain minimum mortgage loan servicing standards (to the extent applicable to
commercial and multifamily mortgage loans), identified in the Uniform Single
Attestation Program for Mortgage Bankers established by the Mortgage Bankers
Association of America, with respect to the servicing of commercial and
multifamily mortgage loans during the most recently completed calendar year and
(ii) on the basis of an examination conducted by such firm in accordance with
standards established by the
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American Institute of Certified Public Accountants, such representation is
fairly stated in all material respects, subject to such exceptions and other
qualifications that may be appropriate. In rendering its report such firm may
rely, as to matters relating to the direct servicing of commercial and
multifamily mortgage loans by Primary Servicer or Sub-Servicers, upon comparable
reports of firms of independent certified public accountants rendered on the
basis of examinations conducted in accordance with the same standards (rendered
within one year of such report) with respect to those Primary Servicer or
Sub-Servicers.
SECTION 8.14 OPERATING STATEMENT ANALYSIS REPORTS REGARDING THE
MORTGAGED PROPERTIES. Within 105 calendar days after the end of each of the
first three calendar quarters (in each year) for the trailing or quarterly
information received, commencing in the quarter ending on June 30, 2002, the
Master Servicer (in the case of Mortgage Loans that are not Specially Serviced
Mortgage Loans) or the Special Servicer (in the case of Specially Serviced
Mortgage Loans) shall deliver to the Paying Agent an Operating Statement
Analysis Report and a CMSA Financial File for each Mortgaged Property (in
electronic format), prepared using the non-normalized quarterly operating
statements and rent rolls received from the related Mortgagor. Not later than
the Report Date occurring in July of each year, beginning in 2002, the Master
Servicer (in the case of Mortgage Loans that are not Specially Serviced Mortgage
Loans) or the Special Servicer (in the case of Specially Serviced Mortgage
Loans) shall deliver to the Paying Agent an Operating Statement Analysis Report,
a CMSA Financial File and an NOI Adjustment Worksheet for each Mortgage Loan (in
electronic format), based on the most recently available year-end financial
statements and most recently available rent rolls of each applicable Mortgagor
(to the extent provided to the Master Servicer by or on behalf of each
Mortgagor, or, in the case of Specially Serviced Mortgaged Loans, as provided to
the Special Servicer, which Special Servicer shall forward such information to
the Master Servicer on or before May 31 of each such year), containing such
information and analyses for each Mortgage Loan provided for in the respective
forms of Operating Statement Analysis Report, CMSA Financial File and an NOI
Adjustment Worksheet as would customarily be included in accordance with the
Servicing Standard including, without limitation, Debt Service Coverage Ratios
and income. In addition, the Master Servicer shall deliver to the Operating
Adviser, and upon request the Master Servicer shall make available to the Rating
Agencies, the Special Servicer, the Paying Agent and the Trustee, within 30 days
following receipt thereof by the Master Servicer, copies of any annual, monthly
or quarterly financial statements and rent rolls collected with respect to the
Mortgaged Properties. As and to the extent reasonably requested by the Special
Servicer, the Master Servicer shall make inquiry of any Mortgagor with respect
to such information or as regards the performance of the related Mortgaged
Property in general. The Paying Agent shall provide or make available
electronically at no cost to the Certificateholders or Certificate Owners, the
Rating Agencies, the Operating Adviser, the Depositor, the Placement Agents, the
Underwriters, and solely as it relates to any A/B Mortgage Loan, to the holder
of the related B Note, the Operating Statement Analysis Reports, CMSA Financial
Files and NOI Adjustment Worksheets described above pursuant to Section 5.4(a).
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SECTION 8.15 OTHER AVAILABLE INFORMATION AND CERTAIN RIGHTS OF THE
MASTER SERVICER.
(a) Subject to paragraphs (b), (c) and (d) below, the Paying Agent
shall make available at its Corporate Trust Office, during normal business
hours, upon reasonable advance written notice for review by any
Certificateholder, any Certificate Owner, any Seller, any Primary Servicer, any
Placement Agent, any Underwriter, each Rating Agency, the Paying Agent or the
Depositor (and the holder of a B Note, if it relates to a B Note), originals or
copies of, among other things, the following items: (i) this Agreement and any
amendments thereto, (ii) all final and released Operating Statement Analysis
Reports and the Master Servicer Remittance Reports, (iii) all Officer's
Certificates (including Officer's Certificates evidencing any determination of
Nonrecoverable Advances) delivered to the Trustee and the Paying Agent since the
Closing Date, (iv) all accountants' reports delivered to the Trustee and the
Paying Agent since the Closing Date, (v) any and all modifications, waivers and
amendments of the terms of a Mortgage Loan entered into by the Master Servicer
and/or the Special Servicer and (vi) any and all Officers' Certificates (and
attachments thereto) delivered to the Trustee and the Paying Agent to support
the Master Servicer's determination that any Advance was not or, if made, would
not be, recoverable. The Trustee and the Paying Agent will be permitted to
require payment of a sum to be paid by the requesting party (other than the
Rating Agencies, the Trustee, the Paying Agent, any Placement Agent or any
Underwriter) sufficient to cover the reasonable costs and expenses of making
such information available.
(b) Subject to the restrictions described below, the Master Servicer
shall afford the Rating Agencies, the Depositor, the Trustee, the Paying Agent,
the Special Servicer, the Primary Servicer, the Sellers, the Placement Agents,
the Underwriters, the Operating Adviser, any Certificateholder, any holder of a
B Note or Certificate Owner, upon reasonable notice and during normal business
hours, reasonable access to all information referred to in Section 8.15(a) and
any additional relevant, non-attorney-client-privileged records and
documentation regarding the applicable Mortgage Loans, REO Property and all
accounts, insurance policies and other relevant matters relating to this
Agreement (which access may occur by means of the availability of information on
the Master Servicer's or the Paying Agent's internet website), and access to
Servicing Officers of the Master Servicer responsible for its obligations
hereunder. Copies of information or access will be provided to
Certificateholders and each Certificate Owner providing satisfactory evidence of
ownership of Certificates or beneficial ownership of a Certificate, as the case
may be, which may include a certification. Copies (or computer diskettes or
other digital or electronic copies of such information if reasonably available
in lieu of paper copies) of any and all of the foregoing items shall be made
available by the Master Servicer upon request; provided, however, that the
Master Servicer shall be permitted to require payment by the requesting party
(other than the Depositor, the Trustee, the Paying Agent, the Special Servicer,
any Placement Agent, any Underwriter, or any Rating Agency) of a sum sufficient
to cover the reasonable expenses actually incurred by the Master Servicer of
providing access or copies (including electronic or digital copies) of any such
information requested in accordance with the preceding sentence.
(c) Nothing herein shall be deemed to require the Master Servicer to
confirm, represent or warrant the accuracy of (or to be liable or responsible
for) any other Person's
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information or report. Notwithstanding the above, the Master Servicer shall not
have any liability to the Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Special Servicer, any Certificateholder, any Certificate Owner, any
holder of a B Note, any Placement Agent, any Underwriter, any Rating Agency or
any other Person to whom it delivers information pursuant to this Section 8.15
or any other provision of this Agreement for federal, state or other applicable
securities law violations relating to the disclosure of such information. In the
event any Person brings any claims relating to or arising from the foregoing
against the Master Servicer (or any employee, attorney, officer, director or
agent thereof), the Trust (from amounts held in any account or otherwise) shall
hold harmless and indemnify the Master Servicer from any loss or expense
(including attorney fees) relating to or arising from such claims.
(d) The Master Servicer shall produce the reports required of it under
this Agreement; provided, however, that the Master Servicer shall not be
required to produce any ad hoc non-standard written reports with respect to such
Mortgage Loans. In the event the Master Servicer elects to provide such
non-standard reports, it may require the Person requesting such report (other
than a Rating Agency) to pay a reasonable fee to cover the costs of the
preparation thereof. Notwithstanding anything to the contrary herein, as a
condition to the Master Servicer making any report or information available upon
request to any Person other than the parties hereto, the Master Servicer may
require that the recipient of such information acknowledge that the Master
Servicer may contemporaneously provide such information to the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Special Servicer, the Primary
Servicer, the Sellers, any Placement Agent, any Underwriter, any Rating Agency
and/or the Certificateholders, the holder of a B Note or Certificate Owners. Any
transmittal of information by the Master Servicer to any Person other than the
Trustee, the Paying Agent, the Master Servicer, the Special Servicer, the Rating
Agencies, the Operating Adviser or the Depositor may be accompanied by a letter
from the Master Servicer containing the following provision:
"By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities laws restrict
any person who possesses material, non-public information regarding the
Trust which issued Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2002-TOP6 from
purchasing or selling such Certificates in circumstances where the
other party to the transaction is not also in possession of such
information. You also acknowledge and agree that such information is
being provided to you for the purpose of, and such information may be
used only in connection with, evaluation by you or another
Certificateholder, Certificate Owner or prospective purchaser of such
Certificates or beneficial interest therein."
(e) The Master Servicer may, at its discretion, make available by
electronic media and bulletin board service certain information and may make
available by electronic media or bulletin board service (in addition to making
such information available as provided herein) any reports or information
required by this Agreement that the Master Servicer is required to provide to
any of the Rating Agencies, the Depositor and anyone the Depositor reasonably
designates.
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(f) The Master Servicer shall cooperate in providing the Rating
Agencies with such other pertinent information relating to the Mortgage Loans as
is or should be in their respective possession as the Rating Agencies may
reasonably request.
SECTION 8.16 RULE 144A INFORMATION. For as long as any of the
Certificates are "restricted securities" within the meaning of Rule 144A under
the Securities Act, the Master Servicer agrees to provide to the Paying Agent or
the Luxembourg Paying Agent, as applicable, for delivery to any Holder thereof,
any Certificate Owner therein and to any prospective purchaser of the
Certificates or beneficial interest therein reasonably designated by the Paying
Agent or the Luxembourg Paying Agent, as applicable, upon the request of such
Certificateholder, such Certificate Owner, the Paying Agent or the Luxembourg
Paying Agent, as applicable, subject to this Section 8.16 and the provisions of
Section 8.15, any information prepared by the Master Servicer that is required
to be provided to such holder or prospective purchaser to satisfy the condition
set forth in Rule 144A(d)(4) under the Securities Act, including, without
limitation, copies of the reports and information described in Sections 8.15(a)
and (b).
Any recipient of information provided pursuant to this
Section 8.16 shall agree that such information shall not be disclosed or used
for any purpose other than the evaluation of the Certificates by such Person and
the Master Servicer shall be permitted to use the letter referred to in Section
8.15(d). Unless the Master Servicer chooses to deliver the information directly,
the Depositor, the Placement Agents, the Underwriters, the Paying Agent or the
Luxembourg Paying Agent shall be responsible for the physical delivery of the
information requested pursuant to this Section 8.16. As a condition to the
Master Servicer making any report or information available upon request to any
Person other than the parties hereto, the Master Servicer may require that the
recipient of such information acknowledge that the Master Servicer may
contemporaneously provide such information to the Depositor, the Trustee, the
Paying Agent, the Luxembourg Paying Agent, the Placement Agents, the
Underwriters, any Rating Agency and/or the Certificateholders and Certificate
Owners. The Master Servicer will be permitted to require payment of a sum to be
paid by the requesting party (other than the Rating Agencies, the Trustee, the
Paying Agent, the Placement Agents or the Underwriters) sufficient to cover the
reasonable costs and expenses of making such information available.
SECTION 8.17 INSPECTIONS. The Master Servicer shall, at its own
expense, inspect or cause to be inspected each Mortgaged Property other than
Mortgaged Properties related to Specially Serviced Mortgage Loans, every
calendar year beginning in 2003, or every second calendar year beginning in 2003
if the Principal Balance of the related Mortgage Loan is under $2 million;
provided that the Master Servicer shall, at the expense of the Trust, inspect or
cause to be inspected each Mortgaged Property related to a Mortgage Loan that
has a Debt Service Coverage Ratio that falls below 1.0x. The Master Servicer
shall prepare an Inspection Report relating to each inspection. The Master
Servicer shall promptly forward the applicable Inspection Report to the Rating
Agencies, the Placement Agents, the Underwriters, the Depositor, the Trustee,
the Paying Agent, the Operating Adviser, the Special Servicer and solely as it
relates to any A/B Mortgage Loan, to the holder of the related B Note, and upon
request, to any Certificateholder, any Certificate Owner, any Seller and any
Primary Servicer. The Special Servicer shall have the right to inspect or cause
to be inspected (at its own expense) every calendar year any Mortgaged Property
related to a Mortgage Loan that is not a Specially
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Serviced Mortgage Loan, provided that the Special Servicer notifies the Master
Servicer prior to such inspection.
SECTION 8.18 MODIFICATIONS, WAIVERS, AMENDMENTS, EXTENSIONS AND
CONSENTS.
Subject to the limitations of Section 12.3 hereof, the Master Servicer
shall have the following powers:
(a) (i) The Master Servicer in accordance with the Servicing Standard
may agree to any modification, waiver, amendment or consent of or relating to
any term other than a Money Term of a Mortgage Loan that is not a Specially
Serviced Mortgage Loan, provided that such amendment would not result in an
Adverse REMIC Event; and provided, further that if any consent relates to a
release of a letter of credit relating to any Mortgage Loan (other than letters
of credit or portions thereof released upon satisfaction of conditions specified
in the related agreements), then (i) the Master Servicer shall notify the
Special Servicer of any Mortgagor's request to release such letter of credit
which the Master Servicer recommends to release, and (ii) if the terms of the
related Mortgage Loan do not require the Master Servicer to approve such
release, then the Special Servicer shall within five Business Days provide
notice to the Master Servicer on whether the Master Servicer should approve the
release (and the failure of the Special Servicer to give the Master Servicer
such notice shall automatically be deemed to be an approval by the Special
Servicer that the Master Servicer should grant such release). Notwithstanding
the preceding sentence, if the Master Servicer recommends to approve such
modification, waiver, amendment or consent (including, without limitation, any
waiver of any requirement that the Mortgagor post additional reserves or a
letter of credit upon the failure of the Mortgagor to satisfy conditions
specified in the Mortgage Loan documents), the Master Servicer shall provide to
the Special Servicer a copy of the Master Servicer's recommendation and the
relevant information obtained or prepared by the Master Servicer in connection
therewith (A) the Special Servicer shall have the right hereunder to grant or
withhold consent to any such proposed modification, waiver, amendment or
consent, and such consent of the Special Servicer shall not be unreasonably
withheld, consistent with the Servicing Standard, (B) failure of the Special
Servicer to notify the Master Servicer, within five Business Days following the
Master Servicer's delivery of the recommendation described above, of its
determination to grant or withhold such consent shall be deemed to constitute a
grant of such consent and (C) the Master Servicer shall not enter into any such
proposed modification, waiver, amendment or consent unless it has received the
written consent of the Special Servicer or such consent has been deemed to have
been granted as described above. Notwithstanding anything in this Agreement to
the contrary, the Master Servicer shall not be required to obtain or request the
consent of the Special Servicer in connection with any modification, waiver or
amendment, or granting its consent to transactions, under one or more of the
Mortgage Loans that in each case the Master Servicer has determined (in
accordance with the Servicing Standard) is immaterial. In any event, the Master
Servicer shall promptly notify the Special Servicer of any modification, waiver,
amendment or consent executed by the Master Servicer pursuant to this Section
8.18(a)(i) and provide to the Special Servicer a copy thereof. Notwithstanding
the foregoing provisions of this Section 8.18, if the Mortgage Loan documents
require a Mortgagor to pay a fee for an assumption, modification, waiver,
amendment or consent that would be due or partially due to
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the Special Servicer, then the Master Servicer shall not waive the portion of
such fee due to the Special Servicer without the Special Servicer's approval.
Notwithstanding the foregoing, the Special Servicer acknowledges that
the Master Servicer has delegated certain tasks, rights and obligations to the
Primary Servicer with respects to Post Closing Requests (as defined in the
Primary Servicing Agreement) pursuant to Section 8.4 of this Agreement. The
Primary Servicing Agreement classifies certain Post Closing Requests as Category
1 Requests (as defined in the Primary Servicing Agreement), in which Primary
Servicer has certain authority to evaluate and process such requests in
accordance with this Agreement, the applicable Primary Servicing Agreement and
applicable Mortgage Loan documents.
With respect to a Category 1 Request that involves a condition, term or
provision that requires, or specifies a standard of, consent or approval of the
applicable Mortgagee under the Mortgage Loan documents, the Primary Servicing
Agreement provide for Master Servicer's determination of materiality of such
condition, term or provision requiring approval or consent and the referral of
such condition, term or provision to a Special Servicer for consent in
accordance with the terms of the Primary Servicing Agreement upon a
determination of materiality. Special Servicer acknowledges such provisions.
Nothing in this Agreement, however, shall grant the Primary Servicer greater
authority, discretion or delegated rights over Post Closing Requests than are
set forth in the Primary Servicing Agreement.
(ii) The Master Servicer may, without the consent of the Special
Servicer, extend the maturity date of any Balloon Mortgage Loan that is not a
Specially Serviced Mortgage Loan to a date that is not more than 60 days
following the original Maturity Date, if in the Master Servicer's sole judgment
exercised in good faith (and evidenced by an Officer's Certificate), a default
in the payment of the Balloon Payment is reasonably foreseeable and such
extension is reasonably likely to produce a greater recovery to the Holders on a
net present value basis than liquidation of such Mortgage Loan and the Mortgagor
has obtained an executed written commitment (subject only to satisfaction of
conditions set forth therein) for refinancing of the Mortgage Loan or purchase
of the related Mortgaged Property. The Master Servicer shall process all such
extensions and shall be entitled to (as additional servicing compensation) 100%
of any extension fees collected from a Mortgagor with respect to any such
extension.
(b) The Master Servicer may require, in its discretion (unless
prohibited or otherwise provided in the Mortgage Loan documents), as a condition
to granting any request by a Mortgagor for any consent, modification, waiver or
amendment, that such Mortgagor pay to the Master Servicer a reasonable and
customary modification fee to the extent permitted by law; provided that the
collection of such fee shall not be permitted if collection of such fee would
cause a "significant modification" (within the meaning of Treasury Regulation
Section 1.860G-2(b) of the Mortgage Loan). The Master Servicer may charge the
Mortgagor for any costs and expenses (including attorneys' fees and rating
agency fees) incurred by the Master Servicer or the Special Servicer (which
amounts shall be reimbursed to the Special Servicer) in connection with any
request for a modification, waiver or amendment. The Master Servicer agrees to
use its best reasonable efforts in accordance with the Servicing Standard to
collect such costs, expenses and fees from the Mortgagor, provided that the
failure or inability of the Mortgagor to pay any such costs and expenses shall
not impair the right of the Master Servicer to cause such costs and
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expenses (but not including any modification fee), and interest thereon at the
Advance Rate, to be paid or reimbursed by the Trust as a Servicing Advance (to
the extent not paid by the Mortgagor). If the Master Servicer believes that the
costs and expenses (including attorneys' fees) to be incurred by the Master
Servicer in connection with any request for a modification, waiver or amendment
will result in a payment or reimbursement by the Trust, then the Master Servicer
shall notify the Special Servicer.
The parties hereto acknowledge that (a) if the payments described in
paragraph 42 of Exhibit 2 to Mortgage Loan Purchase Agreement II, Mortgage Loan
Purchase Agreement III and Mortgage Loan Purchase Agreement V regarding the
obligation of a related Mortgagor to pay the reasonable costs and expenses
associated with any substitution of the related Mortgaged Property are
insufficient to reimburse the Trust or (b) if the Trust incurs any Additional
Trust Expense associated solely with the substitution of the Mortgaged Property
that is not required to be paid by the related Mortgagor pursuant to the related
Mortgage Loan documents (and such Additional Trust Expense is not paid by the
Mortgagor), including, but not limited to, rating agency fees or opinions of
counsel, then in either case the sole obligation of the Seller under Mortgage
Loan Purchase Agreement II, Mortgage Loan Purchase Agreement III and Mortgage
Loan Purchase Agreement V, as applicable, shall be to pay an amount equal to
such insufficiency or expense to the extent the related Mortgagor is not
required to pay them. Promptly upon receipt of notice of such insufficiency or
unpaid expense, the Master Servicer shall request the related Seller to make
such payment by deposit to the Certificate Account.
(c) The Master Servicer shall notify the Trustee, the Paying Agent and
the Special Servicer of any modification, waiver or amendment of any term of any
Mortgage Loan permitted by it under this Section and the date thereof, and shall
deliver to the Trustee for deposit in the related Mortgage File, an original
counterpart of the agreement relating to such modification, waiver or amendment,
promptly following the execution thereof except to the extent such documents
have been submitted to the applicable recording office, in which event the
Master Servicer shall promptly deliver copies of such documents to the Trustee.
The Master Servicer shall not agree to any modification, waiver, or amendment of
any Money Term of a Mortgage Loan or any term of a Specially Serviced Mortgage
Loan. The Master Servicer shall notify the holder of the B Note of any
modification of the monthly payments of an A/B Mortgage Loan and such monthly
payments shall be allocated in accordance with the related Intercreditor
Agreement.
(d) If the Mortgage Loan documents relating to a Mortgage Loan provide
for certain conditions to be satisfied prior to the Master Servicer releasing
additional collateral for the Mortgage Loan (e.g., the release, reduction or
termination of reserves or letters of credit or the establishment of reserves),
then the Master Servicer shall be permitted to waive any such condition without
obtaining the consent of the Special Servicer, provided that (1) the aggregate
amount of the related releases or establishments is no greater than the smaller
of 10% of the outstanding unpaid Principal Balance or $75,000 or (2) the
condition to be waived is deemed to be non-material in accordance with the
Servicing Standard. Notwithstanding the foregoing, without the Special
Servicer's consent or except as provided in the specific Mortgage Loan
documents, the Master Servicer shall not waive: (1) a requirement for any such
additional collateral to exist, or (2) a lock box requirement. With respect to
any Mortgage Loan identified on Schedule XII as an "earnout loan," the Master
Servicer shall not consent to the release of any
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earnout reserve amounts unless the Special Servicer shall have approved such
release. The Master Servicer shall promptly provide to the Special Servicer a
written recommendation with respect to the release of any earnout reserve
amounts and the Master Servicer shall process any such release.
(e) Neither the Master Servicer nor any Primary Servicer will be
required to obtain a Rating Agency Confirmation in connection with this
Agreement unless the terms of this Agreement specifically requires the Master
Servicer to do so, and if so required by the terms of this Agreement, the Master
Servicer and any Primary Servicer shall not be permitted to waive (i) the Rating
Agency Confirmation requirement or (ii) the obligation of a Mortgagor to pay all
or any portion of any fee payable in connection with obtaining the Rating Agency
Confirmation.
SECTION 8.19 SPECIALLY SERVICED MORTGAGE LOANS.
(a) The Master Servicer shall send a written notice to the Special
Servicer, the Rating Agencies, the Paying Agent, the Trustee and solely as it
relates to any A/B Mortgage Loan, to the holder of the related B Note, within
two Business Days after becoming aware of a Servicing Transfer Event with
respect to a Mortgage Loan, which notice shall identify the related Mortgage
Loan and set forth in reasonable detail the nature and relevant facts of such
Servicing Transfer Event and whether such Mortgage Loan is covered by an
Environmental Insurance Policy (and for purposes of stating whether such
Mortgage Loan is covered by an Environmental Insurance Policy the Master
Servicer may rely on Schedule XI attached hereto) and, except for the Rating
Agencies, the Paying Agent and the Trustee, shall be accompanied by a copy of
the Servicer Mortgage File. The Special Servicer shall not be liable for its
failure to deliver the notice set forth in Section 9.36(a) if such failure is
caused by its failure to receive the written notice set forth above.
(b) Prior to the transfer of the servicing of any Specially Serviced
Mortgage Loan to the Special Servicer, the Master Servicer shall notify the
related Mortgagor of such transfer in accordance with the Servicing Standard
(the form and substance of such notice shall be reasonably satisfactory to the
Special Servicer).
(c) Any calculations or reports prepared by the Master Servicer to the
extent they relate to Specially Serviced Mortgage Loans shall be based on
information supplied to the Master Servicer in writing by the Special Servicer
as provided hereby. The Master Servicer shall have no duty to investigate or
confirm the accuracy of any information provided to it by the Special Servicer
and shall have no liability for the inaccuracy of any of its reports due to the
inaccuracy of the information provided by the Special Servicer.
(d) On or prior to each Distribution Date, the Master Servicer shall
provide to the Special Servicer, in order for the Special Servicer to comply
with its obligations under this Agreement, such information (and in the form and
medium) as the Special Servicer may reasonably request in writing from time to
time, provided that (i) the Master Servicer shall not be required to produce any
ad hoc reports or incur any unusual expense or effort in connection therewith
and (ii) if the Master Servicer elects to provide such ad hoc reports, it may
require the Special Servicer to pay a reasonable fee to cover the costs of the
preparation thereof.
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SECTION 8.20 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE MASTER
SERVICER.
(a) The Master Servicer hereby represents and warrants to and covenants
with the Trustee and the Paying Agent, as of the date hereof:
(i) the Master Servicer is duly organized, validly existing
and in good standing as a national banking association under the laws of the
United States, and shall be and thereafter remain, in compliance with the laws
of each State in which any Mortgaged Property is located to the extent necessary
to perform its obligations under this Agreement, except where the failure to so
qualify or comply would not adversely affect the Master Servicer's ability to
perform its obligations hereunder in accordance with the terms of this
Agreement;
(ii) the Master Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all transactions and
obligations contemplated by this Agreement. The Master Servicer has duly and
validly authorized the execution, delivery and performance of this Agreement and
this Agreement has been duly executed and delivered by the Master Servicer; and
this Agreement, assuming the due authorization, execution and delivery thereof
by the Depositor, the Trustee, the Fiscal Agent, the Paying Agent and the
Special Servicer, evidences the valid and binding obligation of the Master
Servicer enforceable against the Master Servicer in accordance with its terms
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, receivership and other similar laws
affecting creditors' rights generally as from time to time in effect, and to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement will not (1) result
in a breach of any term or provision of its charter or by-laws or (2) conflict
with, result in a breach, violation or acceleration of, or result in a default
under, the terms of any other material agreement or instrument to which it is a
party or by which it may be bound, or any law, governmental rule, regulation, or
judgment, decree or order applicable to it of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which
materially and adversely affects its ability to perform its obligations under
this Agreement;
(iv) no litigation is pending or, to the Master Servicer's
knowledge, threatened, against it, that would materially and adversely affect
the execution, delivery or enforceability of this Agreement or its ability to
service the Mortgage Loans or to perform any of its other obligations hereunder
in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery and
performance by it of, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated hereby, or if any such consent,
approval, authorization or order is required, it has obtained the same or will
obtain the same prior to the time necessary to perform its obligations under
this
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Agreement, and, except to the extent in the case of performance, that its
failure to be qualified as a foreign corporation or licensed in one or more
states is not necessary for the performance by it of its obligations hereunder;
and
(vi) the performance of the services by the Master Servicer
contemplated by this Agreement are in the ordinary course of business of the
Master Servicer and the Master Servicer possesses all licenses, permits and
other authorizations necessary to perform its duties hereunder.
(b) It is understood that the representations and warranties set forth
in this Section 8.20 shall survive the execution and delivery of this Agreement.
(c) Any cause of action against the Master Servicer arising out of the
breach of any representations and warranties made in this Section shall accrue
upon the giving of written notice to the Master Servicer by any of the Trustee
or the Master Servicer. The Master Servicer shall give prompt notice to the
Trustee, the Depositor, the Primary Servicer and the Special Servicer of the
occurrence, or the failure to occur, of any event that, with notice or the
passage of time or both, would cause any representation or warranty in this
Section to be untrue or inaccurate in any respect.
SECTION 8.21 MERGER OR CONSOLIDATION. Any Person into which the Master
Servicer may be merged or consolidated, or any Person resulting from any merger,
conversion, other change in form or consolidation to which the Master Servicer
shall be a party, or any Person succeeding to the business of the Master
Servicer, shall be the successor of the Master Servicer hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided, however, that each of the Rating Agencies provides a
Rating Agency Confirmation. If the conditions to the provisions in the foregoing
sentence are not met, the Trustee may terminate the Master Servicer's servicing
of the Mortgage Loans pursuant hereto, such termination to be effected in the
manner set forth in Sections 8.28 and 8.29.
SECTION 8.22 RESIGNATION OF MASTER SERVICER.
(a) Except as otherwise provided in Section 8.22(b) hereof, the Master
Servicer shall not resign from the obligations and duties hereby imposed on it
unless it determines that the Master Servicer's duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it. Any such
determination permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee. No
such resignation shall become effective until a successor servicer designated by
the Trustee, with the consent of the Depositor and the Paying Agent, shall have
assumed the Master Servicer's responsibilities and obligations under this
Agreement and Rating Agency Confirmation shall have been obtained. Notice of
such resignation shall be given promptly by the Master Servicer to the Trustee.
(b) The Master Servicer may resign from the obligations and duties
imposed on it, upon 30 days notice to the Trustee and the Paying Agent, provided
that (i) a successor servicer (w) is available, (x) has assets of at least
$15,000,000, (y) is willing to assume the
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obligations, responsibilities, and covenants to be performed hereunder by the
Master Servicer on substantially the same terms and conditions, and for not more
than equivalent compensation to that herein provided and (z) assumes all
obligations under the Primary Servicing Agreement; (ii) the Master Servicer
bears all costs associated with its resignation and the transfer of servicing;
and (iii) Rating Agency Confirmation is obtained with respect to such servicing
transfer, as evidenced by a letter delivered to the Trustee by each Rating
Agency.
SECTION 8.23 ASSIGNMENT OR DELEGATION OF DUTIES BY MASTER SERVICER.
The Master Servicer shall have the right without the prior written consent of
the Trustee to (A) delegate or subcontract with or authorize or appoint anyone,
or delegate certain duties to other professionals such as attorneys and
appraisers, as an agent of the Master Servicer (as provided in Section 8.4) to
perform and carry out any duties, covenants or obligations to be performed and
carried out by the Master Servicer hereunder or (B) assign and delegate all of
its duties hereunder; provided, however, that with respect to clause (B), (i)
the Master Servicer gives the Depositor, the Special Servicer, the Primary
Servicer, the holder of the B Note (only if such assignment/delegation relates
to the related A/B Mortgage Loan) and the Trustee notice of such assignment and
delegation; (ii) such purchaser or transferee accepting such assignment and
delegation executes and delivers to the Depositor and the Trustee an agreement
accepting such assignment, which contains an assumption by such Person of the
rights, powers, duties, responsibilities, obligations and liabilities of the
Master Servicer, with like effect as if originally named as a party to this
Agreement and the Primary Servicing Agreement; (iii) the purchaser or transferee
has assets in excess of $15,000,000; (iv) such assignment and delegation is the
subject of a Rating Agency Confirmation; and (v) the Depositor consents to such
assignment and delegation, such consent not be unreasonably withheld. In the
case of any such assignment and delegation in accordance with the requirements
of subclause (B) of this Section, the Master Servicer shall be released from its
obligations under this Agreement, except that the Master Servicer shall remain
liable for all liabilities and obligations incurred by it as the Master Servicer
hereunder prior to the satisfaction of the conditions to such assignment set
forth in the preceding sentence. Notwithstanding the above, the Master Servicer
may appoint the Primary Servicer and Sub-Servicers in accordance with Section
8.4 hereof.
SECTION 8.24 LIMITATION ON LIABILITY OF THE MASTER SERVICER AND OTHERS.
(a) Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
holders of the Certificates, the Depositor, the Trustee, the Fiscal Agent, the
Paying Agent, the Placement Agents, the Underwriters, the holder of any B Note
or the Special Servicer for any action taken or for refraining from the taking
of any action in good faith, or using reasonable business judgment, consistent
with the Servicing Standard; provided that this provision shall not protect the
Master Servicer or any such person against any breach of a representation or
warranty contained herein or any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in its performance of
duties under the Agreement or by reason of negligent disregard of obligations
and duties hereunder. The Master Servicer and any director, officer, employee or
agent of the Master Servicer may rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person (including, without
limitation, the Special Servicer) respecting any matters arising hereunder. The
Master Servicer shall not be under any obligation to appear in, prosecute or
defend any legal action which is not incidental to its duties
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to service the Mortgage Loans in accordance with this Agreement; provided that
the Master Servicer may in its sole discretion undertake any such action which
it may reasonably deem necessary or desirable in order to protect the interests
of the Certificateholders and the Trustee in the Mortgage Loans, or the
interests of the holder of any B Note (subject to the Special Servicer's
servicing of Specially Serviced Mortgage Loans as contemplated herein), or shall
undertake any such action if instructed to do so by the Trustee. In such event,
all legal expenses and costs of such action shall be expenses and costs of the
Trust, and the Master Servicer shall be entitled to be reimbursed therefor as
Servicing Advances as provided by Section 5.2, subject to the provisions of
Section 4.4 hereof.
(b) In addition, the Master Servicer shall have no liability with
respect to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to the Master Servicer and conforming to the requirements of
this Agreement. Subject to the Servicing Standard, the Master Servicer shall
have the right to rely on information provided to it by the Special Servicer and
Mortgagors, and will have no duty to investigate or verify the accuracy thereof.
Neither the Master Servicer, nor any director, officer, employee, agent or
Affiliate, shall be personally liable for any error of judgment made in good
faith by any officer, unless it shall be proved that the Master Servicer or such
officer was negligent in ascertaining the pertinent facts. Neither the Master
Servicer nor any director, officer, employee, agent or Affiliate, shall be
personally liable for any action taken, suffered or omitted by it in good faith
and believed by it to be authorized or within the discretion, rights or powers
conferred upon it by this Agreement.
(c) The Master Servicer shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Special Servicer, the Paying Agent, Trustee or the Fiscal Agent
in this Agreement. The Trust shall indemnify and hold harmless the Master
Servicer from any and all claims, liabilities, costs, charges, fees or other
expenses which relate to or arise from any such breach of representation,
warranty or covenant to the extent the Master Servicer is unable to recover such
amounts from the Person in breach.
(d) Except as otherwise specifically provided herein:
(i) the Master Servicer may rely, and shall be protected in
acting or refraining from acting upon, any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, financial statement,
agreement, appraisal, bond or other document (in electronic or paper format)
reasonably believed or in good faith believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(ii) the Master Servicer may consult with counsel, and any
written advice or Opinion of Counsel shall be full and complete authorization
and protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
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(iii) the Master Servicer shall not be personally liable for
any action taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion, rights or powers conferred upon it by
this Agreement; and
(iv) the Master Servicer, in preparing any reports hereunder,
may rely, and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document, agreement,
covenant, notice, request or other paper reasonably believed by it to be genuine
and provided by any Mortgagor or manager of a Mortgaged Property.
(e) The Master Servicer and any director, officer, employee or agent
of the Master Servicer shall be indemnified by the Trustee, the Fiscal Agent,
the Paying Agent and the Special Servicer, as the case may be, and held harmless
against any loss, liability or expense including reasonable attorneys' fees
incurred in connection with any legal action relating to the Trustee's, Fiscal
Agent's, the Paying Agent's or the Special Servicer's, as the case may be,
respective willful misfeasance, bad faith or negligence in the performance of
its respective duties hereunder or by reason of negligent disregard of its
respective duties hereunder, other than any loss, liability or expense incurred
by reason of willful misfeasance, bad faith or negligence in the performance of
any of the Master Servicer's duties hereunder or by reason of negligent
disregard of the Master Servicer's obligations and duties hereunder. The Master
Servicer shall immediately notify the Trustee, the Paying Agent and the Special
Servicer if a claim is made by a third party with respect to this Agreement or
the Mortgage Loans entitling the Master Servicer to indemnification hereunder,
whereupon the Trustee, the Paying Agent, or the Special Servicer, in each case,
to the extent the claim is related to its respective willful misfeasance, bad
faith or negligence, may assume the defense of any such claim (with counsel
reasonably satisfactory to the Master Servicer) and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Trustee, the Paying Agent
and the Special Servicer shall not affect any rights that the Master Servicer
may have to indemnification under this Agreement or otherwise, unless the
Trustee's, the Paying Agent's or the Special Servicer's defense of such claim is
materially prejudiced thereby. Such indemnity shall survive the termination of
this Agreement or the resignation or removal of the Master Servicer hereunder.
Any payment hereunder made by the Trustee, the Paying Agent, the Fiscal Agent or
the Special Servicer pursuant to this paragraph to the Master Servicer shall be
paid from the Trustee's, the Paying Agent's, Fiscal Agent's or Special
Servicer's own funds, without reimbursement from the Trust therefor except to
the extent achieved through subrogation as provided in this Agreement. Any
expenses incurred or indemnification payments made by the Trustee, the Paying
Agent, the Fiscal Agent or the Special Servicer shall be reimbursed by the party
so paid, if a court of competent jurisdiction makes a final judgment that the
conduct of the Trustee, the Paying Agent, the Fiscal Agent or the Special
Servicer, as the case may be, was (x) not culpable or (y) found to not have
acted with willful misfeasance, bad faith or negligence.
SECTION 8.25 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Master Servicer and any director, officer, employee or agent
of the Master Servicer shall be indemnified by the Trust and held harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments and any other costs,
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liabilities, fees and expenses incurred in connection with any legal action
relating to this Agreement, any Mortgage Loans, any REO Property or the
Certificates or any exercise of any right under this Agreement reasonably
requiring the use of counsel or the incurring of expenses other than any loss,
liability or expense incurred by reason of the Master Servicer's willful
misfeasance, bad faith or negligence in the performance of duties hereunder. The
Master Servicer shall assume the defense of any such claim (with counsel
reasonably satisfactory to the Master Servicer) and out of the Trust pay all
expenses in connection therewith, including counsel fees, and out of the Trust
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. The indemnification provided herein
shall survive the termination of this Agreement. The Trustee, the Paying Agent
or the Master Servicer shall promptly make from the Certificate Account any
payments certified by the Master Servicer to the Trustee and the Paying Agent as
required to be made to the Master Servicer pursuant to this Section 8.25.
(b) The Master Servicer agrees to indemnify the Trustee, the Fiscal
Agent, the Special Servicer, the Trust, the Depositor, the Paying Agent, and any
director, officer, employee, agent or Controlling Person thereof, and hold them
harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, liabilities, fees
and expenses that the Trustee, the Fiscal Agent, the Special Servicer, the
Depositor, the Paying Agent and the Trust may sustain arising from or as a
result of the willful misfeasance, bad faith or negligence in the performance of
any of the Master Servicer's duties hereunder or by reason of negligent
disregard of the Master Servicer's obligations and duties hereunder (including a
breach of such obligations a substantial motive of which is to obtain an
economic advantage from being released from such obligations), and if in any
such situation the Master Servicer is replaced, the parties hereto agree that
the amount of such claims, losses, penalties, fines, legal fees and related
costs, judgments, and other costs, liabilities, fees and expenses shall at least
equal the incremental costs, if any, of retaining a successor servicer. The
Trustee, the Fiscal Agent, the Special Servicer, the Paying Agent or the
Depositor, as applicable, shall immediately notify the Master Servicer if a
claim is made by any Person with respect to this Agreement or the Mortgage Loans
entitling the Trustee, the Fiscal Agent, the Depositor, the Special Servicer,
the Paying Agent or the Trust to indemnification under this Section 8.25(b),
whereupon the Master Servicer shall assume the defense of any such claim (with
counsel reasonably satisfactory to the Trustee, the Fiscal Agent, the Special
Servicer, the Paying Agent or the Depositor, as applicable) and pay all expenses
in connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Master Servicer shall not
affect any rights the Trustee, the Fiscal Agent, the Special Servicer, the
Depositor, the Paying Agent or the Trust may have to indemnification under this
Agreement or otherwise, unless the Master Servicer's defense of such claim is
materially prejudiced thereby. The indemnification provided herein shall survive
the termination of this Agreement and the resignation or termination of the
Master Servicer, the Fiscal Agent, the Special Servicer, the Paying Agent and
the Trustee. Any expenses incurred or indemnification payments made by the
Master Servicer shall be reimbursed by the party so paid, if a court of
competent jurisdiction makes a final, non-appealable judgment that the conduct
of the Master Servicer was not culpable or that the Master Servicer did not act
with willful misfeasance, bad faith or negligence.
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(c) The Primary Servicer and any director, officer, employee or agent
thereof shall be indemnified by the Trust and held harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, liabilities, fees and expenses incurred in
connection with any legal action relating to this Agreement, its related Primary
Servicing Agreement (but only if, and to the extent that, the Master Servicer
would have been entitled to indemnification therefor under this Agreement if it
were directly servicing the Mortgage Loan), any Mortgage Loans, any REO Property
or the Certificates or any exercise of any right under this Agreement or its
related Primary Servicing Agreement (limited as set forth above) reasonably
requiring the use of counsel or the incurring of expenses other than any loss,
liability or expense incurred by reason of a Primary Servicer's willful
misfeasance, bad faith or negligence in the performance of duties thereunder.
The applicable Primary Servicer shall assume the defense of any such claim (with
counsel reasonably satisfactory to the applicable Primary Servicer) and out of
the Trust pay all expenses in connection therewith, including counsel fees, and
out of the Trust promptly pay, discharge and satisfy any judgment or decree
which may be entered against it or them in respect of such claim. The
indemnification provided herein shall survive the termination of this Agreement
and the Primary Servicing Agreement. The Trustee, the Paying Agent or the Master
Servicer shall promptly make from the Certificate Account any payments certified
by a Primary Servicer to the Trustee and the Paying Agent as required to be made
to such Primary Servicer pursuant to this Section 8.25.
(d) The Primary Servicer agrees to indemnify the Trustee, the Fiscal
Agent, the Special Servicer, the Trust, the Depositor, the Paying Agent, and any
director, officer, employee, agent or Controlling Person thereof, and hold them
harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, liabilities, fees
and expenses that the Trustee, the Fiscal Agent, the Special Servicer, the
Depositor, the Paying Agent and the Trust may sustain arising from or as a
result of the willful misfeasance, bad faith or negligence in the performance of
any of the applicable Primary Servicer's duties under this Agreement, its
related Primary Servicing Agreement or by reason of negligent disregard of the
applicable Primary Servicer's obligations and duties thereunder (including a
breach of such obligations a substantial motive of which is to obtain an
economic advantage from being released from such obligations), and if in any
such situation the applicable Primary Servicer is replaced, the parties hereto
agree that the amount of such claims, losses, penalties, fines, legal fees and
related costs, judgments, and other costs, liabilities, fees and expenses shall
at least equal the incremental costs, if any, of retaining a successor primary
servicer. The Trustee, the Fiscal Agent, the Special Servicer, the Paying Agent
or the Depositor, as applicable, shall immediately notify the applicable Primary
Servicer if a claim is made by any Person with respect to this Agreement, the
related Primary Servicing Agreement or the Mortgage Loans entitling the Trustee,
the Fiscal Agent, the Depositor, the Special Servicer, the Paying Agent or the
Trust to indemnification under this Section 8.25(d), whereupon the applicable
Primary Servicer shall assume the defense of any such claim (with counsel
reasonably satisfactory to the Trustee, the Fiscal Agent, the Special Servicer,
the Paying Agent or the Depositor, as applicable) and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the applicable Primary Servicer
shall not affect any rights the Trustee, the Fiscal Agent, the Special Servicer,
the Depositor, the Paying Agent or the Trust may have to indemnification under
this Agreement, the related Primary Servicing Agreement or otherwise, unless the
Primary Servicer's defense of such claim is
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materially prejudiced thereby. The indemnification provided herein shall survive
the termination of this Agreement and the Primary Servicing Agreement and the
resignation or termination of the Master Servicer, the Fiscal Agent, the Special
Servicer, the Paying Agent and the Trustee. Any expenses incurred or
indemnification payments made by a Primary Servicer shall be reimbursed by the
party so paid, if a court of competent jurisdiction makes a final,
non-appealable judgment that the conduct of such Primary Servicer was not
culpable or that such Primary Servicer did not act with willful misfeasance, bad
faith or negligence.
SECTION 8.26 EXCHANGE ACT REPORTING. The Master Servicer, the Special
Servicer, the Paying Agent, the Trustee and the Fiscal Agent shall reasonably
cooperate with the Depositor in connection with the Depositor's satisfying the
reporting requirements in respect of the Trust under the Exchange Act. The
Paying Agent shall prepare, execute and file on behalf of the Depositor with
respect to the Trust any Forms 8-K and 10-K customary for similar securities as
required by the Exchange Act and the Rules and Regulations of the Securities and
Exchange Commission thereunder; provided that the Depositor shall file the
initial Form 8-K in connection with the issuance of the Certificates. The Paying
Agent shall file each Form 8-K with a copy of the related Monthly
Certificateholders Report attached thereto. Any other attachments to be filed
with any Form 8-K shall be delivered to the Paying Agent in Xxxxx-compatible
form or as otherwise agreed upon by the Paying Agent and the Depositor, at the
Depositor's expense, and any necessary conversion to XXXXX-compatible format
will be at the Depositor's expense. Such XXXXX filings shall be at the expense
of the Depositor. The Paying Agent shall continue to make such filings until
such time as the Depositor notifies the Paying Agent that the Depositor or its
agent or designee has obtained from the Securities and Exchange Commission a
no-action letter or other exemptive relief relating to reducing reporting
requirements in respect of the Trust under the Exchange Act and, in accordance
with and to the extent permitted by applicable law, the Depositor or such agent
or designee has filed a Form 15 relating to the automatic termination of
reporting in respect of the Trust under the Exchange Act. Beginning on or before
January 31, 2003, the Depositor shall pay the Paying Agent before January 31 of
each year a fee of $5,000 as compensation for preparing and filing such reports
for so long as such reports are required under the Exchange Act.
SECTION 8.27 COMPLIANCE WITH REMIC PROVISIONS. The Master Servicer
shall act in accordance with this Agreement and the REMIC Provisions and related
provisions of the Code in order to create or maintain the status of the REMICs
created hereby as REMICs under the Code. The Master Servicer shall take no
action or cause any REMIC Pool to take any action that could (i) endanger the
status of any REMIC Pool as a REMIC under the Code or (ii) result in the
imposition of a tax upon any REMIC Pool (including, but not limited to, the tax
on prohibited transactions as defined in Code Section 860F(a)(2) or on
prohibited contributions pursuant to Section 860G(d)) unless the Trustee shall
have received a Nondisqualification Opinion (at the expense of the party seeking
to take such action) to the effect that the contemplated action will not
endanger such status or result in the imposition of such tax. The Master
Servicer shall comply with the provisions of Article XII hereof.
SECTION 8.28 TERMINATION. The obligations and responsibilities of the
Master Servicer created hereby (other than the obligation of the Master Servicer
to make payments to the Paying Agent as set forth in Section 8.29 and the
obligations of the Master Servicer to the Trustee, the Paying Agent, Fiscal
Agent, the Special Servicer and the Trust) shall terminate (i) on
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the date which is the later of (A) the final payment or other liquidation of the
last Mortgage Loan remaining outstanding (and final distribution to the
Certificateholders) or (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) if an Event of Default described
in clauses 8.28(a)(iii), (iv) or (x) has occurred, 60 days following the date on
which the Trustee or Depositor gives written notice to the Master Servicer that
the Master Servicer is terminated or (iii) if an Event of Default described in
clauses 8.28(a)(i), (ii), (v), (vii), (viii) or (ix) has occurred, immediately
upon the date on which the Trustee or the Depositor gives written notice to the
Master Servicer that the Master Servicer is terminated. After any Event of
Default, the Trustee (i) may elect to terminate the Master Servicer by providing
such notice, and (ii) shall provide such notice if holders of Certificates
representing more than 25% of the Aggregate Certificate Balance of all
Certificates so direct the Trustee.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to remit to the Paying
Agent or otherwise make any payment required to be remitted by the Master
Servicer under the terms of this Agreement, including any required Advances; or
(ii) any failure by the Master Servicer to make a required
deposit to the Certificate Account which continues unremedied for one Business
Day following the date on which such deposit was first required to be made; or
(iii) any failure on the part of the Master Servicer duly to
observe or perform in any material respect any other of the duties, covenants or
agreements on the part of the Master Servicer contained in this Agreement which
continues unremedied for a period of 30 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Master Servicer by the Depositor or the Trustee; provided, however, that
if the Master Servicer certifies to the Trustee and the Depositor that the
Master Servicer is in good faith attempting to remedy such failure, such cure
period will be extended to the extent necessary to permit the Master Servicer to
cure such failure; provided, further that such cure period may not exceed 90
days; or
(iv) any breach of the representations and warranties
contained in Section 8.20 hereof that materially and adversely affects the
interest of any holder of any Class of Certificates and that continues
unremedied for a period of 30 days after the date on which notice of such
breach, requiring the same to be remedied, shall have been given to the Master
Servicer by the Depositor or the Trustee, provided, however, that if the Master
Servicer certifies to the Trustee and the Depositor that the Master Servicer is
in good faith attempting to remedy such breach, such cure period will be
extended to the extent necessary to permit the Master Servicer to cure such
breach; provided, further that such cure period may not exceed 90 days; or
(v) the Master Servicer is removed from S&P's approved master
servicer list and the ratings then assigned by S&P to any Classes of
certificates are downgraded, qualified or withdrawn (including, without
limitation, being placed on "negative credit watch") in connection with such
removal; or
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(vi) RESERVED
(vii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Master Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of 60
days; or
(viii) the Master Servicer shall consent to the appointment of
a conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Master Servicer or of
or relating to all or substantially all of its property; or
(ix) the Master Servicer shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take advantage
of any applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the foregoing; or
(x) the Master Servicer receives actual knowledge that Xxxxx'x
has (i) qualified, downgraded or withdrawn its rating or ratings of one or more
Classes of Certificates, or (ii) placed one or more Classes of Certificates on
"watch status" in contemplation of a rating downgrade or withdrawal (and such
"watch status" placement shall not have been withdrawn by Xxxxx'x within 60 days
of the date that the Master Servicer obtained such actual knowledge) and, in the
case of either of clauses (i) or (ii), citing servicing concerns with the Master
Servicer as the sole or material factor in such rating action.
(b) Notwithstanding the foregoing, if the Event of Default of the
Master Servicer occurs primarily by reason of the occurrence of a "Primary
Servicing Default" (as hereinafter defined) (that is, it would not have occurred
but for (a) the occurrence of such Primary Servicing Default and (b) the Master
Servicer failure to cause the cure of such event) and the Trustee (or the
Trustee at the direction of the Certificateholders pursuant to Section 8.28
hereof) elects to terminate the Master Servicer, then Xxxxx Fargo Bank, National
Association shall have the right to elect that the successor Master Servicer,
upon its succession, enter into a primary servicing agreement with Xxxxx Fargo
Bank, National Association with respect to all Mortgage Loans as to which that
Primary Servicing Default occurred, so long as the initial Master Servicer is on
the approved list of commercial mortgage loan servicers maintained by S&P, and
such agreement shall be substantially in the form of Exhibit G-1 hereto (but as
if Xxxxx Fargo Bank, National Association were the Primary Servicer or
Sub-Servicer thereunder and with applicable servicing fees and excess fees as
specified on the Mortgage Loan Schedule); and, in the case of an agreement in
the form of Exhibit G-1, thereupon Xxxxx Fargo Bank, National Association shall
be deemed to have been granted the rights and deemed to have assumed the
obligations granted to or imposed on "Primary Servicer" hereunder as to such
Mortgage Loans (and under such Primary Servicing Agreement). For purposes of the
preceding sentence, a "Primary Servicing Default" means an "event of default" of
the Primary Servicer under the
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related Primary Servicing Agreement of Principal Capital Management, LLC or of
the related sub-servicer under the related sub-servicing agreement (in effect as
of the date hereof) of GMAC Commercial Mortgage Corporation only in its capacity
as Sub-Servicer under the related sub-servicing agreement. If the Master
Servicer is terminated based upon an Event of Default set forth in clause (i)
(as to the obligation to make P&I Advances), (v) or (x) of Section 8.28(a), then
the Master Servicer shall have the right to enter into a primary servicing
agreement with the successor Master Servicer with respect to all Mortgage Loans
that are not then subject to a Primary Servicing Agreement, so long as the
terminated Master Servicer is on the approved list of commercial mortgage loan
servicers maintained by S&P.
SECTION 8.29 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of Section
8.28(a), specifying the Master Servicer Remittance Date upon which the final
transfer by the Master Servicer to the Paying Agent shall be made, shall be
given promptly in writing by the Master Servicer to the Paying Agent no later
than the later of (i) five Business Days after the final payment or other
liquidation of the last Mortgage Loan or (ii) the sixth day of the month of such
final distribution. Upon any such termination, the duties of the Master Servicer
(other than the obligation of the Master Servicer to pay to the Paying Agent the
amounts remaining in the Certificate Account as set forth below and the
obligations of the Master Servicer to the Trustee and the Trust and the Fiscal
Agent as provided herein) shall terminate and the Master Servicer shall transfer
to the Paying Agent the amounts remaining in the Certificate Account (and any
sub-account) after making the withdrawals permitted to be made pursuant to
Section 5.2 and shall thereafter terminate the Certificate Account and any other
account or fund maintained with respect to the Mortgage Loans.
(b) On the date specified in a written notice of termination given to
the Master Servicer pursuant to clause (ii) of Section 8.28(a), or on the date
on which a written notice of termination is given to the Master Servicer
pursuant to clause (iii) of Section 8.28(a) all authority, power and rights of
the Master Servicer under this Agreement, whether with respect to the Mortgage
Loans or otherwise, shall terminate (except for any rights relating to unpaid
servicing compensation or unreimbursed Advances or, if the terminated Master
Servicer is Xxxxx Fargo Bank, National Association, its rights to the Excess
Servicing Fee); provided that in no event shall the termination of the Master
Servicer be effective until a successor servicer shall have succeeded the Master
Servicer as successor servicer, subject to approval by the Rating Agencies,
notified the Master Servicer of such designation and such successor servicer
shall have assumed the Master Servicer's obligations and responsibilities
hereunder and under the Primary Servicing Agreement, as set forth in an
agreement substantially in the form hereof, with respect to the Mortgage Loans
and, in the circumstances set forth in the last sentence of Section 8.28(c),
entered into a new primary servicing agreement with the predecessor Master
Servicer in substantially the same form as Exhibit AA attached hereto. Except as
provided in the next sentence, the Trustee may not succeed the Master Servicer
as servicer until and unless it has satisfied the provisions that would apply to
a Person succeeding to the business of the Master Servicer pursuant to Section
8.22(b) hereof. Notwithstanding the foregoing sentence, in the event that the
Master Servicer is terminated as a result of an event described in Section
8.28(a)(vii), 8.28(a)(viii) or 8.28(a)(ix), the Trustee shall act as successor
servicer immediately upon delivery of a notice of termination to the Master
Servicer and shall use commercially
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reasonable efforts within 90 days of assuming the duties of the Master Servicer,
either to satisfy the conditions of Section 8.22(b) hereof or to transfer the
duties of the Master Servicer to a successor servicer who has satisfied such
conditions. The Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any
and all documents and other instruments, and to do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents or otherwise. The Master Servicer
agrees to cooperate with the Trustee, the Paying Agent and the Fiscal Agent in
effecting the termination of the Master Servicer's responsibilities and rights
hereunder as Master Servicer including, without limitation, notifying Mortgagors
of the assignment of the servicing function and providing the Trustee all
documents and records in electronic or other form reasonably requested by it to
enable the successor servicer designated by the Trustee to assume the Master
Servicer's functions hereunder and to effect the transfer to such successor for
administration by it of all amounts which shall at the time be or should have
been deposited by the Master Servicer in the Certificate Account and any other
account or fund maintained or thereafter received with respect to the Mortgage
Loans.
(c) If the Master Servicer receives a written notice of termination
pursuant to clause (ii) of Section 8.28(a) relating solely to an Event of
Default set forth in clause (v) or (x) of Section 8.28(a), and if the Master
Servicer provides the Trustee with the appropriate "request for proposal"
materials within five Business Days after receipt of such written notice of
termination, then the Trustee shall promptly thereafter (using such "request for
proposal" materials provided by the Master Servicer) solicit good faith bids for
the rights to service the Mortgage Loans under this Agreement from at least
three but no more than five Qualified Bidders or, if three Qualified Bidders
cannot be located, then from as many persons as the Trustee can determine are
Qualified Bidders. At the Trustee's request, the Master Servicer shall supply
the Trustee with the names of Persons from whom to solicit such bids. In no
event shall the Trustee be responsible if less than three Qualified Bidders
submit bids for the right to service the Mortgage Loans under this Agreement.
(d) Each bid proposal shall require any Successful Bidder, as a
condition of its bid, to enter into this Agreement as successor Master Servicer,
and to agree to be bound by the terms hereof and the terms of the Primary
Servicing Agreement, not later than 30 days after termination of the Master
Servicer hereunder. The Trustee shall select the Qualified Bidder with the
highest cash bid (or such other Qualified Bidder as the Master Servicer may
direct) (the "Successful Bidder") to act as successor Master Servicer hereunder.
The Trustee shall direct the Successful Bidder to enter into this Agreement as
successor Master Servicer pursuant to the terms hereof, and in connection
therewith to deliver the amount of the Successful Bidder's cash bid to the
Trustee by wire transfer of immediately available funds to an account specified
by the Trustee no later than 10:00 a.m. New York City time on the date specified
for the assignment and assumption of the servicing rights hereunder.
(e) Upon the assignment and acceptance of the servicing rights
hereunder to and by the Successful Bidder and receipt of such cash bid, the
Trustee shall remit or cause to be remitted to the terminated Master Servicer
the amount of such cash bid received from the Successful Bidder (net of all
out-of-pocket expenses incurred in connection with obtaining such bid and
transferring servicing) by wire transfer of immediately available funds to an
account
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specified by the terminated Master Servicer no later than 1:00 p.m. New York
City time on the date specified for the assignment and assumption of the
servicing rights hereunder.
(f) If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within 30 days after the termination of the Master
Servicer hereunder or no Successful Bidder was identified within such 30-day
period, the Trustee shall have no further obligations under Section 8.29(c) and
may act or may select another successor to act as Master Servicer hereunder in
accordance with Section 8.29(b).
(g) Notwithstanding anything to the contrary in this Section 8.29, the
successor master servicer must assume all of the obligations of the terminated
Master Servicer under the Primary Servicing Agreement (and the subservicing
agreement (in effect as of the date hereof) of GMAC Commercial Mortgage
Corporation) as a condition precedent to its becoming Master Servicer hereunder.
For purposes of the foregoing provisions of Section 8.29(c), the phrase
"rights to service" shall be construed to exclude those servicing rights and
duties as to which Xxxxx Fargo Bank, National Association has made an election
for the execution of a primary servicing agreement as contemplated by Section
8.28(c).
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS
BY SPECIAL SERVICER
SECTION 9.1 DUTIES OF SPECIAL SERVICER.
(a) Subject to the express provisions of this Agreement, for and on
behalf of the Trust and for the benefit of the Certificateholders as a whole,
and, solely as it relates to any A/B Mortgage Loan, for the benefit of the
holder of the related B Note, the Special Servicer shall service the Specially
Serviced Mortgage Loans and manage the related REO Properties in accordance with
the provisions of this Agreement and the Servicing Standard. Certain of the
provisions of this Article IX make explicit reference to their applicability to
Mortgage Loans and any B Note; notwithstanding such explicit references,
references in this Article IX to "Mortgage Loans" shall be construed, unless
otherwise specified, to refer also to such B Note (but any other terms that are
defined in Article I and used in this Article IX shall be construed according to
such definitions without regard to this sentence).
(b) The Special Servicer shall cooperate with the Master Servicer and
provide the Master Servicer with the information reasonably requested by the
Master Servicer, in writing, to the extent required to allow the Master Servicer
to perform its servicing obligations with respect to the Specially Serviced
Mortgage Loans hereunder; provided, however, that (i) the Special Servicer shall
not be required to produce any ad hoc reports or incur any unusual expense or
effort in connection therewith and (ii) if the Special Servicer elects to
provide such ad hoc reports, the Special Servicer may require the Master
Servicer to pay a reasonable fee to cover the costs of the preparation thereof.
The Special Servicer's obligations with respect to the servicing of any
Specially Serviced Mortgage Loan and any related REO Properties shall terminate
when
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such Specially Serviced Mortgage Loan has become a Rehabilitated Mortgage Loan,
unless and until another Servicing Transfer Event with respect to such
Rehabilitated Mortgage Loan occurs.
(c) The Special Servicer shall send a written notice to the Master
Servicer and the Paying Agent within two Business Days after becoming aware that
a Mortgage Loan has become a Rehabilitated Mortgage Loan, which notice shall
identify the applicable Mortgage Loan. Upon the receipt of such notice by the
Master Servicer and the Paying Agent, such Mortgage Loan shall become a
Rehabilitated Mortgage Loan and will be serviced by the Master Servicer.
(d) Upon the occurrence of a Servicing Transfer Event with respect to a
Mortgage Loan and upon the reasonable request of the Special Servicer, the
Master Servicer shall xxxx its records for such Mortgage Loan to cause any
monthly statements for amounts due on such Mortgage Loan to be sent thereafter
to the Special Servicer rather than the related Mortgagor. Upon receipt of any
such monthly statement, the Special Servicer shall, within two Business Days,
advise the Master Servicer of any changes to be made, and return the monthly
statement to the Master Servicer. The Master Servicer shall thereafter promptly
send the corrected monthly statement to the Mortgagor. If a Mortgage Loan
becomes a Rehabilitated Mortgage Loan, the Master Servicer shall send the
monthly statement to the Mortgagor as it did before such Mortgage Loan became a
Specially Serviced Mortgage Loan.
(e) All amounts collected by the Master Servicer with respect to a
Specially Serviced Mortgage Loan (other than a Mortgage Loan that has become an
REO Mortgage Loan and a Specially Serviced Mortgage Loan that is a B Note) shall
be deposited in the Certificate Account, and all amounts collected by the Master
Servicer with respect to a Specially Serviced Mortgage Loan that is a B Note
shall be deposited in the related A/B Loan Custodial Account. The Master
Servicer shall within three Business Days after receipt of any such payment,
notify the Special Servicer of the receipt of such payment and the amount
thereof. The Special Servicer shall, within one Business Day thereafter,
instruct the Master Servicer in writing how to apply such payment (with the
application of such payments to be made in accordance with the related Mortgage
Loan documents (including the related Intercreditor Agreement, if any) or in
accordance with this Agreement, as applicable).
(f) After the occurrence of any Servicing Transfer Event with respect
to any one or more Mortgage Loans that are the subject of any Environmental
Insurance Policy, (i) the Special Servicer shall monitor the dates by which any
claim must be made or action must be taken under such Environmental Insurance
Policy to achieve the payment of all amounts thereunder to which the Trust is
entitled in the event the Special Servicer has actual knowledge of any event
giving rise to a claim under such Environmental Insurance Policy (an "Insured
Environmental Event") and (ii) if the Special Servicer has actual knowledge of
an Insured Environmental Event with respect to such Mortgage Loan, the Special
Servicer shall take reasonable actions as are in accordance with the Servicing
Standard and the terms and conditions of the related Environmental Insurance
Policy to make a claim thereunder and achieve the payment of all amounts to
which the Trust is entitled thereunder. Any legal fees or other out-of-pocket
costs incurred in accordance with the Servicing Standard in connection with any
such claim shall be paid by, and reimbursable to, the Master Servicer as a
Servicing Advance. All
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extraordinary expenses (but not ordinary and routine or anticipated expenses)
incurred by the Special Servicer in fulfilling its obligations under this
Section 9.1 shall be paid by the Trust.
SECTION 9.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY OF
SPECIAL SERVICER. The Special Servicer, at its expense, shall maintain in
effect a Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance
Policy. The Servicer Errors and Omissions Insurance Policy and Servicer Fidelity
Bond shall be issued by a Qualified Insurer (unless the Special Servicer self
insures as provided below) and be in form and amount consistent with the
Servicing Standard. In the event that any such Servicer Errors and Omissions
Insurance Policy or Servicer Fidelity Bond ceases to be in effect, the Special
Servicer shall obtain a comparable replacement policy or bond from an insurer or
issuer meeting the requirements set forth above as of the date of such
replacement. So long as the long-term rating of the Special Servicer is not less
than two rating categories (ignoring pluses or minuses) lower than the highest
rating of the Certificates, but in any event not less than "BBB" as rated by S&P
and "A2" as rated by Xxxxx'x, the Special Servicer may self-insure for the
Servicer Fidelity Bond and the Servicer Error and Omissions Insurance Policy.
SECTION 9.3 SUB-SERVICERS. The Special Servicer shall have the right to
use a Sub-Servicer on the same terms and conditions as those set forth in
Section 8.4 for a Sub-Servicer of the Master Servicer. The Special Servicer
shall notify the Master Servicer, Trustee and solely as it relates to any A/B
Mortgage Loan, to the holder of the related B Note, of the appointment of any
Sub-Servicer of the Special Servicer.
SECTION 9.4 SPECIAL SERVICER GENERAL POWERS AND DUTIES.
(a) Subject to the other terms and provisions of this Agreement, the
Special Servicer is hereby authorized and empowered when the Special Servicer
believes it appropriate in accordance with the Servicing Standard, to take any
and all the actions with respect to Specially Serviced Mortgage Loans which the
Master Servicer may perform as set forth in Section 8.3(a), including (i) to
execute and deliver, on behalf of itself or the Trust (or holder of a B Note, as
applicable), any and all instruments of satisfaction or cancellation, or of
partial or full release or discharge and all other comparable instruments, with
respect to the Specially Serviced Mortgage Loans and with respect to the related
REO Properties and (ii) to effectuate foreclosure or other conversion of the
ownership of any REO Property securing a Mortgage Loan. The Trustee shall
execute on the Closing Date a Power of Attorney in the form of Exhibit S-2
hereto and shall furnish the Special Servicer from time to time, upon request,
with any additional powers of attorney of the Trust, empowering the Special
Servicer to take such actions as it determines to be reasonably necessary to
comply with its servicing, administrative and management duties hereunder, and
the Trustee shall execute and deliver or cause to be executed and delivered such
other documents as a Special Servicing Officer may request, that are necessary
or appropriate to enable the Special Servicer to service, administer and manage
the Specially Serviced Mortgage Loans and carry out its duties hereunder, in
each case as the Special Servicer determines is in accordance with the Servicing
Standard and the terms of this Agreement; provided, that, prior to initiating
any proceedings in any court of law or equity (but not defending any proceedings
in any court of law or equity) or instituting any proceeding to foreclose on any
Mortgaged Property in the name of the Trust in any state, the Special Servicer
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shall notify the Trustee in writing and not institute or initiate any such
proceedings for a period of five Business Days from the date of its delivery of
such notice to the Trustee, unless the Special Servicer reasonably believes that
such action should be taken in less than five Business Days to preserve the
property of the Trust for the benefit of Certificateholders, and the Trustee may
within five Business Days of its receipt of such notice advise the Special
Servicer that it has received an Opinion of Counsel (the cost of which shall be
an expense of the Trust) from an attorney duly licensed to practice law in the
state where the related Mortgaged Property or REO Property is located, that it
is likely that the laws of the state in which said action is to be taken either
prohibit such action if taken in the name of the Trust or that the Trust would
be adversely affected under the "doing business" or tax laws of such state if
such action is taken in its name; provided, further, that the Special Servicer
shall not be liable to the extent that it relies on the advice provided in such
Opinion of Counsel. Upon receipt of any such advice from the Trustee, the
Special Servicer shall take such action in the name of such Person or Persons,
in trust for the Trust (or holder of a B Note, if applicable), as shall be
consistent with the Opinion of Counsel obtained by the Trustee. Such Person or
Persons shall acknowledge in writing that such action is being taken by the
Special Servicer in the name of the Trust (or holder of a B Note, if
applicable). In the performance of its duties hereunder, the Special Servicer
shall be an independent contractor and shall not, except in those instances
where it is, after notice to the Trustee as provided above, taking action in the
name of the Trust (or holder of a B Note, if applicable), be deemed to be the
agent of the Trust (or holder of a B Note, as applicable). The Special Servicer
shall indemnify the Trustee for any loss, liability or reasonable expense
(including attorneys' fees) incurred by the Trustee or any director, officer,
employee, agent or Controlling Person of it or its affiliates in connection with
any negligent or intentional misuse of the foregoing powers of attorney
furnished to the Special Servicer by the Trustee. Such indemnification shall
survive the resignation or termination of the Special Servicer hereunder, the
resignation or termination of the Trustee and the termination of this Agreement.
The Special Servicer shall not have any responsibility or liability for any act
or omission of the Trustee, the Master Servicer or the Depositor that is not
attributable to the failure of the Special Servicer to perform its obligations
hereunder. The Special Servicer may conclusively rely on any advice of counsel
rendered in a Nondisqualification Opinion.
(b) In servicing and administering the Specially Serviced Mortgage
Loans and managing any related REO Properties, the Special Servicer shall employ
procedures consistent with the Servicing Standard. The Special Servicer shall
conduct, or cause to be conducted, inspections, at its own expense, of the
Mortgaged Properties relating to Specially Serviced Mortgage Loans at such times
and in such manner as shall be consistent with the Servicing Standard; provided,
that the Special Servicer shall conduct, or cause to be conducted, inspections
of the Mortgaged Properties relating to Specially Serviced Mortgage Loans at
least once during each twelve-month period that ends on June 30 of any calendar
year (commencing with the twelve-month period ending June 30, 2002); provided
further that the Special Servicer shall, at the expense of the Trust, inspect or
cause to be inspected each Mortgaged Property related to a Mortgage Loan that is
delinquent for sixty (60) days in the payment of any amounts due under such
Mortgage Loan. The Special Servicer shall provide to the Master Servicer (who
shall provide, solely as it relates to any A/B Mortgage Loan, to the holder of
the related B Note) and the Operating Adviser copies of the Inspection Reports
relating to such inspections as soon as practicable after the completion of any
inspection.
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SECTION 9.5 "DUE-ON-SALE" CLAUSES; ASSIGNMENT AND ASSUMPTION
AGREEMENTS; MODIFICATIONS OF SPECIALLY SERVICED MORTGAGE LOANS;
DUE-ON-ENCUMBRANCE CLAUSES.
Subject to the limitations of Section 12.3, the Special Servicer shall
have the following duties and rights:
(a) If any Specially Serviced Mortgage Loan contains a provision in the
nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Specially Serviced Mortgage Loan shall
(or may at the Mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property, or
(ii) provides that such Specially Serviced Mortgage Loan may
not be assumed without the consent of the related mortgagee in connection with
any such sale or other transfer,
then, the Special Servicer, on behalf of the Trust, shall, after consultation
with the Operating Adviser and in accordance with the REMIC Provisions, take
such actions as it deems to be in the best economic interest of the Trust in
accordance with the Servicing Standard, and may waive or enforce any due-on-sale
clause contained in the related Mortgage Note or Mortgage; provided, however,
that if the Principal Balance of such Mortgage Loan at such time equals or
exceeds 5% of the Aggregate Certificate Balance or is one of the then current
top 10 loans (by Principal Balance) in the pool, then prior to waiving the
effect of such provision, the Special Servicer shall obtain Rating Agency
Confirmation regarding such waiver. In connection with the request for such
consent, the Special Servicer shall prepare and deliver to S&P and Xxxxx'x a
memorandum outlining its analysis and recommendation in accordance with the
Servicing Standard, together with copies of all relevant documentation. The
Special Servicer shall also prepare and provide S&P and Xxxxx'x with such
memorandum and documentation for all transfer, assumption and encumbrance
consents granted for Mortgage Loans below the threshold set forth above, but for
which the Special Servicer's decision will be sufficient and a Rating Agency
Confirmation is not required. As to any Mortgage Loan that is not a Specially
Serviced Mortgage Loan and contains a provision in the nature of a "due-on-sale"
clause, the Special Servicer shall have the rights and duties set forth in
Section 8.7(b). The Special Servicer shall be entitled to 100% of all assumption
fees in connection with Specially Serviced Mortgage Loans.
After notice to the Operating Adviser, the Special Servicer is also
authorized to take or enter into an assignment and assumption agreement from or
with the Person to whom such property has been or is about to be conveyed,
and/or to release the original Mortgagor from liability upon the Specially
Serviced Mortgage Loan and substitute the new Mortgagor as obligor thereon;
provided, that except as otherwise permitted by Section 9.5(c), any such
assignment and assumption or substitution agreement shall contain no terms that
could result in an Adverse REMIC Event. To the extent permitted by law, the
Special Servicer shall enter into an assumption or substitution agreement that
is required under the related Mortgage Loan documents (either as a matter of
right or upon satisfaction of specified conditions) and shall
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otherwise enter into any assumption or substitution agreement only if the credit
status of the prospective new mortgagor and the underwriting of the new
mortgagor is in compliance with the Special Servicer's regular commercial
mortgage origination or servicing standards and criteria. The Special Servicer
shall notify the Master Servicer of any such assignment and assumption or
substitution agreement and the Special Servicer shall forward to the Trustee the
original of such agreement, which original shall be added by the Trustee to the
related Mortgage File and shall, for all purposes, be considered a part of such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof.
(b) In connection with any assignment and assumption of a Specially
Serviced Mortgage Loan, in no event shall the Special Servicer consent to the
creation of any lien on a Mortgaged Property that is senior to, or on a parity
with, the lien of the related Mortgage. Nothing in this Section 9.5 shall
constitute a waiver of the Trustee's right, as the mortgagee of record, to
receive notice of any assignment and assumption of a Specially Serviced Mortgage
Loan, any sale or other transfer of the related Mortgaged Property or the
creation of any lien or other encumbrance with respect to such Mortgaged
Property.
(c) Subject to the Servicing Standard and Sections 9.39 and 9.40, and
the rights and duties of the Master Servicer under Section 8.18, the Special
Servicer may enter into any modification, waiver or amendment (including,
without limitation, the substitution or release of collateral or the pledge of
additional collateral) of the terms of any Specially Serviced Mortgage Loan,
including any modification, waiver or amendment to (i) reduce the amounts owing
under any Specially Serviced Mortgage Loan by forgiving principal, accrued
interest and/or any Prepayment Premium, (ii) reduce the amount of the Scheduled
Payment on any Specially Serviced Mortgage Loan, including by way of a reduction
in the related Mortgage Rate, (iii) forbear in the enforcement of any right
granted under any Mortgage Note or Mortgage relating to a Specially Serviced
Mortgage Loan, (iv) extend the Maturity Date of any Specially Serviced Mortgage
Loan and/or (v) accept a principal prepayment on any Specially Serviced Mortgage
Loan during any period during which voluntary Principal Prepayments are
prohibited, provided, in the case of any such modification, waiver or amendment,
that (A) the related Mortgagor is in default with respect to the Specially
Serviced Mortgage Loan or, in the reasonable judgment of the Special Servicer,
such default is reasonably foreseeable, (B) in the reasonable judgment of the
Special Servicer, such modification, waiver or amendment would increase the
recovery on the Specially Serviced Mortgage Loan to Certificateholders on a net
present value basis (the relevant discounting of amounts that will be
distributable to Certificateholders to be performed at related Mortgage Rate),
(C) such modification, waiver or amendment would not cause an Adverse REMIC
Event to occur, and (D) if notice to the Operating Adviser of such modification,
waiver or amendment is required pursuant to Section 9.39, the Special Servicer
has made such notice. The Special Servicer, with respect to any B Note that is a
Specially Serviced Mortgage Loan, shall notify the holder of the B Note of any
modification of the monthly payments of an A/B Mortgage Loan and such monthly
payments shall be allocated in accordance with the related Intercreditor
Agreement.
In no event, however, shall the Special Servicer (i) extend the
Maturity Date of a Specially Serviced Mortgage Loan beyond a date that is two
years prior to the Rated Final Distribution Date or (ii) if the Specially
Serviced Mortgage Loan is secured by a ground lease, extend the Maturity Date of
such Specially Serviced Mortgage Loan unless the Special Servicer
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gives due consideration to the remaining term of such ground lease. The Special
Servicer shall not extend the Maturity Date of any Mortgage Loan secured by a
Mortgaged Property covered by a group secured creditor impaired property
environmental insurance policy for more than five years beyond such Mortgage
Loan's Maturity Date unless a new Phase I Environmental Report indicates that
there is no environmental condition or the Mortgagor obtains, at its expense, an
extension of such policy on the same terms and conditions to cover the period
through five years past the extended Maturity Date, provided that, (i) if such
Mortgage Loan is secured by a ground lease, the Special Servicer shall give due
consideration to the remaining term of the ground lease and (ii) in no case
shall the Maturity Date of any such Mortgage Loan be extended past a date that
is two years prior to the Rated Final Distribution Date.
The determination of the Special Servicer contemplated by clause (B) of
the proviso to the first paragraph of this Section 9.5(c) shall be evidenced by
an Officer's Certificate certifying the information in the proviso to the first
paragraph under this subsection (c).
(d) In the event the Special Servicer intends to permit a Mortgagor to
substitute collateral for all or any portion of a Mortgaged Property pursuant to
Section 9.5(c) or pledge additional collateral for the Mortgage Loan pursuant to
Section 9.5(c), if the security interest of the Trust or the holder of any B
Note in such collateral would be perfected by possession, or if such collateral
requires special care or protection, then prior to agreeing to such substitution
or addition of collateral, the Special Servicer shall make arrangements for such
possession, care or protection, and prior to agreeing to such substitution or
addition of collateral (or such arrangement for possession, care or protection)
shall obtain the prior written consent of the Trustee with respect thereto
(which consent shall not be unreasonably withheld, delayed or conditioned);
provided, however, that the Trustee shall not be required (but has the option)
to consent to any substitution or addition of collateral or to hold any such
collateral which will require the Trustee to undertake any additional duties or
obligations or incur any additional expense. Notwithstanding the foregoing, the
Special Servicer will not permit a Mortgagor to substitute collateral for any
portion of the Mortgaged Property pursuant to Section 9.5(c) unless it shall
have received a Rating Agency Confirmation in connection therewith, the costs of
which to be payable by the related Mortgagor to the extent provided for in the
Mortgage Loan documents. If the Mortgagor is not required to pay for the Rating
Agency Confirmation, then such expense will be paid by the Trust. The parties
hereto acknowledge that if the Trust incurs any Additional Trust Expense
associated solely with the release of collateral that is not required to be paid
by a Mortgagor pursuant to the related Mortgage Loan documents (and such
Additional Trust Expense is not paid by the Mortgagor), including, but not
limited to, rating agency fees, then the sole obligation of the related Seller
shall be to pay an amount equal to such expense to the extent the related
Mortgagor is not required to pay them. Promptly upon receipt of notice of such
unpaid expense, regarding a Specially Serviced Mortgage Loan, the Special
Servicer shall request the related Seller to make such payment by deposit to the
Certificate Account.
(e) The Special Servicer will promptly deliver to the Master Servicer,
the Operating Adviser, the Trustee, the Paying Agent and the Rating Agencies a
notice, specifying any such assignments and assumptions, modifications, waivers
or amendments, such notice identifying the affected Specially Serviced Mortgage
Loan. Such notice shall set forth the reasons for such waiver, modification, or
amendment (including, but not limited to, information
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such as related income and expense statements, rent rolls, occupancy status,
property inspections, and an internal or external appraisal performed in
accordance with MAI standards and methodologies (and, if done externally, the
cost of such appraisal shall be recoverable as a Servicing Advance subject to
the provisions of Section 4.4 hereof)). The Special Servicer shall also deliver
to the Trustee (or the Custodian), for deposit in the related Mortgage File, an
original counterpart of the agreement relating to such modification, waiver or
amendment promptly following the execution thereof.
(f) No fee described in this Section shall be collected by the Special
Servicer from the Mortgagor (or on behalf of the Mortgagor) in conjunction with
any consent or any modification, waiver or amendment of the Mortgage Loan if the
collection of such fee would cause such consent, modification, waiver or
amendment to be a "significant modification" of the Mortgage Note within the
meaning of Treasury Regulationss.1.860G-2(b). Subject to the foregoing, the
Special Servicer shall use its reasonable efforts, in accordance with the
Servicing Standard, to collect any modification fees and other expenses
connected with a permitted modification of a Mortgage Loan from the Mortgagor.
The inability of the Mortgagor to pay any costs and expenses of a proposed
modification shall not impair the right of the Special Servicer, the Master
Servicer or the Trustee to be reimbursed by the Trust for such expenses
(including any cost and expense associated with the Opinion of Counsel referred
to in this Section).
(g) The Special Servicer shall cooperate with the Master Servicer (as
provided in Section 8.7) in connection with assignments and assumptions of
Mortgage Loans that are not Specially Serviced Mortgage Loans, and shall be
entitled to receive 50% of any assumption fee paid by the related Mortgagor in
connection with an assignment and assumption executed pursuant to Section 8.7(a)
and 50% of any assumption fee paid by the related Mortgagor in connection with
an assignment and assumption executed pursuant to Section 8.7(b). The Special
Servicer shall be entitled to 100% of any assumption fee received in connection
with a Specially Serviced Mortgage Loan.
(h) Notwithstanding anything herein to the contrary, (i) the Special
Servicer shall not have any right or obligation to consult with or to seek
and/or obtain consent or approval from the Operating Adviser prior to acting,
and provisions of this Agreement requiring such shall be of no effect, if the
Operating Adviser resigns or is removed, during the period following such
resignation or removal until a replacement is elected and (ii) no advice,
direction or objection from or by the Operating Adviser, as contemplated by this
Agreement, may (and the Special Servicer shall ignore and act without regard to
any such advice, direction or objection that the Special Servicer has
determined, in its reasonable good faith judgment would) (A) require or cause
the Special Servicer to violate applicable law, the terms of any Mortgage Loan,
any provision of this Agreement or the REMIC Provisions, including the Special
Servicer's obligation to act in accordance with the Servicing Standard, (B)
result in an Adverse REMIC Event with respect to any REMIC Pool, (C) expose the
Trust, the Depositor, the Master Servicer, the Special Servicer, the Fiscal
Agent, the Paying Agent or the Trustee, or any of their respective Affiliates,
officers, directors, employees or agents, to any material claim, suit or
liability, or (D) materially expand the scope of the Special Servicer's
responsibilities under this Agreement.
(i) If any Specially Serviced Mortgage Loan which contains a provision
in the nature of a "due-on-encumbrance" clause, which by its terms:
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(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any additional
lien or other encumbrance on the related Mortgaged Property; or
(ii) requires the consent of the mortgagee to the creation of
any such additional lien or other encumbrance on the related Mortgaged Property,
then, for so long as such Mortgage Loan is included in the Trust, the Special
Servicer, on behalf of the Trustee as the mortgagee of record, shall exercise
(or, subject to Section 9.5, waive its right to exercise) any right it may have
with respect to such Mortgage Loan (x) to accelerate the payments thereon, or
(y) to withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standard. Prior to
waiving the effect of such provision with respect to a Mortgage Loan, the
Special Servicer shall obtain Rating Agency Confirmation regarding such waiver.
SECTION 9.6 RELEASE OF MORTGAGE FILES.
(a) Upon becoming aware of the payment in full of any Specially
Serviced Mortgage Loan, or the receipt by the Special Servicer of a notification
that payment in full will be escrowed in a manner customary for such purposes,
or the complete defeasance of a Mortgage Loan, the Special Servicer will
immediately notify the Master Servicer. The Special Servicer shall determine, in
accordance with the Servicing Standard, whether an instrument of satisfaction
shall be delivered and, if the Special Servicer determines that such instrument
should be delivered, the Special Servicer shall deliver written approval of such
delivery to the Master Servicer.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Specially Serviced Mortgage Loan or the management of the
related REO Property and in accordance with the Servicing Standard, the Trustee
shall execute or cause to be executed such documents as shall be prepared and
furnished to the Trustee by a Special Servicing Officer (in form reasonably
acceptable to the Trustee) and as are necessary for such purposes. The Trustee
or Custodian shall, upon request of the Special Servicer and delivery to the
Trustee or Custodian of a request for release signed by a Special Servicing
Officer substantially in the form of Exhibit C, release the related Mortgage
File to the Special Servicer. After the transfer of servicing with respect to
any Specially Serviced Mortgage Loan to the Special Servicer, in accordance with
the Servicing Standard, the Master Servicer shall notify, in writing, the
Mortgagor under each Specially Serviced Mortgage Loan transferred to the Special
Servicer, of such transfer.
(c) The Special Servicer shall send notification in writing, to the
Master Servicer to request any documents and instruments in the possession of
the Master Servicer related to any Specially Serviced Mortgage Loan.
(d) The Special Servicer shall, with respect to any Rehabilitated
Mortgage Loan, release to the Master Servicer all documents and instruments in
the possession of the Special Servicer related to such Rehabilitated Mortgage
Loan. Prior to the transfer of servicing with respect to any Rehabilitated
Mortgage Loan to the Master Servicer in accordance with the
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Servicing Standard, the Special Servicer shall notify, in writing, each
Mortgagor under each Rehabilitated Mortgage Loan of such transfer.
SECTION 9.7 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF SPECIAL
SERVICER TO BE HELD FOR THE TRUSTEE.
(a) The Special Servicer shall transmit to the Trustee or Custodian
such documents and instruments coming into the possession of the Special
Servicer as from time to time are required by the terms hereof to be delivered
to the Trustee. Any funds received by the Special Servicer in respect of any
Specially Serviced Mortgage Loan or any REO Property or which otherwise are
collected by the Special Servicer as Liquidation Proceeds, Condemnation Proceeds
or Insurance Proceeds in respect of any Specially Serviced Mortgage Loan or any
REO Property shall be transmitted to the Master Servicer within one Business Day
of receipt to the Certificate Account, except that if such amounts relate to REO
Income, they shall be deposited in the REO Account. The Special Servicer shall
provide access to information and documentation regarding the Specially Serviced
Mortgage Loans to the Trustee, the Master Servicer, the Fiscal Agent, the Paying
Agent, the Operating Adviser and their respective agents and accountants at any
time upon reasonable written request and during normal business hours, provided
that the Special Servicer shall not be required to take any action or provide
any information that the Special Servicer determines will result in any material
cost or expense to which it is not entitled to reimbursement hereunder or will
result in any material liability for which it is not indemnified hereunder;
provided further that the Trustee and the Paying Agent shall be entitled to
receive from the Special Servicer all such information as the Trustee and the
Paying Agent shall reasonably require to perform their respective duties
hereunder. In fulfilling such a request, the Special Servicer shall not be
responsible for determining whether such information is sufficient for the
Trustee's, the Master Servicer's, the Fiscal Agent's, the Paying Agent's or the
Operating Adviser's purposes.
(b) The Special Servicer hereby acknowledges that the Trust (and/or the
holder of the related B Note, if an A/B Mortgage Loan is involved) owns the
Specially Serviced Mortgage Loans and all Mortgage Files representing such
Specially Serviced Mortgage Loans and all funds now or hereafter held by, or
under the control of, the Special Servicer that are collected by the Special
Servicer in connection with the Specially Serviced Mortgage Loans (but excluding
any Special Servicer Compensation and all other amounts to which the Special
Servicer is entitled hereunder); and the Special Servicer agrees that all
documents or instruments constituting part of the Mortgage Files, and such funds
relating to the Specially Serviced Mortgage Loans which come into the possession
or custody of, or which are subject to the control of, the Special Servicer,
shall be held by the Special Servicer for and on behalf of the Trust (or the
holder of the related B Note, if an A/B Mortgage Loan is involved).
(c) The Special Servicer also agrees that it shall not create, incur or
subject any Specially Serviced Mortgage Loans, or any funds that are required to
be deposited in any REO Account to any claim, lien, security interest, judgment,
levy, writ of attachment or other encumbrance, nor assert by legal action or
otherwise any claim or right of setoff against any Specially Serviced Mortgage
Loan or any funds, collected on, or in connection with, a Specially Serviced
Mortgage Loan.
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SECTION 9.8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SPECIAL
SERVICER.
(a) The Special Servicer hereby represents and warrants to and
covenants with the Trustee, as of the Closing Date:
(i) the Special Servicer is duly organized, validly existing
and in good standing as a corporation under the laws of the State of California,
and shall be in compliance with the laws of each State in which any Mortgaged
Property (including any REO Property) which is, or is related to a Specially
Serviced Mortgage Loan is located to the extent necessary to perform its
obligations under this Agreement, except where the failure to so qualify or
comply would not adversely affect the Special Servicer's ability to perform its
obligations hereunder in accordance with the terms of this Agreement;
(ii) the Special Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all transactions and
obligations contemplated by this Agreement. The Special Servicer has duly and
validly authorized the execution, delivery and performance of this Agreement and
this Agreement has been duly executed and delivered by the Special Servicer; and
this Agreement, assuming the due authorization, execution and delivery thereof
by the Depositor, the Trustee, the Fiscal Agent, the Paying Agent and the Master
Servicer, evidences the valid and binding obligation of the Special Servicer
enforceable against the Special Servicer in accordance with its terms subject,
as to enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, receivership and other similar laws affecting creditors'
rights generally as from time to time in effect, and to general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law);
(iii) the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement will not (1) result
in a breach of any term or provision of its charter or by-laws or (2) conflict
with, result in a breach, violation or acceleration of, or result in a default
under, the terms of any other material agreement or instrument to which it is a
party or by which it may be bound, or any law, governmental rule, regulation, or
judgment, decree or order applicable to it of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which
materially and adversely affects its ability to perform its obligations under
this Agreement;
(iv) no litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against it, the outcome of which, in the
Special Servicer's reasonable judgment, could reasonably be expected to
materially and adversely affect the execution, delivery or enforceability of
this Agreement or its ability to service the Mortgage Loans or to perform any of
its other obligations hereunder in accordance with the terms hereof; and
(v) no consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery and
performance by it of, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated
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hereby, or if any such consent, approval, authorization or order is required, it
has obtained the same or will obtain the same prior to the time necessary to
perform its obligations under this Agreement, and, except to the extent in the
case of performance, that its failure to be qualified as a foreign corporation
or licensed in one or more states is not necessary for the performance by it of
its obligations hereunder.
(b) It is understood that the representations and warranties set forth
in this Section 9.8 shall survive the execution and delivery of this Agreement.
(c) Any cause of action against the Special Servicer arising out of the
breach of any representations and warranties made in this Section shall accrue
upon the giving of written notice to the Special Servicer by any of the Trustee,
the Master Servicer, the Paying Agent or the Fiscal Agent. The Special Servicer
shall give prompt notice to the Trustee, the Fiscal Agent, the Paying Agent, the
Depositor, the Operating Adviser and the Master Servicer of the occurrence, or
the failure to occur, of any event that, with notice, or the passage of time or
both, would cause any representation or warranty in this Section to be untrue or
inaccurate in any respect.
SECTION 9.9 STANDARD HAZARD, FLOOD AND COMPREHENSIVE GENERAL LIABILITY
INSURANCE POLICIES.
(a) For all REO Property, the Special Servicer shall use reasonable
efforts, consistent with the Servicing Standard, to maintain with a Qualified
Insurer a Standard Hazard Insurance Policy which does not provide for reduction
due to depreciation in an amount which is not less than the full replacement
cost of the improvements of such REO Property or in an amount not less than the
unpaid Principal Balance plus all unpaid interest and the cumulative amount of
Servicing Advances (plus Advance Interest) made with respect to such Mortgage
Loan, whichever is less, but, in any event, in an amount sufficient to avoid the
application of any co-insurance clause. If the improvements to the Mortgaged
Property are in an area identified in the Federal Register by the Federal
Emergency Management Agency as having special flood hazards (and such flood
insurance has been made available), the Special Servicer shall maintain a flood
insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration in an amount representing coverage equal to the
lesser of the then outstanding Principal Balance of the Specially Serviced
Mortgage Loan and unpaid Advances (plus Advance Interest) and the maximum
insurance coverage required under such current guidelines. It is understood and
agreed that the Special Servicer has no obligation to obtain earthquake or other
additional insurance on REO Property, except as required by law and,
nevertheless, at its sole option and at the Trust's expense, it (if required at
origination and is available at commercially reasonable rates) may obtain such
earthquake insurance. The Special Servicer shall use its reasonable efforts,
consistent with the Servicing Standard, to obtain a comprehensive general
liability insurance policy for all REO Properties. The Special Servicer shall,
to the extent available at commercially reasonable rates (as determined by the
Special Servicer in accordance with the Servicing Standard) and to the extent
consistent with the Servicing Standard, use its reasonable efforts to maintain a
Rent Loss Policy covering revenues for a period of at least twelve months and a
comprehensive general liability policy with coverage comparable to prudent
lending requirements in an amount not less than $1 million per
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occurrence. All applicable policies required to be maintained by the Special
Servicer pursuant to this Section 9.9(a) shall name the Trustee as loss payee
and be endorsed with a standard mortgagee clause. The costs of such insurance
shall be a Servicing Advance, subject to the provisions of Section 4.4 hereof.
(b) Any amounts collected by the Special Servicer under any insurance
policies maintained pursuant to this Section 9.9 (other than amounts to be
applied to the restoration or repair of the REO Property) shall be deposited
into the applicable REO Account. Any cost incurred in maintaining the insurance
required hereby for any REO Property shall be a Servicing Advance, subject to
the provisions of Section 4.4 hereof.
(c) Notwithstanding the above, the Special Servicer shall not be
required in any event to maintain or obtain insurance coverage beyond what is
reasonably available at a cost customarily acceptable and consistent with the
Servicing Standard. The Special Servicer shall notify the Trustee of any such
determination.
The Special Servicer shall conclusively be deemed to have satisfied its
obligations as set forth in this Section 9.9 either (i) if the Special Servicer
shall have obtained and maintained a master force placed or blanket insurance
policy insuring against hazard losses on all of the applicable Mortgage Loans
serviced by it, it being understood and agreed that such policy may contain a
deductible clause on terms substantially equivalent to those commercially
available and maintained by comparable servicers consistent with the Servicing
Standard, and provided that such policy is issued by a Qualified Insurer with a
minimum claims paying ability rating of at least "A-" by S&P and "A2" by Xxxxx'x
or otherwise approved by the Rating Agencies or (ii) if the Special Servicer,
provided that the rating of such Person's long-term debt is not less than "A-"
by S&P and "A2" by Xxxxx'x self-insures for its obligations as set forth in the
first paragraph of this Section 9.9. In the event that the Special Servicer
shall cause any Mortgage Loan to be covered by such a master force placed or
blanket insurance policy, the incremental cost of such insurance allocable to
such Mortgage Loan (i.e., other than any minimum or standby premium payable for
such policy whether or not any Mortgage Loan is then covered thereby), if not
borne by the related Mortgagor, shall be paid by the Special Servicer as a
Servicing Advance, subject to the provisions of Section 4.4 hereof. If such
policy contains a deductible clause, the Special Servicer shall, if there shall
not have been maintained on the related Mortgaged Property a policy complying
with this Section 9.9 and there shall have been a loss that would have been
covered by such policy, deposit in the Certificate Account the amount not
otherwise payable under such master force placed or blanket insurance policy
because of such deductible clause to the extent that such deductible exceeds (i)
the deductible under the related Mortgage Loan or (ii) if there is no deductible
limitation required under the Mortgage Loan, the deductible amount with respect
to insurance policies generally available on properties similar to the related
Mortgaged Property which is consistent with the Servicing Standard, and deliver
to the Trustee an Officer's Certificate describing the calculation of such
amount. In connection with its activities as administrator and servicer of the
Mortgage Loans, the Special Servicer agrees to present, on its behalf and on
behalf of the Trustee, claims under any such master force placed or blanket
insurance policy.
SECTION 9.10 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS. The
Special Servicer will prepare and present or cause to be prepared and presented
on behalf of the Trustee
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all claims under the Insurance Policies with respect to REO Property, and take
such actions (including the negotiation, settlement, compromise or enforcement
of the insured's claim) as shall be necessary to recover under such policies.
Any proceeds disbursed to the Special Servicer in respect of such policies shall
be promptly remitted to the Certificate Account, upon receipt, except for any
amounts realized that are to be applied to the repair or restoration of the
applicable REO Property in accordance with the Servicing Standard. Any
extraordinary expenses (but not ordinary and routine or anticipated expenses)
incurred by the Special Servicer in fulfilling its obligations under this
Section 9.10 shall be paid by the Trust.
SECTION 9.11 COMPENSATION TO THE SPECIAL SERVICER.
(a) As compensation for its activities hereunder, the Special Servicer
shall be entitled to (i) the Special Servicing Fee, (ii) the Liquidation Fee and
(iii) the Work-Out Fee. Such amounts, if any, collected by the Special Servicer
from the related Mortgagor shall be transferred by the Special Servicer to the
Master Servicer within one Business Day of receipt thereof, and deposited by the
Master Servicer in the Certificate Account. The Special Servicer shall be
entitled to receive a Liquidation Fee from the Liquidation Proceeds received in
connection with a final disposition of a Specially Serviced Mortgage Loan or REO
Property (whether arising pursuant to a sale, condemnation or otherwise). With
respect to each REO Mortgage Loan that is a successor to a Mortgage Loan secured
by two or more Mortgaged Properties, the reference to "REO Property" in the
preceding sentence shall be construed on a property-by-property basis to refer
separately to the acquired real property that is a successor to each of such
Mortgaged Properties, thereby entitling the Special Servicer to a Liquidation
Fee from the Liquidation Proceeds received in connection with a final
disposition of, and Condemnation Proceeds received in connection with, each such
acquired property as the Liquidation Proceeds related to that property are
received. The Special Servicer shall also be entitled to additional special
servicing compensation of an amount equal to the excess, if any, of the
aggregate Prepayment Interest Excess relating to Mortgage Loans which are
Specially Serviced Mortgage Loans which have received voluntary Principal
Prepayments not from Liquidation Proceeds or from modifications of Specially
Serviced Mortgage Loans for each Distribution Date over the aggregate Prepayment
Interest Shortfalls for such Mortgage Loans for such Distribution Date. If the
Special Servicer resigns or is terminated for any reason, it shall retain the
right to receive any Work-Out Fees payable on Mortgage Loans that became
Rehabilitated Mortgage Loans while it acted as Special Servicer and remained
Rehabilitated Mortgage Loans at the time of such resignation or termination for
so long as such Mortgage Loan remains a Rehabilitated Mortgage Loan.
(b) The Special Servicer shall be entitled to cause the Master Servicer
to withdraw (i) from the Certificate Account, the Special Servicer Compensation
in respect of each Mortgage Loan (but not a B Note) and (ii) from any A/B Loan
Custodial Account, the Special Servicer Compensation to the extent related
solely to the related B Note, in the time and manner set forth in Section 5.2 of
this Agreement. The Special Servicer shall be required to pay all expenses
incurred by it in connection with its servicing activities hereunder and shall
not be entitled to reimbursement therefor except as expressly provided in this
Agreement.
(c) Additional Special Servicer Compensation in the form of net
interest or income on any REO Account, assumption fees, extension fees,
servicing fees, Modification Fees,
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forbearance fees, Late Fees and default interest (net of amounts used to pay
Advance Interest) or other usual and customary charges and fees actually
received from the Mortgagor in connection with any Specially Serviced Mortgage
Loan shall be retained by the Special Servicer, to the extent not required to be
deposited in the Certificate Account pursuant to the terms of this Agreement.
The Special Servicer shall also be permitted to receive 50% of all assumption
fees collected with respect to Mortgage Loans that are not Specially Serviced
Mortgage Loans as provided in Section 8.7(a) and 100% of all assumption fees
collected with respect to Mortgage Loans that are Specially Serviced Mortgage
Loans as provided in Section 9.5(a). To the extent any component of Special
Servicer Compensation is in respect of amounts usually and customarily paid by
Mortgagors, the Special Servicer shall use reasonable good faith efforts to
collect such amounts from the related Mortgagor, and to the extent so collected,
in full or in part, the Special Servicer shall not be entitled to compensation
for the portion so collected therefor hereunder out of the Trust.
SECTION 9.12 REALIZATION UPON DEFAULTED MORTGAGE LOANS.
(a) The Special Servicer, in accordance with the Servicing Standard and
subject to Section 9.4(a) and Section 9.36, shall use its reasonable efforts to
foreclose upon, repossess or otherwise comparably convert the ownership of
Mortgaged Properties securing such of the Specially Serviced Mortgage Loans as
come into and continue in default and as to which no satisfactory arrangements
can be made for collection of delinquent payments of such Mortgage Loan, the
sale of such Mortgage Loan in accordance with this Agreement or the modification
of such Mortgage Loan in accordance with this Agreement. In connection with such
foreclosure or other conversion of ownership, the Special Servicer shall follow
the Servicing Standard. The foregoing is subject to the proviso that the Special
Servicer shall not request that the Master Servicer make a Servicing Advance for
Liquidation Expenses unless the Special Servicer shall determine, consistent
with the Servicing Standard, (i) that such foreclosure will increase on a net
present value basis the Liquidation Proceeds of the Specially Serviced Mortgage
Loan to the Trust (and the holder of the related B Note if in connection with an
A/B Mortgage Loan, taken as a collective whole) and (ii) that such Liquidation
Expenses will be recoverable from Liquidation Proceeds, and any such Servicing
Advance by the Master Servicer or the Trustee or the Fiscal Agent shall be
subject to the determination(s) of recoverability contemplated by Section 4.4.
(b) The Special Servicer shall not acquire any personal property
relating to any Specially Serviced Mortgage Loan pursuant hereto unless either:
(i) such personal property is incidental to real property
(within the meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have received a
Nondisqualification Opinion (the cost of which shall be reimbursed by the Trust)
to the effect that the holding of such personal property by any REMIC will not
cause the imposition of a tax on any REMIC Pool under the Code or cause any
REMIC Pool to fail to qualify as a REMIC.
(c) Notwithstanding anything to the contrary in this Agreement, the
Special Servicer shall not, on behalf of the Trust, obtain title to a Mortgaged
Property as a result of or in
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lieu of foreclosure or otherwise, and shall not otherwise acquire possession of,
or take any other action with respect to, any Mortgaged Property, if, as a
result of any such action the Trust would be considered to hold title to, to be
a "mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA, or any applicable comparable
federal, state or local law, or a "discharger" or "responsible party"
thereunder, unless the Special Servicer has also previously determined in
accordance with the Servicing Standard, based on a Phase I Environmental Report
prepared by a Person (who may be an employee or affiliate of the Master Servicer
or the Special Servicer) who regularly conducts environmental site assessments
in accordance with the standards of FNMA in the case of multi-family mortgage
loans and customary servicing practices in the case of commercial loans for
environmental assessments, which report shall be delivered to the Trustee, that:
(i) such Mortgaged Property is in compliance with applicable
Environmental Laws or, if not, after consultation with an environmental expert
that taking such actions as are necessary to bring the Mortgaged Property in
compliance therewith is reasonably likely to produce a greater recovery on a net
present value basis than not taking such actions;
(ii) taking such actions as are necessary to bring the
Mortgaged Property in compliance with applicable Environmental Laws is
reasonably likely to produce a greater recovery on a net present value basis
than pursuing a claim under the Environmental Insurance Policy; and
(iii) there are no circumstances or conditions present or
threatened at such Mortgaged Property relating to the use, management, disposal
or release of any hazardous substances, hazardous materials, hazardous wastes,
or petroleum-based materials for which investigation, testing, monitoring,
removal, clean-up or remediation could be required under any federal, state or
local law or regulation, or that, if any such materials are present for which
such action could be required, after consultation with an environmental expert
taking such actions with respect to the affected Mortgaged Property is
reasonably likely to produce a greater recovery on a net present value basis
than not taking such actions (after taking into account the projected costs of
such actions); provided, however, that such compliance pursuant to clause (i)
and (ii) above or the taking of such action pursuant to this clause (iii) shall
only be required to the extent that the cost thereof is a Servicing Advance of
the Master Servicer pursuant to this Agreement, subject to the provisions of
Section 4.4 hereof.
(d) The cost of the Phase I Environmental Report contemplated by
Section 9.12(c) may be treated as a Liquidation Expense, or in the event the
related Specially Serviced Mortgage Loan is not liquidated and a Final Recovery
Determination has been made with respect to such Specially Serviced Mortgage
Loan, the Master Servicer shall treat such cost as a Servicing Advance subject
to the provisions of Section 4.4 hereof; provided that, in the latter event, the
Special Servicer shall use its good faith reasonable business efforts to recover
such cost from the Mortgagor in connection with the curing of the default under
the Specially Serviced Mortgage Loan.
(e) If the Special Servicer determines, pursuant to Section 9.12(c),
that taking such actions as are necessary to bring any Mortgaged Property into
compliance with applicable Environmental Laws, or taking such actions with
respect to the containment, removal, clean-up
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or remediation of hazardous substances, hazardous materials, hazardous wastes,
or petroleum-based materials affecting any such Mortgaged Property, is not
reasonably likely to produce a greater recovery on a net present value basis
than not taking such actions (after taking into account the projected costs of
such actions) or than not pursuing a claim under the Environmental Insurance
Policy, then the Special Servicer shall take such action as it deems to be in
the best economic interest of the Trust (and the holder of the related B Note if
in connection with an A/B Mortgage Loan, taken as a collective whole),
including, without limitation, releasing the lien of the related Mortgage. If
the Special Servicer determines that a material possibility exists that
Liquidation Expenses with respect to Mortgaged Property (taking into account the
cost of bringing it into compliance with applicable Environmental Laws) would
exceed the Principal Balance of the related Mortgage Loan, the Special Servicer
shall not attempt to bring such Mortgaged Property into compliance and shall not
acquire title to such Mortgaged Property unless it has received the written
consent of the Trustee to such action.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of maintaining any
action with respect to any Specially Serviced Mortgage Loan, including, without
limitation, any action to obtain a deficiency judgment with respect to any
Specially Serviced Mortgage Loan.
SECTION 9.13 FORECLOSURE. In the event that the Trust obtains, through
foreclosure on a Mortgage or otherwise, the right to receive title to a
Mortgaged Property, the Special Servicer, as its agent, shall direct the
appropriate party to deliver title to the REO Property to the Trustee or its
nominee.
The Special Servicer may consult with counsel to determine when an
Acquisition Date shall be deemed to occur under the REMIC Provisions with
respect to the Mortgaged Property, the expense of such consultation being
treated as a Servicing Advance related to the foreclosure, subject to the
provisions of Section 4.4 hereof. The Special Servicer, on behalf of the Trust
(and the holder of the related B Note if in connection with an A/B Mortgage
Loan), shall sell the REO Property expeditiously, but in any event within the
time period, and subject to the conditions, set forth in Section 9.15. Subject
to Section 9.15, the Special Servicer shall manage, conserve, protect and
operate the REO Property for the holders of beneficial interests in the Trust
(and the holder of the related B Note if in connection with an A/B Mortgage
Loan) solely for the purpose of its prompt disposition and sale.
SECTION 9.14 OPERATION OF REO PROPERTY
(a) The Special Servicer shall segregate and hold all funds collected
and received in connection with the operation of each REO Property separate and
apart from its own funds and general assets and shall establish and maintain
with respect to each REO Property one or more accounts held in trust for the
benefit of the Certificateholders (and the holder of the related B Note if in
connection with an A/B Mortgage Loan) in the name of "LaSalle Bank National
Association, as Trustee for the Holders of Bear Xxxxxxx Commercial Mortgage
Securities Inc. Commercial Mortgage Securities Inc. Commercial Mortgage
Pass-Through Certificates Series 2002-TOP6 and the holder of any B Note as their
interests may appear [name of Property Account]" (each, an "REO Account"), which
shall be an Eligible Account. Amounts in any REO Account shall be invested in
Eligible Investments. The Special Servicer shall
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deposit all funds received with respect to an REO Property in the applicable REO
Account within two days of receipt. The Special Servicer shall account
separately for funds received or expended with respect to each REO Property. All
funds in each REO Account may be invested only in Eligible Investments. The
Special Servicer shall notify the Trustee and the Master Servicer in writing of
the location and account number of each REO Account and shall notify the Trustee
prior to any subsequent change thereof.
(b) On or before each Special Servicer Remittance Date, the Special
Servicer shall withdraw from each REO Account and deposit in the Certificate
Account, the REO Income received or collected during the Collection Period
immediately preceding such Special Servicer Remittance Date on or with respect
to the related REO Properties and reinvestment income thereon; provided,
however, that (i) the Special Servicer may retain in such REO Account such
portion of such proceeds and collections as may be necessary to maintain in the
REO Account sufficient funds for the proper operation, management and
maintenance of the related REO Property, including, without limitation, the
creation of reasonable reserves for repairs, replacements, and necessary capital
improvements and other related expenses. The Special Servicer shall notify the
Master Servicer of all such deposits (and the REO Properties to which the
deposits relate) made into the Certificate Account and (ii) the Special Servicer
shall be entitled to withdraw from the REO Account and pay itself as additional
Special Servicing Compensation any interest or net reinvestment income earned on
funds deposited in the REO Account. The amount of any losses incurred in respect
of any such investments shall be for the account of the Special Servicer which
shall deposit the amount of such loss (to the extent not offset by income from
other investments) in the REO Account, out of its own funds immediately as
realized. If the Special Servicer deposits in any REO Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
the REO Account, any provision herein to the contrary notwithstanding.
(c) If the Trust acquires the Mortgaged Property, the Special Servicer
shall have full power and authority, in consultation with the Operating Adviser,
and subject to the specific requirements and prohibitions of this Agreement and
any applicable consultation rights of the holder of the related B Note relating
to an A/B Mortgage Loan, to do any and all things in connection therewith as are
consistent with the Servicing Standard, subject to the REMIC Provisions, and in
such manner as the Special Servicer deems to be in the best interest of the
Trust (and in the case of any A/B Mortgage Loan, the holder of the related B
Note and the Trust as a collective whole), and, consistent therewith, may
advance from its own funds to pay for the following items (which amounts shall
be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in
accordance with Section 4.6(e)), to the extent such amounts cannot be paid from
REO Income:
(i) all insurance premiums due and payable in respect of such
REO Property;
(ii) all real estate taxes and assessments in respect of such
REO Property that could result or have resulted in the imposition of a lien
thereon; and
(iii) all costs and expenses necessary to maintain, operate,
lease and sell such REO Property (other than capital expenditures).
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(d) The Special Servicer may, and to the extent necessary to (i)
preserve the status of the REO Property as "foreclosure property" under the
REMIC Provisions or (ii) avoid the imposition of a tax on "income from
nonpermitted assets" within the meaning of the REMIC Provisions, shall contract
with any Independent Contractor for the operation and management of the REO
Property, provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith;
(ii) the terms of such contract shall be consistent with the
provisions of Section 856 of the Code and Treasury Regulation Section
1.856-4(b)(5);
(iii) only to the extent consistent with (ii) above, any such
contract shall require, or shall be administered to require, that the
Independent Contractor (A) pay all costs and expenses incurred in connection
with the operation and management of such Mortgaged Property underlying the REO
Property and (B) deposit on a daily basis all amounts payable to the Trust in
accordance with the contract between the Trust and the Independent Contractor in
an Eligible Account;
(iv) none of the provisions of this Section 9.14 relating to
any such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations to the Trustee with respect to the operation and management of any
such REO Property;
(v) if the Independent Contractor is an Affiliate of the
Special Servicer, the consent of the Operating Adviser and a Nondisqualification
Opinion must be obtained; and
(vi) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such REO
Property.
The Special Servicer shall be entitled to enter into any
agreement with any Independent Contractor performing services for the Trust
(and, if applicable, the holder of a B Note) pursuant to this subsection (d) for
indemnification of the Special Servicer by such Independent Contractor, and
nothing in this Agreement shall be deemed to limit or modify such
indemnification. All fees of the Independent Contractor (other than fees paid
for performing services within the ordinary duties of a Special Servicer which
shall be paid by the Special Servicer) shall be paid from the income derived
from the REO Property. To the extent that the income from the REO Property is
insufficient, such fees shall be advanced by the Master Servicer as a Servicing
Advance, subject to the provisions of Section 4.4 and Section 4.6(e) hereof.
(e) Notwithstanding any other provision of this Agreement, the Special
Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust
or the beneficial owners thereof with respect to REO Property which might cause
the REO Property to fail to qualify as "foreclosure property" within the meaning
of Section 860G(a)(8) of the Code (without giving effect to the final sentence
thereof) or result in the receipt by any REMIC of any "income
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from nonpermitted assets" within the meaning of Section 860F(a)(2) of the Code
or any "net income from foreclosure property" which is subject to tax under the
REMIC Provisions unless (i) the Trustee and the Special Servicer have received
an Opinion of Counsel (at the Trust's sole expense) to the effect that, under
the REMIC Provisions and any relevant proposed legislation, any income generated
for REMIC I by the REO Property would not result in the imposition of a tax upon
REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer
determines the income or earnings with respect to such REO Property will offset
any tax under the REMIC Provisions relating to such income or earnings and will
maximize the net recovery from the REO Property to the Certificateholders. The
Special Servicer shall notify the Trustee, the Paying Agent and the Master
Servicer of any election by it to incur such tax, and the Special Servicer (i)
shall hold in escrow in an Eligible Account an amount equal to the tax payable
thereby from revenues collected from the related REO Property, (ii) provide the
Paying Agent with all information for the Paying Agent to file the necessary tax
returns in connection therewith and (iii) upon request from the Paying Agent,
pay from such account to the Paying Agent the amount of the applicable tax. The
Paying Agent shall file the applicable tax returns based on the information
supplied by the Special Servicer and pay the applicable tax from the amounts
collected by the Special Servicer.
Subject to, and without limiting the generality of the foregoing, the
Special Servicer, on behalf of the Trust, shall not:
(i) permit the Trust to enter into, renew or extend any New
Lease with respect to the REO Property, if the New Lease by its terms will give
rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on the REO
Property, other than the completion of a building or other improvement thereon,
and then only if more than ten percent of the construction of such building or
other improvement was completed before default on the Mortgage Loan became
imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, other than through an Independent
Contractor, or allow any other Person to Directly Operate, other than through an
Independent Contractor, the REO Property on any date more than 90 days after the
Acquisition Date; unless, in any such case, the Special Servicer has requested
and received an Opinion of Counsel at the Trust's sole expense to the effect
that such action will not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(without giving effect to the final sentence thereof) at any time that it is
held by the applicable REMIC Pool, in which case the Special Servicer may take
such actions as are specified in such Opinion of Counsel.
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SECTION 9.15 SALE OF REO PROPERTY.
(a) In the event that title to any REO Property is acquired by the
Trust in respect of any Specially Serviced Mortgage Loan, the deed or
certificate of sale shall be issued to the Trust, the Trustee or to its
nominees. The Special Servicer, after notice to the Operating Adviser, shall use
its reasonable best efforts to sell any REO Property as soon as practicable
consistent with the objective of maximizing proceeds for all Certificateholders,
but in no event later than the end of the third calendar year following the end
of the year of its acquisition, and in any event prior to the Rated Final
Distribution Date, unless (i) the Trustee, on behalf of the applicable REMIC
Pool, has been granted an extension of time (an "Extension") (which extension
shall be applied for at least 60 days prior to the expiration of the period
specified above) by the Internal Revenue Service to sell such REO Property (a
copy of which shall be delivered to the Paying Agent upon request), in which
case the Special Servicer shall continue to attempt to sell the REO Property for
its fair market value for such period longer than the period specified above as
such Extension permits or (ii) the Special Servicer seeks and subsequently
receives, at the expense of the Trust, a Nondisqualification Opinion, addressed
to the Trustee and the Special Servicer, to the effect that the holding by the
Trust of such REO Property subsequent to the period specified above after its
acquisition will not result in the imposition of taxes on "prohibited
transactions" of a REMIC, as defined in Section 860F(a)(2) of the Code, or cause
any REMIC to fail to qualify as a REMIC at any time that any Certificates are
outstanding. If the Trustee has not received an Extension or such Opinion of
Counsel and the Special Servicer is not able to sell such REO Property within
the period specified above, or if an Extension has been granted and the Special
Servicer is unable to sell such REO Property within the extended time period,
the Special Servicer shall, after consultation with the Operating Adviser,
before the end of such period or extended period, as the case may be, auction
the REO Property to the highest bidder (which may be the Special Servicer) in
accordance with the Servicing Standard; provided, however, that no Interested
Person shall be permitted to purchase the REO Property at a price less than the
Purchase Price; and provided, further that if the Special Servicer intends to
bid on any REO Property, (i) the Special Servicer shall notify the Trustee of
such intent, (ii) the Trustee shall promptly obtain, at the expense of the Trust
an Appraisal of such REO Property (or internal valuation in accordance with the
procedures specified in Section 6.9) and (iii) the Special Servicer shall not
bid less than the fair market value set forth in such Appraisal. Neither any
Seller nor the Depositor may purchase REO Property at a price in excess of the
fair market value thereof.
(b) Within 30 days of the sale of the REO Property, the Special
Servicer shall provide to the Trustee, the Paying Agent and the Master Servicer
(and the holder of the related B Note, if any, if in connection with an A/B
Mortgage Loan) a statement of accounting for such REO Property, including
without limitation, (i) the Acquisition Date for the REO Property, (ii) the date
of disposition of the REO Property, (iii) the sale price and related selling and
other expenses, (iv) accrued interest (including interest deemed to have
accrued) on the Specially Serviced Mortgage Loan to which the REO Property
related, calculated from the Acquisition Date to the disposition date, (v) final
property operating statements, and (vi) such other information as the Trustee or
the Paying Agent (and the holder of the related B Note if in connection with an
A/B Mortgage Loan) may reasonably request in writing.
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(c) The Liquidation Proceeds from the final disposition of the REO
Property shall be deposited in the Certificate Account within one Business Day
of receipt.
(d) The Special Servicer shall provide the necessary information to the
Master Servicer and the Paying Agent to allow the Master Servicer to prepare,
deliver and file reports of foreclosure and abandonment in accordance with
Section 6050J and Section 6050P, if required, of the Code with respect to such
REO Property and shall deliver such information with respect thereto as the
Master Servicer or the Paying Agent may request in writing.
SECTION 9.16 REALIZATION ON COLLATERAL SECURITY. In connection with the
enforcement of the rights of the Trust to any property securing any Specially
Serviced Mortgage Loan other than the related Mortgaged Property, the Special
Servicer shall consult with counsel to determine how best to enforce such rights
in a manner consistent with the REMIC Provisions and shall not, based on a
Nondisqualification Opinion addressed to the Special Servicer and the Trustee
(the cost of which shall be an expense of the Trust) take any action that could
result in the failure of any REMIC Pool to qualify as a REMIC while any
Certificates are outstanding, unless such action has been approved by a vote of
100% of each Class of Certificateholders (including the Class R-I, Class R-II
and Class R-III Certificateholders).
SECTION 9.17 RESERVED
SECTION 9.18 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE. The
Special Servicer shall deliver to the Paying Agent on or before noon (Eastern
Time) on March 31 of each calendar year (or March 30 if a leap year), commencing
in March 2003, an Officer's Certificate stating, as to the signer thereof, that
(A) a review of the activities of the Special Servicer during the preceding
calendar year or portion thereof and of the performance of the Special Servicer
under this Agreement has been made under such officer's supervision and (B) to
the best of such officer's knowledge, based on such review, the Special Servicer
has fulfilled all its obligations under this Agreement in all material respects
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof. The Special Servicer shall deliver such Officer's
Certificate to the Master Servicer, the Depositor and the Trustee by April 7 of
each calendar year. The Special Servicer shall forward a copy of each such
statement to the Rating Agencies. The Paying Agent shall forward a copy of each
such statement to the Luxembourg Paying Agent.
SECTION 9.19 ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING REPORT. On or
before noon (Eastern Time) on March 31 of each calendar year (or March 30 if a
leap year), beginning with March 2003, the Special Servicer at its expense shall
cause a nationally recognized firm of Independent public accountants (who may
also render other services to the Special Servicer, as applicable) to furnish to
the Paying Agent (in electronic format) a statement to the effect that (a) such
firm has examined certain documents and records relating to the servicing of the
Mortgage Loans under this Agreement or the servicing of mortgage loans similar
to the Mortgage Loans under substantially similar agreements for the preceding
calendar year and (b) the assertion by management of the Special Servicer, that
it maintained an effective internal control system over the servicing of such
mortgage loans is fairly stated in all material respects, based upon established
criteria, which statement meets the standards applicable to accountant's reports
intended for general distribution; provided that each of the Master Servicer
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and the Special Servicer shall not be required to cause the delivery of such
statement until April 15 in any given year so long as it has received written
confirmation from the Depositor that a Report on Form 10-K is not required to be
filed in respect of the Trust Fund for the preceding calendar year. The Special
Servicer shall deliver such statement to the Depositor, each Rating Agency, the
Trustee and, upon request, the Operating Adviser by April 7 of each calendar
year (or by April 30 of each calendar year if the statement is not required to
be delivered until April 15). The Paying Agent shall promptly deliver such
statement to the Luxembourg Paying Agent.
SECTION 9.20 MERGER OR CONSOLIDATION. Any Person into which the Special
Servicer may be merged or consolidated, or any Person resulting from any merger,
conversion, other change in form or consolidation to which the Special Servicer
shall be a party, or any Person succeeding to the business of the Special
Servicer, shall be the successor of the Special Servicer hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided, however, that each of the Rating Agencies provides a
Rating Agency Confirmation. If the conditions to the proviso in the foregoing
sentence are not met, the Trustee may terminate the Special Servicer's servicing
of the Specially Serviced Mortgage Loans pursuant hereto, such termination to be
effected in the manner set forth in Section 9.31.
SECTION 9.21 RESIGNATION OF SPECIAL SERVICER.
(a) Except as otherwise provided in this Section 9.21, the Special
Servicer shall not resign from the obligations and duties hereby imposed on it
unless it determines that the Special Servicer's duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it. Any such
determination permitting the resignation of the Special Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Master
Servicer, the Operating Adviser, and the Trustee. No such resignation shall
become effective until a successor servicer designated by the Operating Adviser
and the Trustee shall have (i) satisfied the requirements that would apply
pursuant to Section 9.20 hereof if a merger of the Special Servicer had
occurred, (ii) assumed the Special Servicer's responsibilities and obligations
under this Agreement and (iii) Rating Agency Confirmation shall have been
obtained. Notice of such resignation shall be given promptly by the Special
Servicer to the Master Servicer and the Trustee.
(b) The Special Servicer may resign from the obligations and duties
hereby imposed on it, upon reasonable notice to the Trustee, provided that (i) a
successor Special Servicer is (x) available, (y) reasonably acceptable to the
Operating Adviser, the Depositor, and the Trustee, and (z) willing to assume the
obligations, responsibilities and covenants to be performed hereunder by the
Special Servicer on substantially the same terms and conditions, and for not
more than equivalent compensation as that herein provided, (ii) the successor
Special Servicer has assets of at least $15,000,000 and (iii) Rating Agency
Confirmation is obtained with respect to such resignation, as evidenced by a
letter from each Rating Agency delivered to the Trustee. Any costs of such
resignation and of obtaining a replacement Special Servicer shall be borne by
the Special Servicer and shall not be an expense of the Trust.
(c) No such resignation under paragraph (b) above shall become
effective unless and until such successor Special Servicer enters into a
servicing agreement with the
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Trustee assuming the obligations and responsibilities of the Special Servicer
hereunder in form and substance reasonably satisfactory to the Trustee.
(d) Upon any resignation of the Special Servicer, it shall retain the
right to receive any and all Work-Out Fees payable in respect of Mortgage Loans
and any B Note that became Rehabilitated Mortgage Loans during the period that
it acted as Special Servicer and that were still Rehabilitated Mortgage Loans at
the time of such resignation (and the successor Special Servicer shall not be
entitled to any portion of such Work-Out Fees), in each case until such time (if
any) as such Mortgage Loan or B Note again becomes a Specially Serviced Mortgage
Loan or are no longer included in the Trust.
SECTION 9.22 ASSIGNMENT OR DELEGATION OF DUTIES BY SPECIAL SERVICER.
The Special Servicer shall have the right without the prior written consent of
the Trustee to (A) delegate or subcontract with or authorize or appoint anyone,
or delegate certain duties to other professionals such as attorneys and
appraisers, as an agent of the Special Servicer or Sub-Servicers (as provided in
Section 9.3) to perform and carry out any duties, covenants or obligations to be
performed and carried out by the Special Servicer hereunder or (B) assign and
delegate all of its duties hereunder. In the case of any such assignment and
delegation in accordance with the requirements of clause (A) of this Section,
the Special Servicer shall not be released from its obligations under this
Agreement. In the case of any such assignment and delegation in accordance with
the requirements of clause (B) of this Section, the Special Servicer shall be
released from its obligations under this Agreement, except that the Special
Servicer shall remain liable for all liabilities and obligations incurred by it
as the Special Servicer hereunder prior to the satisfaction of the following
conditions: (i) the Special Servicer gives the Depositor, the Master Servicer,
the Primary Servicer and the Trustee notice of such assignment and delegation;
(ii) such purchaser or transferee accepting such assignment and delegation
executes and delivers to the Depositor and the Trustee an agreement accepting
such assignment, which contains an assumption by such Person of the rights,
powers, duties, responsibilities, obligations and liabilities of the Special
Servicer, with like effect as if originally named as a party to this Agreement;
(iii) the purchaser or transferee has assets in excess of $15,000,000; (iv) such
assignment and delegation is the subject of a Rating Agency Confirmation; and
(v) the Depositor consents to such assignment and delegation, such consent not
be unreasonably withheld. Notwithstanding the above, the Special Servicer may
appoint Sub-Servicers in accordance with Section 9.3 hereof.
SECTION 9.23 LIMITATION ON LIABILITY OF THE SPECIAL SERVICER AND
OTHERS.
(a) Neither the Special Servicer nor any of the directors, officers,
employees or agents of the Special Servicer shall be under any liability to the
Certificateholders, the holder of any B Note or the Trustee for any action taken
or for refraining from the taking of any action in good faith and using
reasonable business judgment; provided that this provision shall not protect the
Special Servicer or any such person against any breach of a representation or
warranty contained herein or any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in its performance of
duties hereunder or by reason of negligent disregard of obligations and duties
hereunder. The Special Servicer and any director, officer, employee or agent of
the Special Servicer may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person (including,
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without limitation, the information and reports delivered by or at the direction
of the Master Servicer or any director, officer, employee or agent of the Master
Servicer) respecting any matters arising hereunder. The Special Servicer shall
not be under any obligation to appear in, prosecute or defend any legal action
which is not incidental to its duties to service the Specially Serviced Mortgage
Loans in accordance with this Agreement; provided that the Special Servicer may
in its sole discretion undertake any such action which it may reasonably deem
necessary or desirable in order to protect the interests of the
Certificateholders, the holder of any B Note and the Trustee in the Specially
Serviced Mortgage Loans, or shall undertake any such action if instructed to do
so by the Trustee. In such event, all legal expenses and costs of such action
(other than those that are connected with the routine performance by the Special
Servicer of its duties hereunder) shall be expenses and costs of the Trust, and
the Special Servicer shall be entitled to be reimbursed therefor as provided by
Section 5.2 hereof. Notwithstanding any term in this Agreement, the Special
Servicer shall not be relieved from liability to, or entitled to indemnification
from, the Trust for any action taken by it at the direction of the Operating
Adviser which is in conflict with the Servicing Standard.
(b) In addition, the Special Servicer shall have no liability with
respect to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to the Special Servicer and conforming to the requirements of
this Agreement. Neither the Special Servicer, nor any director, officer,
employee, agent or Affiliate, shall be personally liable for any error of
judgment made in good faith by any officer, unless it shall be proved that the
Special Servicer or such officer was negligent in ascertaining the pertinent
facts. Neither the Special Servicer, nor any director, officer, employee, agent
or Affiliate, shall be personally liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement. The Special
Servicer shall be entitled to rely on reports and information supplied to it by
the Master Servicer and the related Mortgagors and shall have no duty to
investigate or confirm the accuracy of any such report or information.
(c) The Special Servicer shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Master Servicer, the Fiscal Agent or Trustee in this Agreement.
The Trust shall indemnify and hold harmless the Special Servicer from any and
all claims, liabilities, costs, charges, fees or other expenses which relate to
or arise from any such breach of representation, warranty or covenant to the
extent such amounts are not recoverable from the party committing such breach.
(d) Except as otherwise specifically provided herein:
(i) the Special Servicer may rely, and shall be protected in
acting or refraining from acting upon, any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other paper
or document believed or in good faith believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(ii) the Special Servicer may consult with counsel, and any
written advice or Opinion of Counsel shall be full and complete authorization
and protection with
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respect to any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(iii) the Special Servicer shall not be personally liable for
any action taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion, rights or powers conferred upon it by
this Agreement; and
(iv) the Special Servicer, in preparing any reports hereunder,
may rely, and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document, agreement,
covenant, notice, request or other paper reasonably believed or in good faith
believed by it to be genuine.
(e) The Special Servicer and any director, officer, employee or agent
of the Special Servicer shall be indemnified by the Master Servicer, the
Trustee, the Paying Agent and the Fiscal Agent, as the case may be, and held
harmless against any loss, liability or expense including reasonable attorneys'
fees incurred in connection with any legal action relating to the Master
Servicer's, the Trustee's, the Paying Agent's or the Fiscal Agent's, as the case
may be, respective willful misfeasance, bad faith or negligence in the
performance of its respective duties hereunder or by reason of negligent
disregard by such Person of its respective duties hereunder, other than any
loss, liability or expense incurred by reason of willful misfeasance, bad faith
or negligence in the performance of any of the Special Servicer's duties
hereunder or by reason of negligent disregard of the Special Servicer's
obligations and duties hereunder. The Special Servicer shall promptly notify the
Master Servicer, the Trustee, the Paying Agent and the Fiscal Agent if a claim
is made by a third party entitling the Special Servicer to indemnification
hereunder, whereupon the Master Servicer, the Trustee or the Paying Agent, in
each case, to the extent the claim was made in connection with its willful
misfeasance, bad faith or negligence, shall assume the defense of any such claim
(with counsel reasonably satisfactory to the Special Servicer). Any failure to
so notify the Master Servicer, the Trustee or the Paying Agent shall not affect
any rights the Special Servicer may have to indemnification hereunder or
otherwise, unless the interest of the Master Servicer, the Trustee or the Paying
Agent is materially prejudiced thereby. The indemnification provided herein
shall survive the termination of this Agreement and the termination or
resignation of the Special Servicer. Such indemnity shall survive the
termination of this Agreement or the resignation or removal of the Special
Servicer hereunder. Any payment hereunder made by the Master Servicer, the
Trustee, the Fiscal Agent or the Paying Agent, as the case may be, pursuant to
this paragraph to the Special Servicer shall be paid from the Master Servicer's,
the Trustee's, Fiscal Agent's or the Paying Agent's, as the case may be, own
funds, without reimbursement from the Trust therefor, except achieved through
subrogation as provided in this Agreement. Any expenses incurred or
indemnification payments made by the Trustee, the Paying Agent, the Fiscal Agent
or the Master Servicer shall be reimbursed by the party so paid, if a court of
competent jurisdiction makes a final judgment that the conduct of the Trustee,
the Paying Agent, the Fiscal Agent or the Master Servicer, as the case may be,
was (x) not culpable or (y) found to not have acted with willful misfeasance,
bad faith or negligence.
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SECTION 9.24 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Special Servicer and any director, officer, employee or agent
of the Special Servicer shall be indemnified by the Trust, and held harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments and any other costs, liabilities, fees and expenses
incurred in connection with any legal action relating to (i) this Agreement, and
(ii) any action taken by the Special Servicer in accordance with the instruction
delivered in writing to the Special Servicer by the Trustee or the Master
Servicer pursuant to any provision of this Agreement in each case and the
Special Servicer and each of its directors, officers, employees and agents shall
be entitled to indemnification from the Trust for any loss, liability or expense
(including attorneys' fees) incurred in connection with the provision by the
Special Servicer of any information included by the Special Servicer in the
report required to be provided by the Special Servicer pursuant to this
Agreement, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of negligent disregard of obligations and duties
hereunder. The Special Servicer shall assume the defense of any such claim (with
counsel reasonably satisfactory to the Special Servicer) and the Trust shall
pay, from amounts on deposit in the Certificate Account pursuant to Section 5.2,
all expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. The indemnification provided herein shall survive
the termination of this Agreement and the termination or resignation of the
Special Servicer. Any expenses incurred or indemnification payments made by the
Trust shall be reimbursed by the Special Servicer, if a court of competent
jurisdiction makes a final, non-appealable judgment that the Special Servicer
was found to have acted with willful misfeasance, bad faith or negligence.
(b) The Special Servicer agrees to indemnify the Trust, and the
Trustee, the Fiscal Agent, the Depositor, the Master Servicer, the Paying Agent
and any director, officer, employee or agent or Controlling Person of the
Trustee, the Fiscal Agent, the Depositor and the Master Servicer, and hold them
harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, liabilities, fees
and expenses that the Trust or the Trustee, the Fiscal Agent, the Depositor, the
Paying Agent or the Master Servicer may sustain arising from or as a result of
the willful misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of negligent disregard of obligations and duties
hereunder by the Special Servicer. The Trustee, the Fiscal Agent, the Depositor,
the Paying Agent or the Master Servicer shall immediately notify the Special
Servicer if a claim is made by a third party with respect to this Agreement or
the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the
Fiscal Agent, the Depositor, the Paying Agent or the Master Servicer, as the
case may be, to indemnification hereunder, whereupon the Special Servicer shall
assume the defense of any such claim (with counsel reasonably satisfactory to
the Trustee, the Fiscal Agent, the Depositor, the Paying Agent or the Master
Servicer, as the case may be) and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or them in respect of such claim. Any
failure to so notify the Special Servicer shall not affect any rights the Trust
or the Trustee, the Fiscal Agent, the Depositor, the Paying Agent or the Master
Servicer may have to indemnification under this Agreement or otherwise, unless
the Special Servicer's defense of such claim is materially prejudiced thereby.
The indemnification
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provided herein shall survive the termination of this Agreement and the
termination or resignation of the Special Servicer, the Paying Agent or the
Trustee or Fiscal Agent. Any expenses incurred or indemnification payments made
by the Special Servicer shall be reimbursed by the party so paid, if a court of
competent jurisdiction makes a final, non-appealable judgment that the conduct
of the Special Servicer was not culpable or found to have acted with willful
misfeasance, bad faith or negligence.
(c) The initial Special Servicer and the Depositor expressly agree that
the only information furnished by or on behalf of the Special Servicer for
inclusion in the Preliminary Prospectus Supplement and the Final Prospectus
Supplement is the information set forth in the paragraph under the caption
"SERVICING OF THE MORTGAGE LOANS - The Master Servicer and Special
Servicer--Special Servicer" of the Preliminary Prospectus Supplement and Final
Prospectus Supplement.
SECTION 9.25 RESERVED
SECTION 9.26 SPECIAL SERVICER MAY OWN CERTIFICATES. The Special
Servicer or any agent of the Special Servicer in its individual capacity or in
any other capacity may become the owner or pledgee of Certificates with the same
rights as it would have if they were not the Special Servicer or such agent. Any
such interest of the Special Servicer or such agent in the Certificates shall
not be taken into account when evaluating whether actions of the Special
Servicer are consistent with its obligations in accordance with the Servicing
Standard regardless of whether such actions may have the effect of benefiting
the Class or Classes of Certificates owned by the Special Servicer.
SECTION 9.27 TAX REPORTING. The Special Servicer shall provide the
necessary information to the Master Servicer to allow the Master Servicer to
comply with the Mortgagor tax reporting requirements imposed by Sections 6050H,
6050J and 6050P of the Code with respect to any Specially Serviced Mortgage
Loan. The Special Servicer shall provide to the Master Servicer copies of any
such reports. The Master Servicer shall forward such reports to the Trustee and
the Paying Agent.
SECTION 9.28 APPLICATION OF FUNDS RECEIVED. It is anticipated that
the Master Servicer will be collecting all payments with respect to the Mortgage
Loans (other than payments with respect to REO Income). If, however, the Special
Servicer should receive any payments with respect to any Mortgage Loan (other
than REO Income) it shall, within one Business Day of receipt from the Mortgagor
or otherwise of any amounts attributable to payments with respect to or the sale
of any Mortgage Loan or any Specially Serviced Mortgage Loan, if any, (but not
including REO Income, which shall be deposited in the applicable REO Account as
provided in Section 9.14 hereof), either, (i) forward such payment (endorsed, if
applicable, to the order of the Master Servicer), to the Master Servicer, or
(ii) deposit such amounts, or cause such amounts to be deposited, in the
Certificate Account. The Special Servicer shall notify the Master Servicer of
each such amount received on or before the date required for the making of such
deposit or transfer, as the case may be, indicating the Mortgage Loan or
Specially Serviced Mortgage Loan to which the amount is to be applied and the
type of payment made by or on behalf of the related Mortgagor.
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SECTION 9.29 COMPLIANCE WITH REMIC PROVISIONS. The Special Servicer
shall act in accordance with this Agreement and the provisions of the Code
relating to REMICs in order to create or maintain the status of any REMIC Pool
as a REMIC under the Code or, as appropriate, adopt a plan of complete
liquidation. The Special Servicer shall not take any action or cause any REMIC
Pool to take any action that would (i) endanger the status of any REMIC as a
REMIC under the Code or (ii) subject to Section 9.14(e), result in the
imposition of a tax upon any REMIC Pool (including, but not limited to, the tax
on prohibited transactions as defined in Code Section 860F(a)(2) or on
prohibited contributions pursuant to Section 860G(d)) unless the Master Servicer
and the Trustee have received a Nondisqualification Opinion (at the expense of
the party seeking to take such action) to the effect that the contemplated
action will not endanger such status or result in the imposition of such tax.
The Special Servicer shall comply with the provisions of Article XII hereof.
SECTION 9.30 TERMINATION.
(a) The obligations and responsibilities of the Special Servicer
created hereby (other than the obligation of the Special Servicer to make
payments to the Master Servicer as set forth in Section 9.28 and the obligations
of the Special Servicer pursuant to Sections 9.8 and 9.24 hereof) shall
terminate on the date which is the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining outstanding
(and final distribution to the Certificateholders) or, (B) the disposition of
all REO Property in respect of any Specially Serviced Mortgage Loan (and final
distribution to the Certificateholders), (ii) 60 days following the date on
which the Trustee or the Operating Adviser has given written notice to the
Special Servicer that this Agreement is terminated pursuant to Section 9.30(b)
or 9.30(c), respectively, and (iii) the effective date of any resignation of the
Special Servicer effected pursuant to and in accordance with Section 9.21.
(b) The Trustee may terminate the Special Servicer in the event that
(i) the Special Servicer has failed to remit any amount required to be remitted
to the Trustee, the Master Servicer, the Fiscal Agent, the Paying Agent or the
Depositor within one (1) Business Day following the date such amount was
required to have been remitted under the terms of this Agreement, (ii) the
Special Servicer has failed to deposit into any account any amount required to
be so deposited or remitted under the terms of this Agreement which failure
continues unremedied for one Business Day following the date on which such
deposit or remittance was first required to be made; (iii) the Special Servicer
has failed to duly observe or perform in any material respect any of the other
covenants or agreements of the Special Servicer set forth in this Agreement, and
the Special Servicer has failed to remedy such failure within thirty (30) days
after written notice of such failure, requiring the same to be remedied, shall
have been given to the Special Servicer by the Depositor or the Trustee,
provided, however, that if the Special Servicer certifies to the Trustee and the
Depositor that the Special Servicer is in good faith attempting to remedy such
failure, and the Certificateholders would not be affected thereby, such cure
period will be extended to the extent necessary to permit the Special Servicer
to cure such failure; provided, however, that such cure period may not exceed 90
days; (iv) the Special Servicer has made one or more false or misleading
representations or warranties herein that materially and adversely affects the
interest of any Class of Certificates, and has failed to cure such breach within
thirty (30) days after notice of such breach, requiring the same to be remedied,
shall have been given to the Special Servicer by the Depositor or the Trustee,
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provided, however, that if the Special Servicer certifies to the Trustee and the
Depositor that the Special Servicer is in good faith attempting to remedy such
failure, such cure period may be extended to the extent necessary to permit the
Special Servicer to cure such failure; provided, however, that such cure period
may not exceed 90 days; (v) the Special Servicer is removed from S&P's approved
special servicer list and the ratings then assigned by S&P to any Classes of
Certificates are downgraded, qualified or withdrawn (including, without
limitation, being placed on "negative credit watch") in connection with such
removal; (vi) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any present or
future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Special Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of 60
days; (vii) the Special Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings relating to the Special Servicer or of or
relating to all or substantially all of its property; or (viii) the Special
Servicer thereof shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
bankruptcy, insolvency or reorganization statute, make an assignment for the
benefit of its creditors, voluntarily suspend payment of its obligations, or
take any corporate action in furtherance of the foregoing; or (ix) a Special
Servicing Officer of the Special Servicer receives actual knowledge that Xxxxx'x
has (A) qualified, downgraded or withdrawn its rating or ratings of one or more
Classes of Certificates, or (B) placed one or more Classes of Certificates on
"watch status" in contemplation of a rating downgrade or withdrawal (and such
"watch status" placement shall not have been withdrawn by Xxxxx'x within 60 days
of the date that a Special Servicing Officer of the Special Servicer obtained
such actual knowledge) and, in the case of either of clauses (A) or (B), citing
servicing concerns with the Special Servicer as the sole or material factor in
such rating action. Such termination shall be effective on the date after the
date of any of the above events that the Trustee specifies in a written notice
to the Special Servicer specifying the reason for such termination. The
Operating Adviser shall have the right to appoint a successor if the Trustee
terminates the Special Servicer.
(c) The Operating Adviser shall have the right to direct the Trustee to
terminate the Special Servicer, provided that the Operating Adviser shall
appoint a successor Special Servicer who will (i) be reasonably satisfactory to
the Trustee and to the Depositor, and (ii) execute and deliver to the Trustee an
agreement, in form and substance reasonably satisfactory to the Trustee, whereby
the successor Special Servicer agrees to assume and perform punctually the
duties of the Special Servicer specified in this Agreement; and provided,
further, that the Trustee shall have received Rating Agency Confirmation from
each Rating Agency prior to the termination of the Special Servicer. The Special
Servicer shall not be terminated pursuant to this subsection (c) until a
successor Special Servicer shall have been appointed. The Operating Adviser
shall pay any costs and expenses incurred by the Trust in connection with the
removal and appointment of a Special Servicer (unless such removal is based on
any of the events or circumstances set forth in Section 9.30(b)).
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SECTION 9.31 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of Section
9.30(a), specifying the Distribution Date upon which the final distribution
shall be made, shall be given promptly by the Special Servicer to the Trustee
and the Paying Agent no later than the later of (i) five Business Days after the
final payment or other liquidation of the last Mortgage Loan or (ii) the sixth
day of the month in which the final Distribution Date will occur. Upon any such
termination, the rights and duties of the Special Servicer (other than the
rights and duties of the Special Servicer pursuant to Sections 9.8, 9.21, 9.23
and 9.24 hereof) shall terminate and the Special Servicer shall transfer to the
Master Servicer the amounts remaining in each REO Account and shall thereafter
terminate each REO Account and any other account or fund maintained with respect
to the Specially Serviced Mortgage Loans.
(b) On the date specified in a written notice of termination given to
the Special Servicer pursuant to clause (ii) of Section 9.30(a), all authority,
power and rights of the Special Servicer under this Agreement, whether with
respect to the Specially Serviced Mortgage Loans or otherwise, shall terminate;
provided, that in no event shall the termination of the Special Servicer be
effective until the Trustee or other successor Special Servicer shall have
succeeded the Special Servicer as successor Special Servicer, notified the
Special Servicer of such designation, and such successor Special Servicer shall
have assumed the Special Servicer's obligations and responsibilities, as set
forth in an agreement substantially in the form hereof, with respect to the
Specially Serviced Mortgage Loans. The Trustee or other successor Special
Servicer may not succeed the Special Servicer as Special Servicer until and
unless it has satisfied the provisions that would apply to a Person succeeding
to the business of the Special Servicer pursuant to Section 9.20 hereof. The
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
the Special Servicer, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination.
The Special Servicer agrees to cooperate with the Trustee and the Fiscal Agent
in effecting the termination of the Special Servicer's responsibilities and
rights hereunder as Special Servicer including, without limitation, providing
the Trustee all documents and records in electronic or other form reasonably
requested by it to enable the successor Special Servicer designated by the
Trustee to assume the Special Servicer's functions hereunder and to effect the
transfer to such successor for administration by it of all amounts which shall
at the time be or should have been deposited by the Special Servicer in any REO
Account and any other account or fund maintained or thereafter received with
respect to the Specially Serviced Mortgage Loans.
(c) If the Special Servicer receives a written notice of termination
pursuant to clause (ii) of Section 9.30(a) relating solely to an event set forth
in Section 9.30(b)(v) or (ix), and if the Special Servicer provides the Trustee
with the appropriate "request for proposal" materials within five Business Days
after receipt of such written notice of termination, then the Trustee shall
promptly thereafter (using such "request for proposal" materials provided by the
Special Servicer) solicit good faith bids for the rights to be appointed as
Special Servicer under this Agreement from at least three but no more than five
Qualified Bidders or, if three Qualified Bidders cannot be located, then from as
many persons as the Trustee can determine are Qualified Bidders. At the
Trustee's request, the Special Servicer shall supply the Trustee with the names
of Persons from whom to solicit such bids. In no event shall the Trustee be
responsible if less
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than three Qualified Bidders submit bids for the right to service the Mortgage
Loans under this Agreement.
(d) Each bid proposal shall require any Successful Bidder, as a
condition of its bid, to enter into this Agreement as successor Special
Servicer, and to agree to be bound by the terms hereof, not later than 30 days
after termination of the Special Servicer hereunder. The Trustee shall select
the Qualified Bidder with the highest cash bid (or such other Qualified Bidder
as the Master Servicer may direct) that is also acceptable to the Operating
Adviser (the "Successful Bidder") to act as successor Special Servicer
hereunder. If no bidder is acceptable to the Operating Adviser, the Operating
Adviser shall appoint the successor Special Servicer after consultation with the
Controlling Class, provided that the successor Special Servicer so appointed
must be bound by the terms of this Agreement and there must be delivered a
Rating Agency Confirmation in connection with such appointment. The Trustee
shall direct the Successful Bidder to enter into this Agreement as successor
Special Servicer pursuant to the terms hereof not later than 30 days after the
termination of the Special Servicer hereunder, and in connection therewith to
deliver the amount of the Successful Bidder's cash bid to the Trustee by wire
transfer of immediately available funds to an account specified by the Trustee
no later than 10:00 a.m. New York City time on the date specified for the
assignment and assumption of the servicing rights hereunder.
(e) Upon the assignment and acceptance of the servicing right hereunder
to and by the Successful Bidder and receipt of such cash bid, the Trustee shall
remit or cause to be remitted to the terminated Special Servicer the amount of
such cash bid received from the Successful Bidder (net of out-of-pocket expenses
incurred in connection with obtaining such bid and transferring servicing) by
wire transfer of immediately available funds to an account specified by the
terminated Special Servicer no later than 1:00 p.m. New York City time on the
date specified for the assignment and assumption of the servicing rights
hereunder.
(f) If the Successful Bidder has not entered into this Agreement as
successor Special within 30 days after the termination of the Special Servicer
hereunder or no Successful Bidder was identified within such 30-day period, the
Trustee shall have no further obligations under Section 9.31(c) and may act or
may select another successor to act as Special Servicer hereunder in accordance
with Section 9.31(b).
SECTION 9.32 CERTAIN SPECIAL SERVICER REPORTS.
(a) The Special Servicer, for each Specially Serviced Mortgage Loan,
shall provide to the Master Servicer and the Paying Agent on or prior to the
Determination Date for each month, the CMSA Reports in such electronic format as
is mutually acceptable to the Master Servicer and the Special Servicer and in
CMSA format. The Master Servicer and the Paying Agent may use such reports or
information contained therein to prepare its reports and the Master Servicer
may, at its option, forward such reports directly to the Depositor and the
Rating Agencies.
(b) The Special Servicer shall maintain accurate records, prepared by a
Servicing Officer, of each Final Recovery Determination with respect to any
Mortgage Loan or REO Property and the basis thereof. Each Final Recovery
Determination shall be evidenced by
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an Officer's Certificate delivered to the Trustee, the Operating Adviser, the
Paying Agent and the Master Servicer no later than the ten Business Day
following such Final Recovery Determination.
(c) The Special Servicer shall provide to the Master Servicer or the
Paying Agent at the reasonable request in writing of the Master Servicer or the
Paying Agent, any information in its possession with respect to the Specially
Serviced Mortgage Loans which the Master Servicer or Paying Agent, as the case
may be, shall require in order for the Master Servicer or the Paying Agent to
comply with its obligations under this Agreement; provided that the Special
Servicer shall not be required to take any action or provide any information
that the Special Servicer determines will result in any material cost or expense
to which it is not entitled to reimbursement hereunder or will result in any
material liability for which it is not indemnified hereunder. The Master
Servicer will provide the Special Servicer at the request of the Special
Servicer any information in its possession with respect to the Mortgage Loans
which the Master Servicer shall require in order for the Special Servicer to
comply with its obligations under this Agreement.
(d) Not later than 20 days after each Special Servicer Remittance Date,
the Special Servicer shall forward to the Master Servicer a statement setting
forth the status of each REO Account as of the close of business on such Special
Servicer Remittance Date, stating that all remittances required to be made by it
as required by this Agreement to be made by the Special Servicer have been made
(or, if any required distribution has not been made by the Special Servicer,
specifying the nature and status thereof) and showing, for the period from the
day following the preceding Special Servicer Remittance Date to such Special
Servicer Remittance Date, the aggregate of deposits into and withdrawals from
each REO Account for each category of deposit specified in Section 5.1 of this
Agreement and each category of withdrawal specified in Section 5.2 of this
Agreement.
(e) The Special Servicer shall use reasonable efforts to obtain and,
to the extent obtained, to deliver to the Master Servicer, the Paying Agent,
the Rating Agencies and the Operating Adviser, on or before April 15 of each
year, commencing with April 15, 2003, (i) copies of the prior year operating
statements and quarterly statements, if available, for each Mortgaged Property
underlying a Specially Serviced Mortgage Loan or REO Property as of its fiscal
year end, provided that either the related Mortgage Note or Mortgage requires
the Mortgagor to provide such information, or if the related Mortgage Loan has
become an REO Property, (ii) a copy of the most recent rent roll available for
each Mortgaged Property, and (iii) a table, setting forth the Debt Service
Coverage Ratio and occupancy with respect to each Mortgaged Property covered by
the operating statements delivered above; provided, that, with respect to any
Mortgage Loan that becomes a Specially Serviced Mortgage Loan prior to April 15,
2003 and for which the items in clause (i) and (ii) above have not been
delivered, the Special Service shall use reasonable efforts to obtain and, to
the extent obtained, deliver such items to the Master Servicer, the Paying
Agent, the Rating Agencies and the Operating Adviser as soon as possible after
receipt of such items.
(f) The Special Servicer shall deliver to the Master Servicer, the
Depositor, the Paying Agent and the Trustee all such other information with
respect to the Specially Serviced Mortgage Loans at such times and to such
extent as the Master Servicer, the Trustee, the Paying Agent or Depositor may
from time to time reasonably request; provided, however, that the Special
Servicer shall not be required to produce any ad hoc non-standard written
reports with respect to such Mortgage Loans except if any Person (other than the
Paying Agent or the Trustee) requesting such report pays a reasonable fee to be
determined by the Special Servicer.
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(g) The Special Servicer shall deliver a written Inspection Report of
each Specially Serviced Mortgage Loan in accordance with Section 9.4(b) to the
Operating Adviser.
(h) The Special Servicer shall provide, as soon as practicable after a
Mortgage Loan becomes a Specially Serviced Mortgage Loan, to the Master Servicer
its estimate of the net recoverable amount to the Certificateholders (and the
holder of the B Note if in connection with an A/B Mortgage Loan) and anticipated
expenses in connection therewith (and a general description of the plan to
achieve such recovery) of such Specially Serviced Mortgage Loan and other
information reasonably requested by the Master Servicer. The Special Servicer
shall update such information on a quarterly basis.
SECTION 9.33 SPECIAL SERVICER TO COOPERATE WITH THE MASTER SERVICER AND
PAYING AGENT.
(a) The Special Servicer shall furnish on a timely basis such reports,
certifications, and information as are reasonably requested by the Master
Servicer, the Trustee or the Paying Agent to enable it to perform its duties
under this Agreement or the Primary Servicing Agreement, as applicable; provided
that no such request shall (i) require or cause the Special Servicer to violate
the Code, any provision of this Agreement, including the Special Servicer's
obligation to act in accordance with the servicing standards set forth in this
Agreement and to maintain the REMIC status of any REMIC Pool or (ii) expose the
Special Servicer, the Trust, the Fiscal Agent, the Paying Agent or the Trustee
to liability or materially expand the scope of the Special Servicer's
responsibilities under this Agreement. In addition, the Special Servicer shall
notify the Master Servicer of all expenditures incurred by it with respect to
the Specially Serviced Mortgage Loans which are required to be made by the
Master Servicer as Servicing Advances as provided herein, subject to the
provisions of Section 4.4 hereof. The Special Servicer shall also remit all
invoices relating to Servicing Advances promptly upon receipt of such invoices.
(b) The Special Servicer shall from time to time make reports,
recommendations and analyses to the Operating Adviser with respect to the
following matters, the expense of which shall be charged to the Operating
Adviser, but in no event shall such costs be an expense of the Trust:
(i) whether the foreclosure of a Mortgaged Property relating
to a Specially Serviced Mortgage Loan would be in the best economic interest of
the Trust;
(ii) if the Special Servicer elects to proceed with a
foreclosure, whether a deficiency judgment should or should not be sought
because the likely recovery will or will not be sufficient to warrant the cost,
time and exposure of pursuing such judgment;
(iii) whether the waiver or enforcement of any "due-on-sale"
clause or "due-on-encumbrance" clause contained in a Mortgage Loan or a
Specially Serviced Mortgage Loan is in the best economic interest of the Trust;
(iv) in connection with entering into an assumption agreement
from or with a person to whom a Mortgaged Property securing a Specially Serviced
Mortgage Loan
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has been or is about to be conveyed, or to release the original Mortgagor from
liability upon a Specially Serviced Mortgage Loan and substitute a new
Mortgagor, and whether the credit status of the prospective new Mortgagor is in
compliance with the Special Servicer's regular commercial mortgage origination
or servicing standard;
(v) in connection with the foreclosure on a Specially Serviced
Mortgage Loan secured by a Mortgaged Property which is not in compliance with
CERCLA, or any comparable environmental law, whether it is in the best economic
interest of the Trust to bring the Mortgaged Property into compliance therewith
and an estimate of the cost to do so; and
(vi) with respect to any proposed modification (which shall
include any proposed release, substitution or addition of collateral),
extension, waiver, amendment, discounted payoff or sale of a Mortgage Loan,
prepare a summary of such proposed action and an analysis of whether or not such
action is reasonably likely to produce a greater recovery on a present value
basis than liquidation of such Mortgage Loan; such analysis shall specify the
basis on which the Special Servicer made such determination, including the
status of any existing material default or the grounds for concluding that a
payment default is imminent.
SECTION 9.34 RESERVED
SECTION 9.35 RESERVED
SECTION 9.36 SALE OF DEFAULTED MORTGAGE LOANS.
(a) The holder of Certificates evidencing the greatest percentage
interest in the Controlling Class, the Special Servicer and each Seller (other
than Xxxxx Fargo Bank, National Association) as to those Mortgage Loans sold to
the Depositor by such Seller only (in such capacity, together with any assignee,
the "Option Holder") shall, in that order, have the right, at its option (the
"Option"), to purchase a Mortgage Loan from the Trust at a price equal to the
Option Purchase Price upon receipt of notice from the Special Servicer that such
Mortgage Loan has become at least 60 days delinquent as to any monthly debt
service payment (or is delinquent as to its Balloon Payment); provided, however,
that with respect to an A Note, the Option Holder's rights under this Section
9.36 are subject to the rights of the holder of the related B Note to purchase
the A Note pursuant to the terms of the Intercreditor Agreement. The Option is
exercisable, subject to Section 2.3, from that date until terminated pursuant to
clause (e) below, and during that period the Option shall be exercisable in any
month only during the period from the 10th calendar day of such month through
the 25th calendar day, inclusive, of such month. The Trustee on behalf of the
Trust shall be obligated to sell such Mortgage Loan upon the exercise of the
Option (whether exercised by the original holder thereof or by a holder that
acquired such Option by assignment), but shall have no authority to sell such
Mortgage Loan other than in connection with the exercise of an Option (or in
connection with a repurchase of a Mortgage Loan under Article II, an optional
termination pursuant to Section 10.1 or a qualified liquidation of the REMIC) or
if such Mortgage Loan is an A Note, to the holder of the related B Note pursuant
to the terms of the Intercreditor Agreement. Any Option Holder that exercises
the Option shall be required to purchase the applicable Mortgage Loan on the 4th
Business Day after such exercise. If any Option Holder desires to waive its
right to exercise the Option, then it shall so notify the Trustee in writing,
and the Trustee shall promptly notify the next party eligible to
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hold the Option set forth above of its rights hereunder. Any of the parties
eligible to hold the Option set forth above may at any time notify the Trustee
in writing of its desire to exercise the Option, and the Trustee shall promptly
notify (i) the current Option Holder (and the other parties eligible to hold the
Option) and (ii) solely with respect to an Option to purchase an A Note, the
holder of the related B Note, of such party's desire to exercise the Option;
provided that none of the Trustee, the Master Servicer or the Special Servicer
shall disclose the Option Purchase Price to the holder of such related B Note.
If the Option Holder neither (i) exercises the Option nor (ii) surrenders its
right to exercise the Option within 3 Business Days of its receipt of that
notice, then the Option Holder's right to exercise the Option shall lapse, and
the Trustee shall promptly notify the next party eligible to hold the Option
(and the other parties eligible to hold the Option) of its rights thereunder.
(b) The Option Purchase Price shall be an amount equal to the fair
value of the related Mortgage Loan, as determined by the Special Servicer. Prior
to the Special Servicer's determination of fair value referred to above, the
fair value of a Mortgage Loan shall be deemed to be an amount equal to the
Purchase Price plus (i) any prepayment penalty or yield maintenance charge then
payable upon the prepayment of such Mortgage Loan and (ii) the reasonable fees
and expenses of the Special Servicer, the Master Servicer and the Trustee
incurred in connection with the sale of the Mortgage Loan. The Special Servicer
shall determine the fair value of a Mortgage Loan on the later of (A) as soon as
reasonably practical upon the Mortgage Loan becoming 60 days delinquent or upon
the Balloon Payment becoming delinquent and (B) the date that is 75 days after
the Special Servicer's receipt of the Servicer Mortgage File relating to such
Mortgage Loan, and the Special Servicer shall promptly notify the Option Holder
(and the Trustee and each of the other parties set forth above that could become
the Option Holder) of (i) the Option Purchase Price and (ii) if such Mortgage
Loan is the A Note, that the A Note is subject to the terms of the Intercreditor
Agreement and that any purchaser of the A Note will be subject to such
Intercreditor Agreement. The Special Servicer is required to recalculate the
fair value of the Mortgage Loan if there has been a material change in
circumstances or the Special Servicer has received new information (including,
without limitation, any cash bids received from the holder of the related B Note
in connection with an A Note), either of which has a material effect on the fair
value, provided that the Special Servicer shall be required to recalculate the
fair value of the Mortgage Loan if the time between the date of last
determination of the fair value of the Mortgage Loan and the date of the
exercise of the Option has exceeded 60 days. Upon any recalculation, the Special
Servicer shall be required to promptly notify in writing each Option Holder (and
the Trustee and each of the other parties set forth above that could become the
Option Holder) of the revised Option Purchase Price. Any such recalculation of
the fair value of the Mortgage Loan shall be deemed to renew the Option in its
original priority at the recalculated price with respect to any party as to
which the Option had previously expired or been waived, unless the Option has
previously been exercised by an Option Holder at a higher Option Purchase Price.
In determining fair value, the Special Servicer shall take into account, among
other factors, the results of any Appraisal or updated Appraisal that it or the
Master Servicer may have obtained in accordance with this Agreement within the
prior twelve months; any views on fair value expressed by Independent investors
in mortgage loans comparable to the Mortgage Loan (provided that the Special
Servicer shall not be obligated to solicit such views); the period and amount of
any delinquency on the affected Mortgage Loan; whether to the Special Servicer's
actual knowledge, the Mortgage Loan is in default to avoid a prepayment
restriction; the physical condition of the related Mortgaged Property; the state
of the
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local economy; the expected recoveries from the Mortgage Loan if the Special
Servicer were to pursue a workout or foreclosure strategy instead of the Option
being exercised; and the Trust's obligation to dispose of any REO Property as
soon as practicable consistent with the objective of maximizing proceeds for all
Certificateholders, but in no event later than the three-year period (or such
extended period) specified in Section 9.15.
(c) Any Option relating to a Mortgage Loan shall be assignable to a
third party (including, without limitation, in connection with an A Note, the
holder of the related B Note) by the Option Holder at its discretion at any time
after its receipt of notice from the Special Servicer that an Option is
exercisable with respect to a specified Mortgage Loan, and upon such assignment
such third party shall have all of the rights granted to the Option Holder
hereunder in respect of the Option. Such assignment shall only be effective upon
written notice (together with a copy of the executed assignment and assumption
agreement) being delivered to the Trustee, the Master Servicer and the Special
Servicer, and none of such parties shall be obligated to recognize any entity as
an Option Holder absent such notice.
(d) If the Special Servicer, the holder of Certificates representing
the greatest percentage interest in the Controlling Class or an Affiliate of
either thereof elects to exercise the Option, the Trustee shall be required to
determine whether the Option Purchase Price constitutes a fair price for the
Mortgage Loan. Upon request of the Special Servicer to make such a
determination, the Trustee will do so within a reasonable period of time (but in
no event more than 15 Business Days). In doing so, the Trustee may rely on the
opinion of an Appraisal or other expert in real estate matters retained by the
Trustee at the expense of the party exercising the Option. The Trustee may also
rely on the most recent Appraisal of the related Mortgaged Property that was
prepared in accordance with this Agreement. If the Trustee were to determine
that the Option Purchase Price does not constitute a fair price, then the
Special Servicer shall redetermine the fair value taking into account the
objections of the Trustee.
(e) The Option shall terminate, and shall not be exercisable as set
forth in clause (a) above (or if exercised, but the purchase of the related
Mortgage Loan has not yet occurred, shall terminate and be of no further force
or effect) if the Mortgage Loan to which it relates is no longer delinquent as
set forth above because the Mortgage Loan has (i) become a Rehabilitated
Mortgage Loan, (ii) been subject to a workout arrangement, (iii) been foreclosed
upon or otherwise resolved (including by a full or discounted pay-off) or (iv)
been purchased by the related Seller pursuant to Section 2.3. In addition, the
Option with respect to an A Note shall terminate upon the purchase of the A Note
by the holder of the related B Note pursuant to the related Intercreditor
Agreement.
(f) Unless and until an Option Holder exercises an Option, the Special
Servicer shall continue to service and administer the related Mortgage Loan in
accordance with the Servicing Standard and this Agreement, and shall pursue such
other resolution or recovery strategies, including workout or foreclosure, as is
consistent with this Agreement and the Servicing Standard.
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SECTION 9.37 OPERATING ADVISER; ELECTIONS.
(a) In accordance with Section 9.37(c), the Certificateholders
representing more than 50% of the Certificate Balance of the Certificates of the
then Controlling Class may elect the operating adviser (the "Operating
Adviser"). The Operating Adviser shall be elected for the purpose of receiving
reports and information from the Special Servicer in respect of the Specially
Serviced Mortgage Loans.
(b) The initial Operating Adviser is GMAC Institutional Advisors LLC, a
wholly-owned subsidiary of GMAC Commercial Mortgage Corporation. The Controlling
Class shall give written notice to the Trustee, the Paying Agent and the Master
Servicer of the appointment of any subsequent Operating Adviser (in order to
receive notices hereunder). If a subsequent Operating Adviser is not so
appointed, an election of an Operating Adviser also shall be held. Notice of the
meeting of the Holders of the Controlling Class shall be mailed or delivered to
each Holder by the Paying Agent, not less than 10 nor more than 60 days prior to
the meeting. The notice shall state the place and the time of the meeting, which
may be held by telephone. A majority of Certificate Balance of the Certificates
of the then Controlling Class, present in person or represented by proxy, shall
constitute a quorum for the nomination of an Operating Adviser. At the meeting,
each Holder shall be entitled to nominate one Person to act as Operating
Adviser. The Paying Agent shall cause the election of the Operating Adviser to
be held as soon thereafter as is reasonably practicable.
(c) Each Holder of the Certificates of the Controlling Class shall be
entitled to vote in each election of the Operating Adviser. The voting in each
election of the Operating Adviser shall be in writing mailed, telecopied,
delivered or sent by courier and actually received by the Paying Agent on or
prior to the date of such election. Immediately upon receipt by the Paying Agent
of votes (which have not been rescinded) from the Holders of Certificates
representing more than 50% of the Certificate Balance of the Certificates of the
then Controlling Class which are cast for a single Person, such Person shall be,
upon such Person's acceptance, the Operating Adviser. The Paying Agent shall
promptly notify the Trustee of the identity of the Operating Adviser. Until an
Operating Adviser is elected by Holders of Certificates representing more than
50% of the Certificate Balance of the Certificates of the then Controlling Class
or in the event that an Operating Adviser shall have resigned or been removed
and a successor Operating Adviser shall not have been elected, there shall be no
Operating Adviser.
(d) The Operating Adviser may be removed at any time by the written
vote, copies of which must be delivered to the Paying Agent, of more than 50% of
the Certificate Balance of the Holders of the Certificates of the then
Controlling Class.
(e) The Paying Agent shall act as judge of each election and, absent
manifest error, the determination of the results of any election by the Paying
Agent shall be conclusive. Notwithstanding any other provisions of this Section
9.37, the Paying Agent may make such reasonable regulations as it may deem
advisable for any election.
(f) Notwithstanding any provision of this Section 9.37 or any other
provision of this Agreement to the contrary, at any time that the Special
Servicer has been elected as Operating Adviser or no Operating Adviser has been
elected, (i) the Special Servicer shall not be
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required to deliver notices or information to, or obtain the consent or approval
of, the Operating Adviser and (ii) to the extent any Person other than the
Special Servicer is otherwise required hereunder to provide notices or
information to, or obtain the consent or approval of, the Operating Adviser,
such Person shall be required to provide such notices or information to, or
obtain the consent or approval of, the Special Servicer.
SECTION 9.38 LIMITATION ON LIABILITY OF OPERATING ADVISER. The
Operating Adviser shall have no liability to the Trust, the holder of any B Note
or the Certificateholders for any action taken, or for refraining from the
taking of any action, in good faith and using reasonable business judgment
pursuant to this Agreement, or using reasonable business judgment. By its
acceptance of a Certificate, each Certificateholder (and Certificate Owner)
confirms its understanding that the Operating Adviser may take actions that
favor the interests of one or more Classes of the Certificates over other
Classes of the Certificates and that the Operating Adviser may have special
relationships and interests that conflict with those of Holders of some Classes
of the Certificates and each holder of a B Note (if any) and each
Certificateholder (and Certificate Owner) agrees to take no action against the
Operating Adviser based upon such special relationship or conflict.
SECTION 9.39 DUTIES OF OPERATING ADVISER. The Operating Adviser may
advise, and receive notice from, the Special Servicer, but is not required to do
so on any of the following actions:
(i) any foreclosure upon or comparable conversion (which may
include acquisition of an REO Property) of the ownership of properties securing
such of the Specially Serviced Mortgage Loans as come into and continue in
default;
(ii) any modification of a Money Term of a Mortgage Loan other
than a modification consisting of the extension of the original Maturity Date of
a Mortgage Loan for two years or less;
(iii) any proposed sale of a Defaulted Mortgage Loan (other
than upon termination of the Trust pursuant to Article X);
(iv) any determination to bring an REO Property into
compliance with Environmental Laws;
(v) any acceptance of substitute or additional collateral for
a Mortgage Loan that is not otherwise expressly provided for under the Mortgage
Loan documents;
(vi) any acceptance of a discounted payoff;
(vii) any waiver of a "due-on-sale" or "due-on-encumbrance"
clause;
(viii) any acceptance of an assumption agreement releasing a
Mortgagor from liability under a Mortgage Loan; and
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(ix) any release of collateral for a Specially Serviced
Mortgage Loan (other than in accordance with the terms of or upon satisfaction
of, such Mortgage Loan).
With respect to items (vii), (viii) and (ix), the Operating Adviser
shall be subject to the same time periods for advising the Special Servicer with
respect to any such matters as are afforded to the Special Servicer pursuant to
Section 8.7, which periods shall be co-terminous with those of Special Servicer.
In addition, the Operating Adviser may direct the Trustee to remove the Special
Servicer at any time upon the appointment and acceptance of such appointment by
a successor to the Special Servicer; provided that, prior to the effectiveness
of any such appointment, the Trustee and the Paying Agent shall have received
Rating Agency Confirmation from each Rating Agency. The Operating Adviser shall
pay any costs and expenses incurred by the Trust in connection with the removal
and appointment of a Special Servicer (unless such removal is based on any of
the events or circumstances set forth in Section 9.30(b)). The Trustee shall
notify the Paying Agent promptly upon its receipt of the direction set forth
above.
SECTION 9.40 RIGHTS OF THE HOLDER OF A B NOTE. With respect to each
A/B Mortgage Loan (if any), pursuant to the related Intercreditor Agreement,
either the Master Servicer (with respect to Mortgage Loans that are not
Specially Serviced Mortgage Loans) or the Special Servicer (with respect to
Specially Serviced Mortgage Loans), as applicable, shall consult with the holder
of the related B Note (or an operating advisor appointed by the holder of the B
Note to act on its behalf at the expense of the holder of the B Note) regarding
its views, and shall provide the holder of the related B Note with any proposals
and back-up materials that are used by either the Master Servicer or the Special
Servicer, as applicable, in developing such proposals (as reasonably determined
by either the Master Servicer or the Special Servicer, as applicable), including
but not limited to (and only if previously obtained by either the Master
Servicer or the Special Servicer, as applicable, and not previously delivered to
such holder of the B Note) property inspection reports, credit reports, the
Mortgagor financial and/or operating statements, appraisals, engineering
reports, soil reports, environmental assessment reports, seismic reports,
architect's certificates, insurance premium receipts and insurance claim files,
with respect to the following actions at least five (5) Business Days prior to
any such action being taken:
(a) any foreclosure upon or comparable conversion (which may include
acquisitions of an REO Property) of the ownership of the Mortgaged Property;
(b) any modification of a Money Term of the Mortgage Loan or the
related B Note other than a modification consisting of the extension of the
original Maturity Date of a Mortgage Loan for two years or less;
(c) any proposed sale of such Mortgage Loan if it is a Defaulted
Mortgaged Loan or REO Property (other than upon termination of the Trust
pursuant to Article X);
(d) any acceptance of a discounted payoff on the related Mortgage Loan
or the related B Note;
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(e) any determination to bring the related Mortgaged Property or the
related REO Property into compliance with Environmental Laws;
(f) any release of collateral for the related Mortgage Loan or related
B Note (other than in accordance with the terms of, or upon satisfaction of,
such Mortgage Loan and the related B Note);
(g) any acceptance of substitute or additional collateral for the
related Mortgage Loan and the related B Note that is not otherwise expressly
provided for under the terms of such Mortgage Loan and the related B Note;
(h) any waiver of a "due-on-sale" or "due-on-encumbrance" clause;
(i) any acceptance of an assumption agreement releasing such Mortgage
Loan borrower from liability under such Mortgage Loan or the related B Note;
The holder of the B Note, if any, has agreed pursuant to the related
Intercreditor Agreement that it will provide the Master Servicer or the Special
Servicer, as applicable, with its response within five (5) Business Days after
its receipt of any such proposal and any back-up materials and shall be deemed
not to have responded if no response is received within such five (5) Business
Days.
There are no A/B Mortgage Loans in the Trust.
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
SECTION 00.0 XXXXXXXXXXX XX XXXXX XXXX XXXXXXXXXX OR LIQUIDATION OF ALL
MORTGAGE LOANS.
(a) The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, the Class R-II Certificateholders
and REMIC III Certificateholders as set forth in Section 10.2 and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders) or (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) or (iii) the termination of the
Trust pursuant to Section 10.1(c) below; provided that in no event shall the
Trust created hereby continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof.
(b) The Master Servicer shall give the Trustee, the Luxembourg Paying
Agent and the Paying Agent notice of the date when the Aggregate Certificate
Balance of the
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Certificates, after giving effect to distributions of principal made on the next
Distribution Date, is less than or equal to one percent (1%) of the initial
Aggregate Certificate Balance of the Certificates as of the Cut-Off Date. The
Trustee shall promptly forward such notice to the Depositor, the Master
Servicer, the Special Servicer and the Holders of the Class R-I Certificates,
and the Master Servicer, the Special Servicer and the Holders of the Class R-I
Certificates, in such priority (and in the case of the Class R-I
Certificateholders, a majority of the Class R-I Certificateholders), may
purchase, in whole only, the Mortgage Loans and any other property, if any,
remaining in the Trust. If any party desires to exercise such option, it will
notify the Trustee who will notify any party with a prior right to exercise such
option. If any party that has been provided notice by the Trustee (excluding the
Depositor) notifies the Trustee within ten Business Days after receiving notice
of the proposed purchase that it wishes to purchase the assets of the Trust,
then such party (or, in the event that more than one of such parties notifies
the Trustee that it wishes to purchase the assets of the Trust, the party with
the first right to purchase the assets of the Trust) may purchase the assets of
the Trust in accordance with this Agreement. Upon the Paying Agent's receipt of
the Termination Price set forth below, the Trustee shall promptly release or
cause to be released to the Master Servicer for the benefit of the Holder of the
majority of the Class R-I Certificates, the Special Servicer or the Master
Servicer, as the case may be, the Mortgage Files pertaining to the Mortgage
Loans. The "Termination Price" shall equal 100% of the aggregate Principal
Balances of the Mortgage Loans (other than Mortgage Loans as to which a Final
Recovery Determination has been made) on the day of such purchase plus accrued
and unpaid interest thereon at the applicable Mortgage Rates (or Mortgage Rates
less the Master Servicing Fee Rate if the Master Servicer is the purchaser),
with respect to the Mortgage Loans to the Due Date for each Mortgage Loan ending
in the Collection Period with respect to which such purchase occurs, plus
unreimbursed Advances and interest on such unreimbursed Advances at the Advance
Rate, and the fair market value of any other property remaining in REMIC I. The
Trustee shall consult with the Placement Agents and the Underwriters or their
respective successors, as advisers, in order for the Trustee to determine
whether the fair market value of the property constituting the Trust has been
offered; provided that, if any Placement Agent or any Underwriter or an
Affiliate of the Placement Agent or the Underwriters is exercising its right to
purchase the Trust assets, the Trustee shall consult with the Operating Adviser
in order for the Trustee to determine the fair market value, provided that the
Operating Adviser is not an Affiliate of the Class R-I Holder, the Special
Servicer or the Master Servicer, or the Trustee (the fees and expenses of which
shall be paid for by buyer of the property). As a condition to the purchase of
the Trust pursuant to this Section 10.1(b), the Holder of the majority of the
Class R-I Certificates, the Special Servicer or the Master Servicer, as the case
may be, must deliver to the Trustee an Opinion of Counsel, which shall be at the
expense of such Holders, the Special Servicer or the Master Servicer, as the
case may be, stating that such termination will be a "qualified liquidation"
under section 860F(a)(4) of the Code. Such purchase shall be made in accordance
with Section 10.3.
(c) If at any time the Holders of the Class R-I Certificates own 100%
of the REMIC III Certificates such Holders may terminate REMIC I (which will in
turn result in the termination of REMIC II and REMIC III) upon (i) the delivery
to the Trustee and the Depositor of an Opinion of Counsel (which opinion shall
be at the expense of such Holders) stating that such termination will be a
"qualified liquidation" of each REMIC under Section 860F of the Code, and (ii)
the payment of any and all costs associated with such termination. Such
termination shall be made in accordance with Section 10.3.
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(d) Upon the termination of the Trust, any funds or other property held
by the Class N Grantor Trust shall be distributed to the Class N
Certificateholders, on a pro rata basis, whether or not the respective
Certificate Balances thereof have been reduced to zero.
(e) Upon the sale of the A Note relating to an A/B Mortgage Loan by the
Trust or the payment in full of such A Note, the related B Note shall no longer
be subject to this Agreement and shall no longer be serviced by the Master
Servicer or the Special Servicer.
SECTION 10.2 PROCEDURE UPON TERMINATION OF TRUST.
(a) Notice of any termination pursuant to the provisions of Section
10.1, specifying the Distribution Date upon which the final distribution shall
be made, shall be given promptly by the Trustee by first class mail to the
Paying Agent, the Rating Agencies, the Class R-I, Class R-II and REMIC III
Certificateholders mailed no later than ten days prior to the date of such
termination. Such notice shall specify (A) the Distribution Date upon which
final distribution on the Class R-I, Class R-II and REMIC III Certificates will
be made, and upon presentation and surrender of the Class R-I, Class R-II and
REMIC III Certificates at the office or agency of the Certificate Registrar
therein specified, and (B) that the Record Date otherwise applicable to such
Distribution Date is not applicable, distribution being made only upon
presentation and surrender of the Class R-I, Class R-II and REMIC III
Certificates at the office or agency of the Certificate Registrar therein
specified. The Trustee shall give such notice to the Depositor and the
Certificate Registrar at the time such notice is given to Holders of the Class
R-I, Class R-II and REMIC III Certificates. Upon any such termination, the
duties of the Certificate Registrar with respect to the Class R-I, Class R-II
and REMIC III Certificates shall terminate and the Trustee shall terminate, or
request the Master Servicer and the Paying Agent to terminate, the Certificate
Account and the Distribution Account and any other account or fund maintained
with respect to the Certificates, subject to the Paying Agent's obligation
hereunder to hold all amounts payable to the Class R-I, Class R-II and REMIC III
Certificateholders in trust without interest pending such payment.
(b) In the event that all of the Holders do not surrender their
certificates evidencing the Class R-I, Class R-II and REMIC III Certificates for
cancellation within three months after the time specified in the above-mentioned
written notice, the Certificate Registrar shall give a second written notice to
the remaining Class R-I, Class R-II and REMIC III Certificateholders to
surrender their certificates evidencing the Class R-I, Class R-II and REMIC III
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice any Class R-I, Class R-II
and REMIC III Certificates shall not have been surrendered for cancellation, the
Certificate Registrar may take appropriate steps to contact the remaining Class
R-I, Class R-II and REMIC III Certificateholders concerning surrender of such
certificates, and the cost thereof shall be paid out of the amounts
distributable to such Holders. If within two years after the second notice any
such Class R-I, Class R-II and REMIC III Certificates shall not have been
surrendered for cancellation, the Paying Agent shall, subject to applicable
state law relating to escheatment, hold all amounts distributable to such
Holders for the benefit of such Holders. No interest shall accrue on any amount
held by the Trustee and not distributed to a Class R-I, Class R-II or REMIC III
Certificateholder due to such Certificateholder's failure to surrender its
Certificate(s) for payment of the final distribution thereon in accordance with
this Section. Any money held by the Paying Agent pending
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distribution under this Section 10.2 after 90 days after the adoption of a plan
of complete liquidation shall be deemed for tax purposes to have been
distributed from the REMIC Pools and shall be beneficially owned by the related
Holder.
SECTION 10.3 ADDITIONAL TRUST TERMINATION REQUIREMENTS.
(a) The Trust and each REMIC shall be terminated in accordance with the
following additional requirements, unless at the request of the Master Servicer
or the Class R-I Certificateholders, as the case may be, the Trustee seeks, and
the Paying Agent subsequently receives an Opinion of Counsel (at the expense of
the Master Servicer or the Class R-I Certificateholders, as the case may be),
addressed to the Depositor, the Trustee and the Paying Agent to the effect that
the failure of the Trust to comply with the requirements of this Section 10.3
will not (i) result in the imposition of taxes on "prohibited transactions" on
any REMIC Pool under the REMIC Provisions or (ii) cause any REMIC Pool to fail
to qualify as a REMIC at any time that any Certificates are outstanding:
(i) Within 89 days prior to the time of the making of the
final payment on the REMIC III Certificates, the Master Servicer shall prepare
and the Trustee (on behalf of REMIC I, REMIC II or REMIC III) shall adopt a plan
of complete liquidation of the REMIC I Pool, meeting the requirements of a
qualified liquidation under the REMIC Provisions, which plan need not be in any
special form and the date of which, in general, shall be the date of the notice
specified in Section 10.2(a) and shall be specified in a statement attached to
the federal income tax return of each REMIC Pool;
(ii) At or after the date of adoption of such a plan of
complete liquidation and at or prior to the time of making of the final payment
on the REMIC III Certificates, the Trustee shall sell all of the assets of the
Trust for cash at the Termination Price; provided that if the Holders of the
Class R-I Certificates are purchasing the assets of the Trust, the amount to be
paid by such Holders may be paid net of the amount to be paid to such Holders as
final distributions on any Certificates held by such Holders;
(iii) At the time of the making of the final payment on the
Certificates, the Paying Agent shall distribute or credit, or cause to be
distributed or credited, (A) to the Holders of the Class R-I Certificates all
assets of REMIC I remaining after such final payment of the REMIC I Regular
Interests, (B) to the Holders of the Class R-II Certificates all remaining
assets of REMIC II after such final payment of the REMIC II Regular Interests
and (C) to the Holders of the Class R-III Certificates all remaining assets of
REMIC III (in each case other than cash retained to meet claims), and the Trust
shall terminate at that time; and
(iv) In no event may the final payment on the REMIC I Regular
Interests, REMIC II Regular Interests or REMIC Regular Certificates or the final
distribution or credit to the Holders of the Residual Certificates,
respectively, be made after the 89th day from the date on which the plan of
complete liquidation is adopted.
(b) By their acceptance of the Class R-I, Class R-II or R-III
Certificates, respectively, the Holders thereof hereby (i) authorize the Trustee
to take such action as may be necessary to adopt a plan of complete liquidation
of the REMIC Pool and (ii) agree to take such
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other action as may be necessary to adopt a plan of complete liquidation of the
Trust upon the written request of the Depositor, which authorization shall be
binding upon all successor Class R-I, Class R-II and Class R-III
Certificateholders, respectively.
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
SECTION 11.1 LIMITATION ON RIGHTS OF HOLDERS.
(a) The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner otherwise control the Master Servicer or
operation and management of the Trust, or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association, nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement unless the
Holders of Certificates evidencing not less than 50% of the Aggregate Principal
Amount of the Certificates then outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the cost, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for sixty days after its receipt
of such notice, request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding and no direction inconsistent
with such written request has been given the Trustee during such sixty-day
period by such Certificateholders; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the benefit
of all Certificateholders. For the protection and enforcement of the provisions
of this Section, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
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SECTION 11.2 ACCESS TO LIST OF HOLDERS.
(a) If the Paying Agent is not acting as Certificate Registrar, the
Certificate Registrar will furnish or cause to be furnished to the Trustee and
the Paying Agent, within fifteen days after receipt by the Certificate Registrar
of a request by the Trustee or the Paying Agent, as the case may be, in writing,
a list, in such form as the Trustee or the Paying Agent, as the case may be, may
reasonably require, of the names and addresses of the Certificateholders of each
Class as of the most recent Record Date.
(b) If the Depositor, the Operating Adviser, the Special Servicer, the
Master Servicer, the Trustee or three or more Holders (hereinafter referred to
as "applicants," with a single Person which (together with its Affiliates) is
the Holder of more than one Class of Certificates being viewed as a single
"applicant" for these purposes) apply in writing to the Paying Agent and such
application states that the applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such applicants propose to
transmit, then the Paying Agent shall, within five Business Days after the
receipt of such application, send, at such Person's expense, the written
communication proffered by the applicants to all Certificateholders at their
addresses as they appear in the Certificate Register.
(c) Every Holder, by receiving and holding a Certificate, agrees with
the Depositor, the Certificate Registrar, the Paying Agent, the Master Servicer
and the Trustee that neither the Depositor, the Certificate Registrar, the
Paying Agent, the Master Servicer nor the Trustee shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Certificateholders hereunder, regardless of the source from which such
information was derived.
SECTION 11.3 ACTS OF HOLDERS OF CERTIFICATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Depositor and
the Paying Agent. Such instrument or instruments (as the action embodies therein
and evidenced thereby) are herein sometimes referred to as an "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agents shall be sufficient for
any purpose of this Agreement and conclusive in favor of the Trustee, the
Depositor and the Paying Agent, if made in the manner provided in this Section.
The Trustee agrees to promptly notify the Depositor of any such instrument or
instruments received by it, and to promptly forward copies of the same.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments or deeds, certifying that the individual signing
such instrument or writing acknowledged to such notary public or
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other officer the execution thereof. Whenever such execution is by an officer of
a corporation or a member of a partnership on behalf of such corporation or
partnership, such certificate or affidavit shall also constitute sufficient
proof of such officer's or member's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the individual
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Certificates (notwithstanding any notation of
ownership or other writing thereon made by anyone other than the Trustee) shall
be proved by the Certificate Register, and neither the Trustee nor the Depositor
nor the Paying Agent shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Certificate shall bind every future
Holder of the same Certificate and the Holder of every Certificate issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof,
in respect of anything done, omitted or suffered to be done by the Trustee, the
Paying Agent or the Depositor in reliance thereon, whether or not notation of
such action is made upon such Certificate.
ARTICLE XII
REMIC ADMINISTRATION
The provisions of this Article XII shall apply to each REMIC Pool.
SECTION 12.1 REMIC ADMINISTRATION.
(a) An election will be made by the Paying Agent on behalf of the
Trustee to treat the segregated pool of assets consisting of the Mortgage Loans,
such amounts as shall from time to time be held in the Certificate Account and
the Distribution Account, the Insurance Policies and any REO Properties as a
REMIC ("REMIC I") under the Code, other than any portion of the foregoing
amounts allocable to a B Note. Such elections will be made on Form 1066 or other
appropriate federal tax or information return or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
REMIC I Interests are issued. For purposes of such election, the REMIC I Regular
Interests shall each be designated as a separate Class of "regular interests" in
REMIC I and the Class R-I Certificates shall be designated as the sole Class of
"residual interests" in REMIC I. The Trustee and the Paying Agent shall not
permit the creation of any "interests" (within the meaning of Section 860G of
the Code) in any of the REMICs other than the REMIC I Regular Interests, the
REMIC II Regular Interests, the REMIC III Regular Interests and the Residual
Certificates.
An election will be made by the Paying Agent to treat the segregated
pool of assets consisting of the REMIC I Regular Interests as a REMIC ("REMIC
II") under the Code. Such election will be made on Form 1066 or other
appropriate federal tax or information return or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
REMIC II Interests are issued. For the purposes of such election, the REMIC II
Regular Interests shall be designated as the "regular interests" in REMIC II and
the Class R-II Certificates shall be designated as the sole Class of the
"residual interests" in REMIC II.
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An election will be made by the Paying Agent to treat the segregated
pool of assets consisting of the REMIC II Regular Interests as a REMIC ("REMIC
III") under the Code. Such election will be made on Form 1066 or other
appropriate federal tax or information return or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
REMIC III Certificates are issued. For purposes of such election, the Class A-1,
Class A-2, Class X-1 (each Class X-1 Certificate representing multiple "regular
interests" in REMIC III, as set forth in the Preliminary Statement), Class X-2
(each Class X-2 Certificate representing multiple "regular interests" in REMIC
III, as set forth in the Preliminary Statement), Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M and Class
N Certificates shall be designated as the "regular interests" in REMIC III and
the Class R-III Certificates shall be designated as the sole Class of " residual
interests" in REMIC III.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
The assets of the Class N Grantor Trust, consisting of the right to any
Excess Interest in respect of the ARD Loans and the Excess Interest Sub-account,
shall be held by the Trustee for the benefit of the Holders of the Class N
Grantor Trust Interest represented by the Class N Certificates, which Class N
Certificates, in the aggregate, will evidence 100% beneficial ownership of such
assets from and after the Closing Date. It is intended that the portion of the
Trust consisting of the Class N Grantor Trust will be treated as a grantor trust
for federal income tax purposes, and each of the parties to this Agreement
agrees that it will not take any action that is inconsistent with establishing
or maintaining such treatment. The Trustee shall be deemed to hold and shall
account for the Class N Grantor Trust separate and apart from the assets of any
REMIC I, REMIC II and REMIC III created hereunder.
(c) The Paying Agent shall pay all routine tax related expenses (not
including any taxes, however denominated, including any additions to tax,
penalties and interest) of each REMIC Pool, excluding any professional fees or
extraordinary expenses related to audits or any administrative or judicial
proceedings with respect to each REMIC Pool that involve the Internal Revenue
Service or state tax authorities.
(d) The Paying Agent shall cause to be prepared, signed, and timely
filed with the Internal Revenue Service, on behalf of each REMIC Pool, an
application for a taxpayer identification number for such REMIC Pool on Internal
Revenue Service Form SS-4. The Paying Agent, upon receipt from the Internal
Revenue Service of the Notice of Taxpayer Identification Number Assigned, shall
promptly forward a copy of such notice to the Depositor and the Master Servicer.
The Paying Agent shall prepare and file Form 8811 on behalf of each REMIC Pool
and shall designate an appropriate Person to respond to inquiries by or on
behalf of Certificateholders for original issue discount and related information
in accordance with applicable provisions of the Code.
(e) The Paying Agent shall prepare and file all of each REMIC Pool's
federal and state income or franchise tax and information returns as such REMIC
Pool direct representative; the expenses of preparing and filing such returns
shall be borne by the Paying Agent, except that if additional state tax returns
are required to be filed in more than three states, the Paying Agent shall be
entitled, with respect to any such additional filings, to (i) be paid a
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reasonable fee and (ii) receive its reasonable costs and expenses, both as
amounts reimbursable pursuant to Section 5.2(a)(vi) hereof. The Depositor, the
Master Servicer and the Special Servicer shall provide on a timely basis to the
Paying Agent or its designee such information with respect to the Trust or any
REMIC Pool as is in its possession, which the Depositor or the Master Servicer
and the Special Servicer has received or prepared by virtue of its role as
Depositor or Master Servicer and the Special Servicer hereunder and reasonably
requested by the Paying Agent to enable it to perform its obligations under this
subsection, and the Paying Agent shall be entitled to conclusively rely on such
information in the performance of its obligations hereunder. The Depositor shall
indemnify the Trust, the Trustee, the Paying Agent and the Fiscal Agent for any
liability or assessment against any of them or cost or expense (including
attorneys' fees) incurred by them resulting from any error resulting from bad
faith, negligence, or willful malfeasance of the Depositor in providing any
information for which the Depositor is responsible for preparing. The Master
Servicer and the Special Servicer shall indemnify the Trustee, the Fiscal Agent,
the Paying Agent and the Depositor for any liability or assessment against the
Trustee, the Fiscal Agent, the Depositor, the Paying Agent or any REMIC Pool and
any expenses incurred in connection with such liability or assessment (including
attorneys' fees) resulting from any error in any of such tax or information
returns resulting from errors in the information provided by the Master Servicer
or the Special Servicer, as the case may, be or caused by the negligence,
willful misconduct or bad faith of the Master Servicer or the Special Servicer,
as the case may be. The Paying Agent shall indemnify the Master Servicer, the
Depositor or any REMIC Pool for any expense incurred by the Master Servicer, the
Depositor and any REMIC Pool resulting from any error in any of such tax or
information returns resulting from errors in the preparation of such returns
caused by the negligence, willful misconduct or bad faith of the Paying Agent.
Each indemnified party shall immediately notify the indemnifying party or
parties of the existence of a claim for indemnification under this Section
12.1(e), and provide the indemnifying party or parties, at the expense of such
indemnifying party or parties, an opportunity to contest the tax or assessment
or expense giving rise to such claim, provided that the failure to give such
notification rights shall not affect the indemnification rights in favor of any
REMIC Pool under this Section 12.1(e). Any such indemnification shall survive
the resignation or termination of the Master Servicer, the Paying Agent or the
Special Servicer, or the termination of this Agreement.
(f) The Paying Agent shall perform on behalf of each REMIC all
reporting and other tax compliance duties that are the responsibility of such
REMIC Pool under the Code, REMIC Provisions, or other compliance guidance issued
by the Internal Revenue Service or any state or local taxing authority. Among
its other duties, the Paying Agent shall provide (i) to the Internal Revenue
Service or other Persons (including, but not limited to, the Transferor of a
Residual Certificate, to a Disqualified Organization or to an agent that has
acquired a Residual Certificate on behalf of a Disqualified Organization) such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any Disqualified Organization and (ii) to
the Certificateholders such information or reports as are required by the Code
or REMIC Provisions.
(g) The Paying Agent shall forward to the Depositor copies of quarterly
and annual REMIC tax returns and Internal Revenue Service Form 1099 information
returns and such other information within the control of the Paying Agent as the
Depositor may reasonably request in writing. Moreover, the Paying Agent shall
forward to each Certificateholder such
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forms and furnish such information within its control as are required by the
Code to be furnished to them, shall prepare and file with the appropriate state
authorities as may to the actual knowledge of a Responsible Officer of the
Paying Agent be required by applicable law and shall prepare and disseminate to
Certificateholders Internal Revenue Service Forms 1099 (or otherwise furnish
information within the control of the Paying Agent) to the extent required by
applicable law. The Paying Agent will make available to any Certificateholder
any tax related information required to be made available to Certificateholders
pursuant to the Code and any regulations thereunder.
(h) The Holder of more than 50% of the Percentage Interests in Class
R-I, Class R-II and Class R-III Certificates, respectively (or of the greatest
percentage of such Class R-I, Class R-II and Class R-III Certificates if no
Holder holds more than 50% thereof), shall be the applicable REMIC's Tax Matters
Person. The duties of the Tax Matters Person for each of the REMIC Pools are
hereby delegated to the Paying Agent and each Residual Certificateholder, by
acceptance of its Residual Certificate, agrees, on behalf of itself and all
successor holders of such Residual Certificate, to such delegation to the Paying
Agent as their agent and attorney in fact. If the Code or applicable regulations
prohibits the Paying Agent from signing any applicable Internal Revenue Service,
court or other administrative documents or from acting as Tax Matters Person (as
an agent or otherwise), the Paying Agent shall take whatever action is necessary
for the signing of such documents and designation of a Tax Matters Person,
including the designation of such Residual Certificateholder. The Paying Agent
shall not be required to expend or risk its own funds or otherwise incur any
other financial liability in the performance of its duties hereunder or in the
exercise of any of its rights or powers (except to the extent of the ordinary
expenses of performing its duties under this Agreement), if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(i) The Trustee, the Paying Agent, the Holders of the Residual
Certificates, the Master Servicer and the Special Servicer shall each exercise
reasonable care, to the extent within its control, and with respect to each of
the Trustee, Paying Agent, the Master Servicer and the Special Servicer, within
the scope of its express duties, and shall each act in accordance with this
Agreement and the REMIC Provisions in order to create and maintain the status of
each REMIC Pool as a REMIC and the Class N Grantor Trust as a grantor trust or,
as appropriate, adopt a plan of complete liquidation with respect to each REMIC
Pool.
(j) The Trustee, the Paying Agent, the Master Servicer, the Special
Servicer, the Fiscal Agent and the Holders of Residual Certificates shall not
take any action or fail to take any action or cause any REMIC Pool to take any
action or fail to take any action if any of such persons knows or could, upon
the exercise of reasonable diligence, know, that, under the REMIC Provisions
such action or failure, as the case may be, could (i) endanger the status of any
REMIC Pool as a REMIC or (ii) result in the imposition of a tax upon any REMIC
Pool (including but not limited to the tax on prohibited transactions as defined
in Code Section 860F(a)(2)) or (iii) endanger the status of the Class N Grantor
Trust unless the Trustee and the Paying Agent have received an Opinion of
Counsel (at the expense of the party seeking to take such action) to the effect
that the contemplated action will not endanger such status or result in the
imposition of such a tax. Any action required under this section which would
result in an unusual or unexpected expense shall be undertaken at the expense of
the party seeking the Trustee, the
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Paying Agent or the Holders of the Residual Certificates to undertake such
action. Under no circumstances may the Trustee vary the assets of the Class N
Grantor Trust so as to take advantage of variations in the market so as to
improve the rate of return of Holders of the Class N Certificates.
(k) In the event that any tax is imposed on any REMIC created
hereunder, including, without limitation, "prohibited transactions" taxes as
defined in Section 860F(a)(2) of the Code, any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, any taxes on
contributions to any REMIC created hereunder after the Startup Day pursuant to
Section 860G(d) of the Code, and any other tax imposed by the Code or any
applicable provisions of state or local tax laws (other than any tax permitted
to be incurred by the Special Servicer pursuant to Section 9.14(e)), such tax,
together with all incidental costs and expenses (including, without limitation,
penalties and reasonable attorneys' fees), shall be charged to and paid by: (i)
the Paying Agent, if such tax arises out of or results from a breach of any of
its obligations under this Agreement; (ii) the Special Servicer, if such tax
arises out of or results from a breach by the Special Servicer of any of its
obligations under this Agreement; (iii) the Master Servicer, if such tax arises
out of or results from a breach by the Master Servicer of any of its obligations
under this Agreement; (iv) the Fiscal Agent, if such tax arises out of or
results from a breach by the Fiscal Agent of any of its obligations under this
Agreement; and (v) the Trust in all other instances. Any tax permitted to be
incurred by the Special Servicer pursuant to Section 9.14(e) shall be charged to
and paid by the Trust from the net income generated on the related REO Property.
Any such amounts payable by the Trust in respect of taxes shall be paid by the
Paying Agent out of amounts on deposit in the Distribution Account.
(l) The Paying Agent and, to the extent that records are maintained by
the Master Servicer or the Special Servicer in the normal course of its
business, the Master Servicer and the Special Servicer shall, for federal income
tax purposes, maintain books and records with respect to each REMIC Pool on a
calendar year and on an accrual basis, and with respect to the Class N Grantor
Trust, on the cash or accrual method and so as to enable reporting to Holders of
Class N Certificates based on their annual accounting period. Notwithstanding
anything to the contrary contained herein, except to the extent provided
otherwise in the Mortgage Loans or in the Mortgages, all amounts collected on
the Mortgage Loans shall, for federal income tax purposes, be allocated first to
interest due and payable on the Mortgage Loans (including interest on overdue
interest, other than additional interest at a penalty rate payable following a
default). The books and records must be sufficient concerning the nature and
amount of each REMIC Pool's investments to show that such REMIC Pool has
complied with the REMIC Provisions.
(m) Neither the Trustee, the Paying Agent, the Master Servicer nor the
Special Servicer shall enter into any arrangement by which any REMIC Pool will
receive a fee or other compensation for services.
(n) In order to enable the Paying Agent to perform its duties as set
forth herein, the Depositor shall provide, or cause to be provided, to the
Paying Agent within ten (10) days after the Closing Date all information or data
that the Paying Agent reasonably determines to be relevant for tax purposes on
the valuations and offering prices of the Certificates, including, without
limitation, the yield, prepayment assumption, issue prices and projected cash
flows of the Certificates, as applicable, and the projected cash flows of the
Mortgage Loans. Thereafter,
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the Depositor shall provide to the Paying Agent or its designee, promptly upon
request therefor, any such additional information or data within the Depositor's
possession or knowledge that the Paying Agent may, from time to time, reasonably
request in order to enable the Paying Agent to perform its duties as set forth
herein. The Paying Agent is hereby directed to use any and all such information
or data provided by the Depositor in the preparation of all federal and state
income or franchise tax and information returns and reports for each REMIC Pool
to Certificateholders as required herein. The Depositor hereby indemnifies the
Trustee, the Paying Agent, the Fiscal Agent, and each REMIC Pool for any losses,
liabilities, damages, claims, expenses (including attorneys' fees) or
assessments against the Trustee, the Paying Agent, the Fiscal Agent and each
REMIC Pool arising from any errors or miscalculations of the Paying Agent
pursuant to this Section that result from any failure of the Depositor to
provide, or to cause to be provided, accurate information or data to the Paying
Agent (but not resulting from the methodology employed by the Paying Agent) on a
timely basis and such indemnification shall survive the termination of this
Agreement and the termination or resignation of the Paying Agent and the Fiscal
Agent.
The Paying Agent agrees that all such information or data so obtained
by it are to be regarded as confidential information and agrees that it shall
use its best reasonable efforts to retain in confidence, and shall ensure that
its officers, employees and representatives retain in confidence, and shall not
disclose, without the prior written consent of the Depositor, any or all of such
information or data, or make any use whatsoever (other than for the purposes
contemplated by this Agreement) of any such information or data without the
prior written consent of the Depositor, unless such information is generally
available to the public (other than as a result of a breach of this Section
12.1(n)) or is required by law or applicable regulations to be disclosed or is
disclosed (i) to independent auditors and accountants, counsel and other
professional advisers of the Paying Agent and its parent, or (ii) in connection
with its rights and obligations under this Agreement.
(o) At all times as may be required by the Code, the Master Servicer
will to the extent within its control and the scope of its duties more
specifically set forth herein, maintain substantially all of the assets of REMIC
I as "qualified mortgages" as defined in Section 860G(a)(3) of the Code and
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(p) For the purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations, the "latest possible maturity date" for each Class of Certificates
representing a regular interest in REMIC III, for each Class of REMIC I Regular
Interests and for each Class of REMIC II Regular Interests is the Rated Final
Distribution Date; provided that the "latest possible maturity date" for the
Class X-2 Certificates is the Distribution Date in March 2009.
SECTION 12.2 PROHIBITED TRANSACTIONS AND ACTIVITIES. Neither the
Trustee, the Paying Agent, the Master Servicer nor the Special Servicer shall
permit the sale, disposition or substitution of any of the Mortgage Loans
(except in a disposition pursuant to (i) the foreclosure or default of a
Mortgage Loan, (ii) the bankruptcy or insolvency of any REMIC Pool, (iii) the
termination of any REMIC Pool in a "qualified liquidation" as defined in Section
860F(a)(4) of the Code, or (iv) a substitution pursuant to Article II hereof),
nor acquire any assets for the Trust, except as provided in Article II hereof,
nor sell or dispose of any investments in the Certificate
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Account or Distribution Account for gain, nor accept any contributions to any
REMIC Pool (other than a cash contribution during the 3-month period beginning
on the Startup Day), unless it has received an Opinion of Counsel (at the
expense of the Person requesting such action) to the effect that such
disposition, acquisition, substitution, or acceptance will not (A) affect
adversely the status of any REMIC Pool as a REMIC or of the REMIC Certificates,
other than the Residual Certificates, as the regular interests therein, (B)
affect the distribution of interest or principal on the Certificates, (C) result
in the encumbrance of the assets transferred or assigned to any REMIC Pool
(except pursuant to the provisions of this Agreement) or (D) cause any REMIC
Pool to be subject to a tax on "prohibited transactions" or "prohibited
contributions" or other tax pursuant to the REMIC Provisions.
SECTION 12.3 MODIFICATIONS OF MORTGAGE LOANS. Notwithstanding anything
to the contrary in this Agreement, neither the Trustee, the Paying Agent, the
Master Servicer nor the Special Servicer shall permit any modification of a
Money Term of a Mortgage Loan or a Specially Serviced Mortgage Loan unless (i)
the Trustee, the Special Servicer, Paying Agent and the Master Servicer have
received a Nondisqualification Opinion or a ruling from the Internal Revenue
Service (at the expense of the party making the request that the Master Servicer
or the Special Servicer modify the Mortgage Loan or a Specially Serviced
Mortgage Loan) to the effect that such modification would not be treated as an
exchange pursuant to Section 1001 of the Code (or, if it would be so treated,
would not be treated as a "significant modification" for purposes of Treas. Reg.
Sec. 1.860G-2(B) of the Code) or (ii) such modification meets the requirements
set forth in Sections 8.18 or 9.5.
SECTION 12.4 LIABILITY WITH RESPECT TO CERTAIN TAXES AND LOSS OF REMIC
STATUS. In the event that any REMIC Pool fails to qualify as a REMIC, loses its
status as a REMIC, or incurs state or local taxes, or tax as a result of a
prohibited transaction or prohibited contribution subject to taxation under the
REMIC Provisions due to the negligent performance by either the Trustee or the
Paying Agent of its respective duties and obligations set forth herein, the
Trustee or the Paying Agent, as the case may be, shall be liable to the REMIC
Pools and the Holders of the Residual Certificates for any and all losses,
claims, damages, liabilities or expenses ("Losses") resulting from such
negligence and relating to the Residual Certificates; provided, however, that
the Trustee, or the Paying Agent, as applicable, shall not be liable for any
such Losses attributable to the action or inaction of the Master Servicer, the
Special Servicer, the Trustee (with respect to the Paying Agent), the Paying
Agent (with respect to the Trustee), the Depositor or the Holders of such
Residual Certificates nor for any such Losses resulting from any actions or
failure to act based upon reliance on an Opinion of Counsel or from
misinformation provided by the Master Servicer, the Special Servicer, the
Trustee (with respect to the Paying Agent), the Paying Agent (with respect to
the Trustee), the Depositor or such Holders of the Residual Certificates on
which the Trustee or the Paying Agent, as the case may be, has relied. The
foregoing shall not be deemed to limit or restrict the rights and remedies of
the Holders of the Residual Certificates now or hereafter existing at law or in
equity. The Trustee or the Paying Agent shall be entitled to intervene in any
litigation in connection with the foregoing and to maintain control over its
defense.
SECTION 12.5 GRANTOR TRUST REPORTING. The parties intend that the
portions of the Trust consisting of the Class N Grantor Trust shall constitute,
and that the affairs of the Trust
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(exclusive of the REMIC Pools) shall be conducted so as to qualify such portion
as, a "grantor trust" under the Code, and the provisions hereof shall be
interpreted consistently with this intention. In furtherance of such intention,
the Paying Agent shall furnish or cause to be furnished to the Class N
Certificateholders and shall file, or cause to be filed with the Internal
Revenue Service, together with Form 1041 or such other form as may be
applicable, information returns with respect to income relating to their shares
of the income and expenses of the Class N Grantor Trust, at the time or times
and in the manner required by the Code.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1 BINDING NATURE OF AGREEMENT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
SECTION 13.2 ENTIRE AGREEMENT. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous agreements,
understandings, inducements and conditions, express or implied, oral or written,
of any nature whatsoever with respect to the subject matter hereof. The express
terms hereof control and supersede any course of performance or usage of the
trade inconsistent with any of the terms hereof.
SECTION 13.3 AMENDMENT.
(a) This Agreement may be amended from time to time by the parties
hereto, without notice to or the consent of any of the Holders, (i) to cure any
ambiguity, (ii) to cause the provisions herein to conform to or be consistent
with or in furtherance of the statements made with respect to the Certificates,
the Trust or this Agreement in the Private Placement Memorandum, the Preliminary
Prospectus Supplement, the Final Prospectus Supplement or the Prospectus, or to
correct or supplement any provision herein which may be inconsistent with any
other provisions herein, (iii) to amend any provision hereof to the extent
necessary or desirable to maintain the status of each REMIC Pool as a REMIC (or
the interest represented by the Class N Grantor Trust Interest as a grantor
trust) for the purposes of federal income tax law (or comparable provisions of
state income tax law), (iv) to make any other provisions with respect to matters
or questions arising under or with respect to this Agreement not inconsistent
with the provisions hereof, (v) to modify, add to or eliminate the provisions of
Article III relating to transfers of Residual Certificates, (vi) to amend any
provision herein to the extent necessary or desirable to list the Certificates
on a stock exchange, including, without limitation, the appointment of one or
more sub-paying agents and the requirement that certain information be delivered
to such sub-paying agents or (vii) to make any other amendment which does not
adversely affect in any material respect the interests of any Certificateholder
(unless such Certificateholder consents). No such amendment effected pursuant to
clause (i), (ii) or (iv) of the preceding sentence shall (A) adversely affect in
any material respect the interests of any Holder not consenting thereto without
the consent of 100% of the Certificateholders or (B) adversely affect the status
of any REMIC Pool as a REMIC (or the Class N Grantor Trust as a grantor trust).
Prior to entering into any amendment without the consent of Holders pursuant to
this
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paragraph, the Trustee may require an Opinion of Counsel and a
Nondisqualification Opinion (in the case of clauses (i), (ii) and (iii), at the
expense of the Depositor, and otherwise at the expense of the party requesting
such amendment, except that if the Trustee requests such amendment, such
amendment shall be at the expense of the Depositor, if the Depositor consents),
to the effect that such amendment is permitted under this paragraph. Any such
amendment shall be deemed not to adversely affect in any material economic
respect any Holder if the Trustee receives a Rating Agency Confirmation from
each Rating Agency (and any Opinion of Counsel requested by the Trustee in
connection with any such amendment may rely expressly on such confirmation as
the basis therefor).
(b) This Agreement may also be amended from time to time by the
agreement of the parties hereto (without the consent of the Certificateholders)
and with the written confirmation of the Rating Agencies that such amendment
would not cause the ratings on any Class of Certificates to be qualified,
withdrawn or downgraded; provided, however, that such amendment may not effect
any of the items set forth in clauses (i) through (iv) of the proviso in
paragraph (c) of this Section 13.3. The Trustee may request, at its option, to
receive a Nondisqualification Opinion and an Opinion of Counsel that any
amendment pursuant to this Section 13.3(b) is permitted by this Agreement at the
expense of the party requesting the amendment.
(c) This Agreement may also be amended from time to time by the parties
with the consent of the Holders of not less than 51% of the Aggregate
Certificate Balance of the Certificates then outstanding, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders; provided that no such amendment may (i) reduce in any manner the amount
of, or delay the timing of the distributions required to be made on any
Certificate without the consent of the Holder of such Certificate, (ii) reduce
the aforesaid percentages of Aggregate Certificate Percentage or Certificate
Balance, the Holders of which are required to consent to any such amendment
without the consent of all the Holders of each Class of Certificates affected
thereby, (iii) no such amendment shall eliminate the Master Servicer's, the
Trustee's or the Fiscal Agent's obligation to Advance or alter the Servicing
Standard except as may be necessary or desirable to comply with the REMIC
Provisions or (iv) adversely affect the status of any REMIC Pool as a REMIC for
federal income tax purposes (as evidenced by a Nondisqualification Opinion) or
the Class N Grantor Trust as a grantor trust, without the consent of 100% of the
Certificateholders (including the Class R-I, Class R-II and Class R-III
Certificateholders); provided that no such amendment may modify Section 8.18 of
this Agreement without Rating Agency Confirmation. The Trustee may request, at
its option, to receive a Nondisqualification Opinion and an Opinion of Counsel
that any amendment pursuant to this Section 13.3(c) is permitted by this
Agreement at the expense of the party requesting the amendment.
(d) The costs and expenses associated with any such amendment shall be
borne by the Depositor in the case the Trustee is the party requesting such
amendment or if pursuant to clauses (i), (ii) and (iii) of Section 13.3(a). In
all other cases, the costs and expenses shall be borne by the party requesting
the amendment.
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(e) Promptly after the execution of any such amendment, the Trustee
shall furnish written notification of the substance of such amendment to each
Holder, the Depositor and to the Rating Agencies.
(f) It shall not be necessary for the consent of Holders under this
Section 13.3 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be in the affirmative and in writing and
shall be subject to such reasonable regulations as the Trustee may prescribe.
(g) Notwithstanding anything to the contrary contained in this Section
13.3, the parties hereto agree that this Agreement may not be amended in any
manner that is reasonably likely to have an adverse effect on any Primary
Servicer without first obtaining the written consent of such Primary Servicer.
(h) Notwithstanding the fact that the provisions in Section 13.3(c)
would otherwise apply, with respect to any amendment that significantly modifies
the permitted activities of the Trustee, any Primary Servicer, the Master
Servicer or the Special Servicer, any Certificate beneficially owned by a Seller
or any of its Affiliates shall be deemed not to be outstanding (and shall not be
considered when determining the percentage of Certificateholders consenting or
when calculating the total number of Certificates entitled to consent) for
purposes of determining if the requisite consents of Certificateholders under
this Section 13.3 have been obtained.
SECTION 13.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN NEW YORK.
SECTION 13.5 NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given when
received by (A) in the case of the Depositor, Bear Xxxxxxx Commercial Mortgage
Securities Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: J.
Xxxxxxxxxxx Xxxxxxx, Senior Managing Director, Commercial Mortgage Department,
with copies to the attention of Xxxxxx X. Xxxxxxxxx, Xx., Managing Director,
Legal Department; (B) in the case of the Trustee and the Fiscal Agent at the
Corporate Trust Office; (C) in the case of the Master Servicer, Xxxxx Fargo
Bank, National Association, 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Commercial Mortgage Servicing, with a copy to
Xxxxxx X. Xxxxxxx, Esq., Xxxxx Fargo Bank, National Association, 000 Xxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000; (D) in the case of the
Special Servicer, GMAC Commercial Mortgage Corporation, 000 Xxxxxxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx Bieber (with a
copy to General Counsel at such address); (E) in the case of Principal,
Principal Capital Management, LLC, 000 Xxxxx Xxxxxx, Xxx Xxxxxx Xxxx 00000,
Attention: Xxxxxxx Xxxxxx, with a copy to Xxxxx Xxxxxxxx, Esq.; (F) in the case
of BSF, Bear, Xxxxxxx Funding, Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: J. Xxxxxxxxxxx Xxxxxxx, Senior Managing Director,
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Commercial Mortgage Department, with copies to the attention of Xxxxxx X.
Xxxxxxxxx, Xx., Managing Director, Legal Department; (G) in the case of MSDWMC,
Xxxxxx Xxxxxxx Xxxx Xxxxxx Mortgage Capital Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxx Xxxxxxx, with a copy to: General Counsel; (H) in
the case of the initial Operating Adviser, GMAC Institutional Advisors, LLC,
Attention: Xxxxx Xxxx, 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx, 00000; and (I) in the case of the Paying Agent, Xxxxx Fargo Bank
Minnesota, National Association, 00000 Xxxxxx Xxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx
00000-0000, Attention: Corporate Trust Services (CMBS) Bear Xxxxxxx Commercial
Mortgage Securities Inc., Series 2002-TOP6, or as to each party such other
address as may hereafter be furnished by such party to the other parties in
writing. Any notice required or permitted to be mailed to a Holder shall be
given by first class mail, postage prepaid, at the address of such Holder as
shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Holder receives such notice.
SECTION 13.6 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
SECTION 13.7 INDULGENCES; NO WAIVERS. Neither the failure nor any delay
on the part of a party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
SECTION 13.8 HEADINGS NOT TO AFFECT INTERPRETATION. The headings
contained in this Agreement are for convenience of reference only, and shall not
be used in the interpretation hereof.
SECTION 13.9 BENEFITS OF AGREEMENT. Nothing in this Agreement or in the
Certificates, express or implied, shall give to any Person, other than the
parties to this Agreement (including any Primary Servicer to the extent
applicable to such Primary Servicer) and their successors hereunder and the
Holders of the Certificates, any benefit or any legal or equitable right, power,
remedy or claim under this Agreement; provided, however, that the Mortgagors set
forth on Schedule VIII hereto are intended third-party beneficiaries of the
fifth and sixth paragraph of Section 2.3(a) and the holder of each B Note, if
any, is an intended third-party beneficiary in respect of the rights afforded it
hereunder.
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SECTION 13.10 SPECIAL NOTICES TO THE RATING AGENCIES.
(a) The Trustee shall give prompt notice to the Rating Agencies,
Special Servicer and the Operating Adviser of the occurrence of any of the
following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section 13.3
hereof;
(ii) the Interim Certification and the Final Certification
required pursuant to Section 2.2 hereof;
(iii) notice of the repurchase of any Mortgage Loan or REO
Mortgage Loan pursuant to Section 2.3(a) hereof;
(iv) any resignation of the Master Servicer, Special Servicer,
the Paying Agent, the Operating Adviser or the Trustee pursuant to this
Agreement;
(v) the appointment of any successor to the Master Servicer,
the Fiscal Agent, the Trustee, the Paying Agent, the Operating Adviser or the
Special Servicer pursuant to Section 7.7, 7.14 or 9.37 hereof;
(vi) waiver of a due-on-sale clause as provided in Section
8.7;
(vii) waiver of a prohibition on subordinate liens on the
Mortgaged Properties;
(viii) the making of a final payment pursuant to Section 10.3
hereof;
(ix) a Servicing Transfer Event; and
(x) an Event of Default.
(b) All notices to the Rating Agencies shall be in writing and sent by
first class mail, telecopy or overnight courier, as follows:
If to Moody's, to:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Structured Finance Commercial Real Estate
Monitoring
If to S&P, to:
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
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Fax: (000) 000-0000
Attention: Commercial Mortgage Surveillance Manager
or at such address as shall be provided in writing to the Depositor by
such Rating Agency.
(c) The Trustee, or in the case of clauses (i) and (ii), the successor
trustee shall give prompt notice to the Rating Agencies of the occurrence of any
of the following events:
(i) the resignation or removal of the Trustee pursuant to
Section 7.6; or
(ii) the appointment of a successor trustee pursuant to
Section 7.7; or
(iii) the appointment of a successor Operating Adviser
pursuant to Section 9.37.
(d) The Master Servicer shall deliver to the Rating Agencies and the
Depositor any other information as reasonably requested by the Rating Agencies
and the Depositor, and shall deliver to the Primary Servicer and the Special
Servicer each of the reports required to be delivered by the Master Servicer to
the Primary Servicer and the Special Servicer pursuant to the terms of this
Agreement. The Trustee, the Paying Agent and the Special Servicer shall deliver
to the Rating Agencies and the Depositor any information as reasonably requested
by the Rating Agencies and Depositor, as the case may be.
(e) Any notice or other document required to be delivered or mailed by
the Depositor, Master Servicer, Paying Agent or Trustee shall be given by such
parties, respectively, on a best efforts basis and only as a matter of courtesy
and accommodation to the Rating Agencies, unless otherwise specifically required
herein, and such parties, respectively, shall have no liability for failure to
deliver any such notice or document to the Rating Agencies.
SECTION 13.11 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, and all of
which together shall constitute one and the same instrument.
SECTION 13.12 INTENTION OF PARTIES. It is the express intent of the
parties hereto that the conveyance of the Mortgage Loans and related rights and
property to the Trustee, for the benefit of the Certificateholders, by the
Depositor as provided in Section 2.1 be, and be construed as, an absolute sale
of the Mortgage Loans and related property. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by the Depositor to the Trustee to secure a debt or other
obligation of the Depositor. However, in the event that, notwithstanding the
intent of the parties, the Mortgage Loans or any related property is held to be
the property of the Depositor, or if for any other reason this Agreement is held
or deemed to create a security interest in the Mortgage Loans or any related
property, then this Agreement shall be deemed to be a security agreement; and
the conveyance provided for in Section 2.1 shall be deemed to be a grant by the
Depositor to the
-240-
Trustee, for the benefit of the Certificateholders, of a security interest in
all of the Depositor's right, title, and interest, whether now owned or
hereafter acquired, in and to:
(i) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit and investment property consisting of,
arising from or relating to any of the property described in clauses (1)-(4)
below: (1) the Mortgage Loans, including the related Mortgage Notes, Mortgages,
security agreements, and title, hazard and other insurance policies identified
on the Mortgage Loan Schedule, including all Qualified Substitute Mortgage
Loans, all distributions with respect thereto payable on and after the Cut-Off
Date, and the Mortgage Files; (2) the Distribution Account, all REO Accounts,
and the Certificate Account, including all property therein and all income from
the investment of funds therein (including any accrued discount realized on
liquidation of any investment purchased at a discount); (3) the REMIC I Regular
Interests and the REMIC II Regular Interests; and (4) the Mortgage Loan Purchase
Agreements;
(ii) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit, investment property, and other rights
arising from or by virtue of the disposition of, or collections with respect to,
or insurance proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in clause (A) above
(including any accrued discount realized on liquidation of any investment
purchased at a discount); and
All cash and non-cash proceeds of the collateral described in clauses
(i) and (ii) above.
The possession by the Trustee of the Mortgage Notes, the Mortgages and
such other goods, letters of credit, advices of credit, instruments, money,
documents, chattel paper or certificated securities shall be deemed to be
possession by the secured party or possession by a purchaser for purposes of
perfecting the security interest pursuant to the Uniform Commercial Code
(including, without limitation, Sections 9-115 and 9-305 thereof) as in force in
the relevant jurisdiction.
Notifications to Persons holding such property, and acknowledgments,
receipts or confirmations from Persons holding such property, shall be deemed to
be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or persons holding for, the
Trustee, as applicable, for the purpose of perfecting such security interest
under applicable law.
The Depositor and, at the Depositor's direction, the Master Servicer
and the Trustee, shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the property described above, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of the Agreement. The Master Servicer shall file, at the expense of the Trust as
an Additional Trust Expense all filings necessary to maintain the effectiveness
of any original filings necessary under the Uniform Commercial Code as in effect
in any jurisdiction to perfect the Trustee's
-241-
security interest in such property, including without limitation (i)
continuation statements, and (ii) such other statements as may be occasioned by
any transfer of any interest of the Master Servicer or the Depositor in such
property. In connection herewith, the Trustee shall have all of the rights and
remedies of a secured party and creditor under the Uniform Commercial Code as in
force in the relevant jurisdiction.
SECTION 13.13 RECORDATION OF AGREEMENT. This Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere. Such recordation, if any, shall be
effected by the Master Servicer at the expense of the Trust as an Additional
Trust Expense, but only upon direction of the Depositor accompanied by an
Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders of the Trust.
SECTION 13.14 RATING AGENCY MONITORING FEES. The parties hereto
acknowledge that on the Closing Date the Sellers will pay the ongoing monitoring
fees of the Rating Agencies relating to the rating of the Certificates and that
no monitoring fees are payable subsequent to the Closing Date in respect of the
rating of the Certificates. The Master Servicer shall not be required to pay any
such fees or any fees charged for any Rating Agency Confirmation (except any
confirmation required under Section 8.22, Section 8.23 or in connection with a
termination and replacement of the Master Servicer following an Event of Default
of the Master Servicer).
SECTION 13.15 ACKNOWLEDGEMENT BY PRIMARY SERVICER. The Primary Servicer
agrees, to the extent applicable to such Primary Servicer and the Mortgage Loans
serviced by such Primary Servicer, to be bound by the terms of Sections 5.1(g),
8.3, 8.4, 8.7, 8.10, 8.18 and 8.25(d) of this Agreement.
-242-
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent, the Certificate Registrar, the
Authenticating Agent and the Fiscal Agent have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day and
year first above written.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.,
as Depositor
By:
----------------------------------------------
Name:
Title:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer
By:
----------------------------------------------
Name:
Title:
GMAC COMMERCIAL MORTGAGE CORPORATION,
as Special Servicer
By:
----------------------------------------------
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------------------
Name:
Title:
-243-
ABN AMRO BANK N.V., as Fiscal Agent
By:
----------------------------------------------
Name:
Title:
By:
----------------------------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Paying Agent and Certificate Registrar
By:
----------------------------------------------
Name:
Title:
PRINCIPAL CAPITAL MANAGEMENT, LLC, acting solely
in its capacity as Primary Servicer with respect
to the sections referred to in Section 13.15 of
the Agreement
By:
----------------------------------------------
Name:
Title:
By:
----------------------------------------------
Name:
Title:
-244-
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this __ day of March, 2002, before me, a notary public in and for
said State, personally appeared _____________, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person who executed the
within instrument as Vice President on behalf of Bear Xxxxxxx Commercial
Mortgage Securities Inc., and acknowledged to me that such corporation executed
the within instrument pursuant to its by-laws or a resolution of its Board of
Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
--------------------------------
Notary Public
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On this ___ day of March, 2002, before me, a notary public in and for
said State, personally appeared ____________, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person who executed the
within instrument as Vice President of ___________________, and acknowledged to
me that such corporation executed the within instrument pursuant to its by-laws
or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
--------------------------------
Notary Public
-2-
STATE OF )
) ss.:
COUNTY OF )
On the ______ day of March, 2002, before me, a notary public in and for
said State, personally appeared ___________________ known to me to be a of
_______________, one of the entities that executed the within instrument, and
acknowledged to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
--------------------------------
Notary Public
-0-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of March, 2002, before me, a notary public in and for
said State, personally appeared __________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Vice President on behalf of ____________, and
acknowledged to me that such nationally chartered bank executed the within
instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
--------------------------------
Notary Public
-0-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of March, 2002, before me, a notary public in and for
said State, personally appeared __________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Vice President on behalf of _______________,
and acknowledged to me that such nationally chartered bank executed the within
instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
--------------------------------
Notary Public
-0-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of March, 2002, before me, a notary public in and for
said State, personally appeared __________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Vice President on behalf of ________________
and acknowledged to me that such nationally chartered bank executed the within
instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
--------------------------------
Notary Public
-0-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of March, 2002, before me, a notary public in and for
said State, personally appeared __________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Vice President on behalf of
___________________ and acknowledged to me that such nationally chartered bank
executed the within instrument pursuant to its by-laws or a resolution of its
Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.,
AS DEPOSITOR,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS MASTER SERVICER,
GMAC COMMERCIAL MORTGAGE CORPORATION,
AS SPECIAL SERVICER,
LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
AS PAYING AGENT AND CERTIFICATE REGISTRAR
AND
ABN AMRO BANK N.V.,
AS FISCAL AGENT
-------------------------------------------
EXHIBITS AND SCHEDULES TO
POOLING AND SERVICING AGREEMENT
DATED AS OF MARCH 1, 2002
-------------------------------------------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-TOP6
EXHIBIT A-1
[FORM OF CLASS A-1 CERTIFICATE]
THIS CLASS A-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-1 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2002-TOP6
INITIAL PASS-THROUGH RATE: 5.92% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF MARCH 1, 2002
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CUT-OFF DATE: MARCH 1, 2002 CORPORATION
CLOSING DATE: MARCH 21, 2002 PAYING AGENT: XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 15, 2002
PRIMARY SERVICER: PRINCIPAL CAPITAL MANAGEMENT, LLC
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-1
CERTIFICATES AS OF THE CLOSING DATE: $304,970,000 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS A-1 CERTIFICATE AS OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLOSING DATE: $304,970,000
CUSIP XX. 00000 XX X0
Xx. X-0-0
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-1 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-1 Certificates. The Certificates are designated as the
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2002-TOP6 and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling
and Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicer, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Certificate
Registrar
By: _________________________________
AUTHORIZED SIGNATORY
Dated: March 21, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By: _________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
-------------------------------------------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
-------------------------------------------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to
this assignment must
correspond with the name
as written upon the face
of this Certificate in
every particular without
alteration or enlargement
or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national
securities exchange. Notarized or witnessed
signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-2
[FORM OF CLASS A-2 CERTIFICATE]
THIS CLASS A-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-3 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2002-TOP6
INITIAL PASS-THROUGH RATE: 6.46% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF MARCH 1, 2002
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CUT-OFF DATE: MARCH 1, 2002 CORPORATION
CLOSING DATE: MARCH 21, 2002 PAYING AGENT: XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 15, 2002
PRIMARY SERVICER: PRINCIPAL CAPITAL MANAGEMENT,
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-2 LLC
CERTIFICATES AS OF THE CLOSING DATE: $647,947,000
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS A-2 CERTIFICATE AS OF THE
CLOSING DATE: $200,000,000 FISCAL AGENT: ABN AMRO BANK X.X.
Xx. X-0-0 XXXXX XX. 00000 FJ C3
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-2 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-2 Certificates. The Certificates are designated as the
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2002-TOP6 and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicer, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _____________________________________
AUTHORIZED SIGNATORY
Dated: March 21, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, AUTHENTICATING AGENT
By: _____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
-------------------------------------------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
-------------------------------------------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to
this assignment must
correspond with the name
as written upon the face
of this Certificate in
every particular without
alteration or enlargement
or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-3
[RESERVED]
EXHIBIT A-4
[RESERVED]
EXHIBIT A-5
[FORM OF CLASS B CERTIFICATE]
THIS CLASS B CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE
CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS B CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2002-TOP6
INITIAL PASS-THROUGH RATE 6.62% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF MARCH 1, 2002
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CUT-OFF DATE: MARCH 1, 2002 CORPORATION
CLOSING DATE: MARCH 21, 2002 PAYING AGENT: XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 15, 2002
PRIMARY SERVICER: PRINCIPAL CAPITAL MANAGEMENT,
AGGREGATE CERTIFICATE BALANCE OF THE CLASS B CERTIFICATES LLC
AS OF THE CLOSING DATE: $30,739,000
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS B CERTIFICATE AS OF THE
CLOSING DATE: $30,739,000 FISCAL AGENT: ABN AMRO BANK N.V.
No. B-1 CUSIP NO. 07383 FJ D1
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class B Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class B Certificates. The Certificates are designated as the Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2002-TOP6 and are issued in the Classes specified in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicer, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ____________________________________
AUTHORIZED SIGNATORY
Dated: March 21, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, AUTHENTICATING AGENT
By: ___________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
-------------------------------------------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
-------------------------------------------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to
this assignment must
correspond with the name
as written upon the face
of this Certificate in
every particular without
alteration or enlargement
or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-6
[FORM OF CLASS C CERTIFICATE]
THIS CLASS C CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE
CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS C CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2002-TOP6
INITIAL PASS-THROUGH RATE: 6.75% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF MARCH 1, 2002
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CUT-OFF DATE: MARCH 1, 2002 CORPORATION
CLOSING DATE: MARCH 21, 2002 PAYING AGENT: XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 15, 2002
PRIMARY SERVICER: PRINCIPAL CAPITAL MANAGEMENT,
AGGREGATE CERTIFICATE BALANCE OF THE CLASS C CERTIFICATES LLC
AS OF THE CLOSING DATE: $30,739,000
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS C CERTIFICATE AS OF THE
CLOSING DATE: $30,739,000 FISCAL AGENT: ABN AMRO BANK X.X.
Xx. X-0 XXXXX XX. 00000 FJ E9
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class C Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class C Certificates. The Certificates are designated as the Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2002-TOP6 and are issued in the Classes specified in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicer, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: March 21, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, AUTHENTICATING AGENT
By: ___________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
-------------------------------------------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
-------------------------------------------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to
this assignment must
correspond with the name
as written upon the face
of this Certificate in
every particular without
alteration or enlargement
or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-7
[FORM OF CLASS D CERTIFICATE]
THIS CLASS D CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS D CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2002-TOP6
INITIAL PASS-THROUGH RATE: 6.88% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF MARCH 1, 2002
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CUT-OFF DATE: MARCH 1, 2002 CORPORATION
CLOSING DATE: MARCH 21, 2002 PAYING AGENT: XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 15, 2002
PRIMARY SERVICER: PRINCIPAL CAPITAL MANAGEMENT,
AGGREGATE CERTIFICATE BALANCE OF THE CLASS D CERTIFICATES LLC
AS OF THE CLOSING DATE: $12,575,000
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS D CERTIFICATE AS OF THE
CLOSING DATE: $12,575,000 (SUBJECT TO SCHEDULE OF EXCHANGES FISCAL AGENT: ABN AMRO BANK N.V.
ATTACHED)
CUSIP NO: 07383 FJ H2
No. D-1
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class D Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class D Certificates. The Certificates are designated
as the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2002-TOP6 and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicer, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ____________________________________
AUTHORIZED SIGNATORY
Dated: March 21, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, AUTHENTICATING AGENT
By: ___________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
-------------------------------------------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
-------------------------------------------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _________________________
NOTICE: The signature to
this assignment must
correspond with the name
as written upon the face
of this Certificate in
every particular without
alteration or enlargement
or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-8
[FORM OF CLASS E CERTIFICATE]
THIS CLASS E CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS E CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2002-TOP6
INITIAL PASS-THROUGH RATE: 7.29% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF MARCH 1, 2002
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CUT-OFF DATE: MARCH 1, 2002 CORPORATION
CLOSING DATE: MARCH 21, 2002 PAYING AGENT: XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 15, 2002
PRIMARY SERVICER: PRINCIPAL CAPITAL MANAGEMENT,
AGGREGATE CERTIFICATE BALANCE OF THE CLASS E CERTIFICATES LLC
AS OF THE CLOSING DATE: $25,150,000
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS E CERTIFICATE AS OF THE
CLOSING DATE: $25,150,000 (SUBJECT TO SCHEDULE OF EXCHANGES FISCAL AGENT: ABN AMRO BANK N.V.
ATTACHED)
CUSIP NO. 07383 FJ J8
No. E-1
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class E Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class E Certificates. The Certificates are designated
as the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2002-TOP6 and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicer, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _________________________________
AUTHORIZED SIGNATORY
Dated: March 21, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, AUTHENTICATING AGENT
By: ________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
-------------------------------------------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
-------------------------------------------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to
this assignment must
correspond with the name
as written upon the face
of this Certificate in
every particular without
alteration or enlargement
or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-9
[FORM OF CLASS F CERTIFICATE]
THIS CLASS F CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS F CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2002-TOP6
INITIAL PASS-THROUGH RATE: 7.29% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF MARCH 1, 2002
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CUT-OFF DATE: MARCH 1, 2002 CORPORATION
CLOSING DATE: MARCH 21, 2002 PAYING AGENT: XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 15, 2002
PRIMARY SERVICER: PRINCIPAL CAPITAL MANAGEMENT,
AGGREGATE CERTIFICATE BALANCE OF THE CLASS F CERTIFICATES LLC
AS OF THE CLOSING DATE: $9,780,000
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS F CERTIFICATE AS OF THE
CLOSING DATE: $9,780,000 (SUBJECT TO SCHEDULE OF EXCHANGES FISCAL AGENT: ABN AMRO BANK N.V.
ATTACHED)
CUSIP NO. 07383 FJ K5
No. F-1
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class F Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class F Certificates. The Certificates are designated
as the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2002-TOP6 and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicer, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: March 21, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, AUTHENTICATING AGENT
By: __________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
-------------------------------------------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
-------------------------------------------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to
this assignment must
correspond with the name
as written upon the face
of this Certificate in
every particular without
alteration or enlargement
or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-10
[FORM OF CLASS G CERTIFICATE]
THIS CLASS G CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS G CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2002-TOP6
INITIAL PASS-THROUGH RATE: 6.00% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF MARCH 1, 2002
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CUT-OFF DATE: MARCH 1, 2002 CORPORATION
CLOSING DATE: MARCH 21, 2002 PAYING AGENT: XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 15, 2002
PRIMARY SERVICER: PRINCIPAL CAPITAL MANAGEMENT,
AGGREGATE CERTIFICATE BALANCE OF THE CLASS G CERTIFICATES LLC
AS OF THE CLOSING DATE: $12,575,000
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS G CERTIFICATE AS OF THE
CLOSING DATE: $12,575,000 (SUBJECT TO SCHEDULE OF EXCHANGES FISCAL AGENT: ABN AMRO BANK N.V.
ATTACHED)
CUSIP NO. 07383 FJ L3
No. G-1
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class G Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class G Certificates. The Certificates are designated
as the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2002-TOP6 and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicer, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: __________________________________
AUTHORIZED SIGNATORY
Dated: March 21, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, AUTHENTICATING AGENT
By: _________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
-------------------------------------------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
-------------------------------------------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to
this assignment must
correspond with the name
as written upon the face
of this Certificate in
every particular without
alteration or enlargement
or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-11
[FORM OF CLASS H CERTIFICATE]
THIS CLASS H CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS H CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2002-TOP6
INITIAL PASS-THROUGH RATE: 6.00% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF MARCH 1, 2002
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CUT-OFF DATE: MARCH 1, 2002 CORPORATION
CLOSING DATE: MARCH 21, 2002 PAYING AGENT: XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 15, 2002
PRIMARY SERVICER: PRINCIPAL CAPITAL MANAGEMENT,
AGGREGATE CERTIFICATE BALANCE OF THE CLASS H CERTIFICATES LLC
AS OF THE CLOSING DATE: $9,780,000
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS H CERTIFICATE AS OF THE
CLOSING DATE: $9,780,000 (SUBJECT TO SCHEDULE OF EXCHANGES FISCAL AGENT: ABN AMRO BANK N.V.
ATTACHED)
CUSIP XX. 00000 XX X0
Xx. X-0
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class H Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class H Certificates. The Certificates are designated
as the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2002-TOP6 and are issued in the Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicer, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _____________________________________
AUTHORIZED SIGNATORY
Dated: March 21, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, AUTHENTICATING AGENT
By: ____________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
-------------------------------------------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
-------------------------------------------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to
this assignment must
correspond with the name
as written upon the face
of this Certificate in
every particular without
alteration or enlargement
or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-12
[FORM OF CLASS J CERTIFICATE]
THIS CLASS J CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS J CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2002-TOP6
INITIAL PASS-THROUGH RATE: 6.00% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF MARCH 1, 2002
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CUT-OFF DATE: MARCH 1, 2002 CORPORATION
CLOSING DATE: MARCH 21, 2002 PAYING AGENT: XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 15, 2002
PRIMARY SERVICER: PRINCIPAL CAPITAL MANAGEMENT,
AGGREGATE CERTIFICATE BALANCE OF THE CLASS J CERTIFICATES LLC
AS OF THE CLOSING DATE: $8,383,000
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS J CERTIFICATE AS OF THE
CLOSING DATE: $8,383,000 (SUBJECT TO SCHEDULE OF EXCHANGES FISCAL AGENT: ABN AMRO BANK N.V.
ATTACHED)
CUSIP XX. 00000 XX X0
Xx. X-0
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class J Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class J Certificates. The Certificates are designated as the Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2002-TOP6 and are issued in the Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicer, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: __________________________________
AUTHORIZED SIGNATORY
Dated: March 21, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, AUTHENTICATING AGENT
By: _________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
-------------------------------------------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
-------------------------------------------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to
this assignment must
correspond with the name
as written upon the face
of this Certificate in
every particular without
alteration or enlargement
or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-13
[FORM OF CLASS K CERTIFICATE]
THIS CLASS K CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS K CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2002-TOP6
INITIAL PASS-THROUGH RATE: 6.00% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF MARCH 1, 2002
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CUT-OFF DATE: MARCH 1, 2002 CORPORATION
CLOSING DATE: MARCH 21, 2002 PAYING AGENT: XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 15, 2002
PRIMARY SERVICER: PRINCIPAL CAPITAL MANAGEMENT,
AGGREGATE CERTIFICATE BALANCE OF THE CLASS K CERTIFICATES LLC
AS OF THE CLOSING DATE: $5,588,000
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS K CERTIFICATE AS OF THE
CLOSING DATE: $5,588,000 (SUBJECT TO SCHEDULE OF EXCHANGES FISCAL AGENT: ABN AMRO BANK N.V.
ATTACHED)
CUSIP XX. 00000 XX X0
Xx. X-0
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class K Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class K
Certificates. The Certificates are designated as the Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2002-TOP6 and are issued in the Classes as specifically set forth in the Pooling
and Servicing Agreement. The Certificates will evidence in the aggregate 100% of
the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicer, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ____________________________________
AUTHORIZED SIGNATORY
Dated: March 21, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, AUTHENTICATING AGENT
By: ___________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
-------------------------------------------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
-------------------------------------------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to
this assignment must
correspond with the name
as written upon the face
of this Certificate in
every particular without
alteration or enlargement
or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-14
[FORM OF CLASS L CERTIFICATE]
THIS CLASS L CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS L CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2002-TOP6
INITIAL PASS-THROUGH RATE: 6.00% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF MARCH 1, 2002
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CUT-OFF DATE: MARCH 1, 2002 CORPORATION
CLOSING DATE: MARCH 21, 2002 PAYING AGENT: XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 15, 2002
PRIMARY SERVICER: PRINCIPAL CAPITAL MANAGEMENT,
AGGREGATE CERTIFICATE BALANCE OF THE CLASS L CERTIFICATES LLC
AS OF THE CLOSING DATE: $5,588,000
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS L CERTIFICATE AS OF THE
CLOSING DATE: $5,588,000 (SUBJECT TO SCHEDULE OF EXCHANGES FISCAL AGENT: ABN AMRO BANK N.V.
ATTACHED)
CUSIP XX. 00000 XX X0
Xx. X-0
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class L Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class L
Certificates. The Certificates are designated as the Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2002-TOP6 and are issued in the Classes as specifically set forth in the Pooling
and Servicing Agreement. The Certificates will evidence in the aggregate 100% of
the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicer, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Certificate
Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 21, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
---------------------------------------------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
-----------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
-------------------------------------------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
-------------------------------------------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to
this assignment must
correspond with the name
as written upon the face
of this Certificate in
every particular without
alteration or enlargement
or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national
securities exchange. Notarized or witnessed
signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-15
[FORM OF CLASS M CERTIFICATE]
THIS CLASS M CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS M CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2002-TOP6
INITIAL PASS-THROUGH RATE: 6.00% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2002
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CUT-OFF DATE: MARCH 1, 2002 CORPORATION
CLOSING DATE: MARCH 21, 2002 PAYING AGENT: XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 15, 2002
PRIMARY SERVICER: PRINCIPAL CAPITAL
AGGREGATE CERTIFICATE BALANCE OF THE MANAGEMENT, LLC
CLASS M CERTIFICATES AS OF THE CLOSING
DATE: $2,794,000 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS M FISCAL AGENT: ABN AMRO BANK N.V.
CERTIFICATE AS OF THE CLOSING DATE: $2,794,000
(SUBJECT TO SCHEDULE OF EXCHANGES CUSIP NO. 07383 FJ Q2
ATTACHED)
No. M-1
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class M Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), Bear Xxxxxxx Commercial Mortgage Securities
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Paying Agent, the Certificate Registrar, the Master Servicer and the
Special Servicer, a summary of certain of the pertinent provisions of which is
set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class M Certificates. The Certificates are designated as the Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2002-TOP6 and are issued in the Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicer, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Certificate
Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 21, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
-------------------------------------------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
-------------------------------------------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _________________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the face
of this Certificate in every particular without
alteration or enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national
securities exchange. Notarized or witnessed
signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-16
[FORM OF CLASS N CERTIFICATE]
THIS CLASS N CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS N CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2002-TOP6
INITIAL PASS-THROUGH RATE: 6.00% MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2002 SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CORPORATION
CUT-OFF DATE: MARCH 1, 2002
PAYING AGENT: XXXXX FARGO BANK MINNESOTA, NATIONAL
CLOSING DATE: MARCH 21, 2002 ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 15, 2002 PRIMARY SERVICER: PRINCIPAL CAPITAL MANAGEMENT,
LLC
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS N CERTIFICATES AS OF THE CLOSING TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
DATE: $11,184,180
CERTIFICATE BALANCE OF THIS CLASS N FISCAL AGENT: ABN AMRO BANK N.V.
CERTIFICATE AS OF THE CLOSING DATE:
$11,184,180 (SUBJECT TO SCHEDULE OF CUSIP NO. 07383 FJ R0
EXCHANGES ATTACHED)
No. N-1
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class N Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class N Certificates. The Certificates are designated as the Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2002-TOP6 and are issued in the Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicer, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Certificate
Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 21, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
-------------------------------------------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
-------------------------------------------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ ________________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the face
of this Certificate in every particular without
alteration or enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national
securities exchange. Notarized or witnessed
signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-17
[FORM OF CLASS R-I CERTIFICATE]
THIS CLASS R-I CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER
AFFIDAVIT TO THE CERTIFICATE REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE
AGREES TO BE BOUND BY THE TERMS OF THE POOLING AND SERVICING AGREEMENT AND ALL
RESTRICTIONS SET FORTH ON THE FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE
UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR
INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS
A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC,
A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL
UNIT), (B) AN ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED
IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF
THE CODE (UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511
OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR
TELEPHONE COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON
DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO
AS A "DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR
RESIDENT OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY
CREATED OR ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR ANY
POLITICAL SUBDIVISION THEREOF, OR AN ESTATE OR TRUST WHOSE INCOME FROM SOURCES
WITHOUT THE UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED STATES
FEDERAL INCOME TAX PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF
TRADE OR BUSINESS IN THE UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER
REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER
IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER PROHIBITED
TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION
SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON
SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
EACH HOLDER OF A CLASS R-I CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL
BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2002-TOP6
PERCENTAGE INTEREST OF THIS CLASS R-I SPECIAL SERVICER: GMAC COMMERCIAL
CERTIFICATE: 100% MORTGAGE CORPORATION
DATE OF POOLING AND SERVICING AGREEMENT: PAYING AGENT: XXXXX FARGO BANK
AS OF MARCH 1, 2002 MINNESOTA, NATIONAL ASSOCIATION
CUT-OFF DATE: MARCH 1, 2002 PRIMARY SERVICER: PRINCIPAL CAPITAL
MANAGEMENT, LLC
CLOSING DATE: MARCH 21, 2002
TRUSTEE: LASALLE BANK NATIONAL
FIRST DISTRIBUTION DATE: APRIL 15, 2002 ASSOCIATION
MASTER SERVICER: XXXXX FARGO BANK, FISCAL AGENT: ABN AMRO BANK N.V.
NATIONAL ASSOCIATION
NO. R-I-1
CLASS R-I CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT Bear Xxxxxxx Securities Corp. is the registered owner of the
interest evidenced by this Certificate in the Class R-I Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx
Commercial Mortgage Securities Inc. (hereinafter called the "Depositor", which
term includes any successor entity under the Pooling and Servicing Agreement),
the Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer and the
Special Servicer, a summary of certain of the pertinent provisions of which is
set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing the Percentage
Interest in the Class R-I Certificates specified on the face hereof. The
Certificates are designated as Bear Xxxxxxx Commercial Mortgage Securities
Inc.Commercial Mortgage Pass-Through Certificates, Series 2002-TOP6 and are
issued in the Classes as specifically set forth in the Pooling and Servicing
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive
only certain amounts set forth in the Pooling and Servicing Agreement, including
a distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor,
if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicer, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the
later of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Certificate
Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 21, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
-------------------------------------------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
-------------------------------------------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _________________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the face
of this Certificate in every particular without
alteration or enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national
securities exchange. Notarized or witnessed
signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-18
[FORM OF CLASS R-II CERTIFICATE]
THIS CLASS R-II CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-II CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE
REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS
OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE
FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS
ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD OF
DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION
(OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE)
WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON
UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE
COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR RESIDENT
OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR
ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR ANY POLITICAL
SUBDIVISION THEREOF, OR AN ESTATE OR TRUST WHOSE INCOME FROM SOURCES WITHOUT THE
UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF TRADE OR BUSINESS IN
THE UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER REFERRED TO AS A "UNITED
STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED
STATES PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR
TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. NOTWITHSTANDING THE REGISTRATION
IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS
CLASS R-I CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES
PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON,
OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING
AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT
WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY
PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS
ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-I CERTIFICATE BY ACCEPTANCE OF
THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2002-TOP6
PERCENTAGE INTEREST OF THIS CLASS R-II SPECIAL SERVICER: GMAC COMMERCIAL
CERTIFICATE: 100% MORTGAGE CORPORATION
DATE OF POOLING AND SERVICING AGREEMENT: PAYING AGENT: XXXXX FARGO BANK MINNESOTA,
AS OF MARCH 1, 2002 NATIONAL ASSOCIATION
CUT-OFF DATE: MARCH 1, 2002 PRIMARY SERVICER: PRINCIPAL CAPITAL
MANAGEMENT, LLC
CLOSING DATE: MARCH 21, 2002
TRUSTEE: LASALLE BANK NATIONAL
FIRST DISTRIBUTION DATE: APRIL 15, 2002 ASSOCIATION
MASTER SERVICER: XXXXX FARGO BANK, FISCAL AGENT: ABN AMRO BANK N.V.
NATIONAL ASSOCIATION
NO. R-II-1
CLASS R-II CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT Bear Xxxxxxx Securities Corp. is the registered owner of the
interest evidenced by this Certificate in the Class R-II Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx
Commercial Mortgage Securities Inc. (hereinafter called the "Depositor", which
term includes any successor entity under the Pooling and Servicing Agreement),
the Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer and the
Special Servicer, a summary of certain of the pertinent provisions of which is
set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing the Percentage
Interest in the Class R-II Certificates specified on the face hereof. The
Certificates are designated as the Bear Xxxxxxx Commercial Mortgage Securities
Inc.Commercial Mortgage Pass-Through Certificates, Series 2002-TOP6 and are
issued in the Classes as specifically set forth in the Pooling and Servicing
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive
only certain amounts set forth in the Pooling and Servicing Agreement, including
a distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor,
if such Certificateholder will have provided the Paying Agent with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicer, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the
later of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Certificate
Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 21, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-II CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
-------------------------------------------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
-------------------------------------------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _________________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the face
of this Certificate in every particular without
alteration or enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national
securities exchange. Notarized or witnessed
signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-19
[FORM OF CLASS R-III CERTIFICATE]
THIS CLASS R-III CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE
PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE REGISTRAR TO THE EFFECT THAT
(1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE POOLING AND SERVICING
AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE HEREOF, (2) SUCH TRANSFEREE
IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, OR ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY
WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT
FOR FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY ANY SUCH
GOVERNMENTAL UNIT), (B) AN ORGANIZATION (OTHER THAN CERTAIN FARMERS'
COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX
IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX
IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (C) A
RURAL ELECTRIC OR TELEPHONE COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE
(ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING
HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS
NOT A CITIZEN OF OR RESIDENT OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR
OTHER ENTITY CREATED OR ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR
ANY POLITICAL SUBDIVISION THEREOF, OR AN ESTATE OR TRUST WHOSE INCOME FROM
SOURCES WITHOUT THE UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED
STATES FEDERAL INCOME TAX PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT
OF TRADE OR BUSINESS IN THE UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER
REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER
IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER PROHIBITED
TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION
SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON
SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
EACH HOLDER OF A CLASS R-III CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL
BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2002-TOP6
PERCENTAGE INTEREST OF THIS CLASS R-III SPECIAL SERVICER: GMAC COMMERCIAL
CERTIFICATE: 100% MORTGAGE CORPORATION
DATE OF POOLING AND SERVICING AGREEMENT: PAYING AGENT: XXXXX FARGO BANK
AS OF MARCH 1, 2002 MINNESOTA, NATIONAL ASSOCIATION
CUT-OFF DATE: MARCH 1, 2002 PRIMARY SERVICER: PRINCIPAL CAPITAL
MANAGEMENT, LLC
CLOSING DATE: MARCH 21, 2002
TRUSTEE: LASALLE BANK NATIONAL
FIRST DISTRIBUTION DATE: APRIL 15, 2002 ASSOCIATION
MASTER SERVICER: XXXXX FARGO BANK, FISCAL AGENT: ABN AMRO BANK N.V.
NATIONAL ASSOCIATION
NO. R-III-1
CLASS R-III CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT Bear Xxxxxxx Securities Corp. is the registered owner of the
interest evidenced by this Certificate in the Class R-III Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx
Commercial Mortgage Securities Inc. (hereinafter called the "Depositor", which
term includes any successor entity under the Pooling and Servicing Agreement),
the Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer and the
Special Servicer, a summary of certain of the pertinent provisions of which is
set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing the Percentage
Interest in the Class R-III Certificates specified on the face hereof. The
Certificates are designated as the Bear Xxxxxxx Commercial Mortgage Securities
Inc.Commercial Mortgage Pass-Through Certificates, Series 2002-TOP6 and are
issued in the Classes as specifically set forth in the Pooling and Servicing
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive
only certain amounts set forth in the Pooling and Servicing Agreement, including
a distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor,
if such Certificateholder will have provided the Paying Agent with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicer, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the
later of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Certificate
Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 21, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-III CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
-------------------------------------------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
-------------------------------------------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ __________________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the face
of this Certificate in every particular without
alteration or enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national
securities exchange. Notarized or witnessed
signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-20
[FORM OF CLASS X-1 CERTIFICATE]
THIS CLASS X-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS, REALIZED
LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO THE
NOTIONAL AMOUNT OF THIS CLASS X-1 CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT
OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE PAYING
AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2002-TOP6
INITIAL PASS-THROUGH RATE: 0.26% MASTER SERVICER: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
INITIAL NOTIONAL AMOUNT OF THIS CLASS X-1
CERTIFICATE: $1,117,792,180 SPECIAL SERVICER: WELL FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2002 PAYING AGENT: XXXXX FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION
CUT-OFF DATE: MARCH 1, 2002
PRIMARY SERVICER: PRINCIPAL CAPITAL
CLOSING DATE: MARCH 21, 2002 MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: APRIL 15, 2002 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
AGGREGATE NOTIONAL AMOUNT OF THE CLASS
X-1 CERTIFICATES AS OF THE CLOSING DATE: FISCAL AGENT: ABN AMRO BANK N.V.
$1,117,792,180 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED) CUSIP XX. 00000 XX X0
Xx. X-0-0
CLASS X-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class X-1 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor," which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Notional Amount of
this Certificate specified on the face hereof by the initial aggregate Notional
Amount of the Class X-1 Certificates. The Certificates are designated as the
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2002-TOP6 and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out
of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate specified above on the Notional Amount of this Certificate immediately
prior to each Distribution Date. Interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Class X-1 Certificates will be issued in denominations of $100,000 initial
Notional Amount and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicer, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Certificate
Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 21, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
-------------------------------------------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
-------------------------------------------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _________________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the face
of this Certificate in every particular without
alteration or enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national
securities exchange. Notarized or witnessed
signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-21
[FORM OF CLASS X-2 CERTIFICATE]
THIS CLASS X-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS, REALIZED
LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO THE
NOTIONAL AMOUNT OF THIS CLASS X-2 CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT
OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE PAYING
AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2002-TOP6
INITIAL PASS-THROUGH RATE: 0.88% MASTER SERVICER: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
INITIAL NOTIONAL AMOUNT OF THIS CLASS X-2
CERTIFICATE: $886,907,000 SPECIAL SERVICER: WELL FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2002 PAYING AGENT: XXXXX FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION
CUT-OFF DATE: MARCH 1, 2002
PRIMARY SERVICER: PRINCIPAL CAPITAL
CLOSING DATE: MARCH 21, 2002 MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: APRIL 15, 2002 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
AGGREGATE NOTIONAL AMOUNT OF THE CLASS
X-2 CERTIFICATES AS OF THE CLOSING DATE: FISCAL AGENT: ABN AMRO BANK N.V.
$886,907,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED) CUSIP NO: 07383 FJ G4
No. X-2-1
CLASS X-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class X-2 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor," which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Notional Amount of
this Certificate specified on the face hereof by the initial aggregate Notional
Amount of the Class X-2 Certificates. The Certificates are designated as the
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2002-TOP6 and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out
of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate specified above on the Notional Amount of this Certificate immediately
prior to each Distribution Date. Interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Class X-2 Certificates will be issued in denominations of $100,000 initial
Notional Amount and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Master Servicer, the Special Servicer and the Certificate Registrar
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by
notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Certificate
Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 21, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT..............................Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------- ------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
-------------------------------------------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
-------------------------------------------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _________________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the face
of this Certificate in every particular without
alteration or enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial
bank or trust company or by a member firm of the
New York Stock Exchange or another national
securities exchange. Notarized or witnessed
signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
March __, 2002
Bear Xxxxxxx Commercial Mortgage Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Principal Commercial Funding, LLC
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Xxxxx Fargo Bank, National Association
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Bear, Xxxxxxx Funding, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx Xxxx Xxxxxx Mortgage Capital Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2002-TOP6
--------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the
Pooling and Servicing Agreement, the undersigned hereby certifies that, with
respect to each Mortgage Loan listed in the Mortgage Loan Schedule and subject
to the exceptions noted in the schedule of exceptions attached hereto, that: (a)
all documents specified in clause (i) of the definition of "Mortgage File" are
in its possession, (b) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan and (c) each Mortgage Note has
been endorsed as provided in clause (i) of the definition of "Mortgage File" of
the Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
such documents contained in each Mortgage File or any of the Mortgage Loans
identified in the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor
has granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans, the REMIC I Regular Interests, and the REMIC II Regular
Interests.
Capitalized words and phrases used herein and not otherwise
defined herein shall have the respective meanings assigned to them in the
Pooling and Servicing Agreement. This Certificate is subject in all respects to
the terms of said Pooling and Servicing Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
Title:
SCHEDULE OF EXCEPTIONS
EXHIBIT B-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
__________, 2002
Bear Xxxxxxx Commercial Mortgage Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Principal Commercial Funding, LLC
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Xxxxx Fargo Bank, National Association
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Bear, Xxxxxxx Funding, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx Xxxx Xxxxxx Mortgage Capital Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates,
Series 2002-TOP6
---------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the
Pooling and Servicing Agreement, the undersigned hereby certifies that, with
respect to each Mortgage Loan listed in the Mortgage Loan Schedule and subject
to the exceptions noted in the schedule of exceptions attached hereto, that: (a)
all documents required to be included in the Mortgage File pursuant to clauses
(i), (ii), (iv), (v), (vi) and (viii) of the definition of "Mortgage File," and
any documents required to be included in the Mortgage File pursuant to all other
clauses of the definition of "Mortgage File," to the extent known by a
Responsible Officer of the Trustee to be required pursuant to the Pooling and
Servicing Agreement, are in its possession, (b) such documents have been
reviewed by it and have not been materially mutilated, damaged, defaced, torn or
otherwise physically altered, and such documents relate to such Mortgage Loan,
(c) based on its examination and only as to the Mortgage Note and the Mortgage,
the street address of the Mortgaged Property and the name of the Mortgagor set
forth in the Mortgage Loan Schedule
accurately reflects the information contained in the documents in the Mortgage
File, and (d) each Mortgage Note has been endorsed. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File or any of
the Trustee Mortgage Loans identified in the Mortgage Loan Schedule, or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan.
The Trustee acknowledges receipt of notice that the Depositor
has granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans, the REMIC I Regular Interests, and the REMIC II Regular
Interests.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
This Certificate is qualified in all respects by the terms of said Pooling and
Servicing Agreement including but not limited to Section 2.2.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
Title:
SCHEDULE OF EXCEPTIONS
EXHIBIT C
FORM OF REQUEST FOR RELEASE
To: Lasalle Bank National Association, as Trustee
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Asset-Backed Securities Trust Services Group
Bear Xxxxxxx Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2002-TOP6
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial
Mortgage Pass-Through Certificates, Series 2002-TOP6
----------------------------------------------------
DATE:__________
In connection with the administration of the Mortgage Loans
held by you as Trustee under the Pooling and Servicing Agreement dated as of
March 1, 2002 by and among Bear Xxxxxxx Commercial Mortgage Securities Inc., as
Depositor, Xxxxx Fargo Bank, National Association, as Master Servicer, GMAC
Commercial Mortgage Corporation, as Special Servicer, Lasalle Bank National
Association, as Trustee, Xxxxx Fargo Bank Minnesota, National Association, as
Paying Agent and Certificate Registrar and ABN AMRO Bank N.V., as Fiscal Agent
(the "Pooling and Servicing Agreement"), the undersigned hereby requests a
release of the Trustee Mortgage File held by you as Trustee with respect to the
following described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
_____ 1. Mortgage Loan paid in full.
(The [Master] [Special] Servicer hereby certifies that all
amounts received in connection with the Mortgage Loan have
been or will be, following the [Master] [Special] Servicer's
release of the Trustee Mortgage File, credited to the
Certificate Account or the Distribution Account pursuant to
the Pooling and Servicing Agreement.)
_____ 2. Mortgage Loan repurchased.
(The [Master] [Special] Servicer hereby certifies that the
Purchase Price has been credited to the Distribution Account
pursuant to the Pooling and Servicing Agreement.)
_____ 3. Mortgage Loan Defeased.
4. Mortgage Loan substituted.
(The [Master] [Special] Servicer hereby certifies that a
Qualifying Substitute Mortgage Loan has been assigned and
delivered to you along with the related Trustee Mortgage
File pursuant to the Pooling and Servicing Agreement.)
_____ 5. The Mortgage Loan is being foreclosed.
_____ 6. Other. (Describe)
The undersigned acknowledges that the above Trustee Mortgage
File will be held by the undersigned in accordance with the provisions of the
Pooling and Servicing Agreement and will be returned to you, except if the
Mortgage Loan has been paid in full, repurchased or substituted for by a
Qualifying Substitute Mortgage Loan (in which case the Trustee Mortgage File
will be retained by us permanently), when no longer required by us for such
purpose).
Capitalized terms used herein shall have the meanings ascribed
to them in the Pooling and Servicing Agreement.
[Name of [Master] [Special] Servicer]
By:
------------------------------------
Name:
Title:
EXHIBIT D-1
FORM OF TRANSFEROR CERTIFICATE FOR
TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
Xxxxx Fargo Center
Sixth and Marquette
Xxxxxxxxxxx, XX 00000
Attention: Corporate Trust Services
(CMBS) MAC #N9309-121
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2002-TOP6, Class __
(the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of Class ___ Certificates [having an initial Certificate Balance
or Notional Amount as of March 21, 2002 (the "Closing Date") of $__________]
[evidencing a ____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Transferred Certificates were issued pursuant to the Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
March 1, 2002, among Bear Xxxxxxx Commercial Mortgage Securities Inc., as
depositor (the "Depositor"), Xxxxx Fargo Bank, National Association, as master
servicer, GMAC Commercial Mortgage Corporation, as special servicer, Lasalle
Bank National Association, as trustee, Xxxxx Fargo Bank Minnesota, National
Association, as paying agent and certificate registrar and ABN AMRO Bank N.V.,
as fiscal agent. All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Transferor hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free
from any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security to any person in any manner, (b) solicited
any offer to buy or accept a transfer, pledge or other disposition of
any Transferred Certificate, any interest in any Transferred
Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security with any person in any manner, (d) made any
general solicitation by means of general advertising or in any other
manner, or (e) taken any other action, which (in the case of any of the
acts described in clauses (a) through (e) hereof) would constitute a
distribution of any Transferred Certificate under the Securities Act of
1933, as amended (the "Securities Act"), or would render the
disposition of any Transferred Certificate a violation of Section 5 of
the Securities Act or any state securities laws, or would require
registration or qualification of any Transferred Certificate pursuant
to the Securities Act or any state securities laws.
Very truly yours,
---------------------------------------
(Transferor)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT D-2A
FORM I OF TRANFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFRED CERTIFICATES
[DATE]
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
Xxxxx Fargo Center
Sixth and Marquette
Xxxxxxxxxxx, XX 00000
Attention: Corporate Trust Services
(CMBS) MAC #N9309-121
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2002-TOP6
(the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of Class ______ Certificates [having an initial Certificate
Principal Balance or Notional Amount as of March 21, 2002 (the "Closing Date")
of [$__________] [evidencing a ____% Percentage Interest in the related Class]
(the "Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of March 1, 2002 (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx
Commercial Mortgage Securities Inc., as depositor (the "Depositor"), Xxxxx Fargo
Bank, National Association, as master servicer, GMAC Commercial Mortgage
Corporation, as special servicer, Lasalle Bank National Association, as trustee,
Xxxxx Fargo Bank Minnesota, as paying agent and certificate registrar and ABN
AMRO Bank N.V., as fiscal agent. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
you, as Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the
"Securities Act") and has completed one of the forms of certification
to that effect attached hereto as Annex 1 and Annex 2. The Transferee
is aware that the sale to it of the Transferred Certificates is being
made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of a
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a Qualified Institutional Buyer that
purchases for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the nature, performance and servicing of the
Mortgage Loans, (d) the Pooling and Servicing Agreement, (e) any credit
enhancement mechanism associated with the Transferred Certificates and
(f) all related matters that it has requested.
Very truly yours,
---------------------------------------
(Transferee)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ANNEX 1 TO EXHIBIT D-2A
-----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and [name of Certificate Registrar], as
Certificate Registrar, with respect to the commercial mortgage pass-through
certificate being transferred (the "Transferred Certificate") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), because (i) the Transferee owned and/or invested on a discretionary
basis $______________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation
(other than a bank, savings and loan association or
similar institution), Massachusetts or similar
business trust, partnership, or any organization
described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a
banking institution organized under the laws of any
State, U.S. territory or the District of Columbia,
the business of which is substantially confined to
banking and is supervised by the State or territorial
banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has
an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of
a date not more than 16 months preceding the date of
sale of the Certificate in the case of a U.S. bank,
and not more than 18 months preceding such date of
sale for a foreign bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and
loan association, building and loan association,
cooperative bank, homestead association or similar
institution, which is supervised and examined by a
State or Federal authority having supervision over
any such institutions or is a foreign savings and
loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of
a date not more than 16 months preceding the date of
sale of the Certificate
in the case of a U.S. savings and loan association,
and not more than 18 months preceding such date of
sale for a foreign savings and loan association or
equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered
pursuant to Section 15 of the Securities Exchange Act
of 1934, as amended.
___ Insurance Company. The Transferee is an insurance
company whose primary and predominant business
activity is the writing of insurance or the
reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the
insurance commissioner or a similar official or
agency of a State, U.S. territory or the District of
Columbia.
___ State or Local Plan. The Transferee is a plan
established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit
of its employees.
___ ERISA Plan. The Transferee is an employee benefit
plan within the meaning of Title I of the Employee
Retirement income Security Act of 1974, as amended.
___ Investment Advisor. The Transferee is an investment
advisor registered under the Investment Advisers Act
of 1940, as amended.
___ Other. (Please supply a brief description of the
entity and a cross-reference to the paragraph and
subparagraph under subsection (a)(1) of Rule 144A
pursuant to which it qualifies. Note that registered
investment companies should complete Annex 2 rather
than this Annex 1.)
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee did not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee, unless the
Transferee reports its securities holdings in its financial statements on the
basis of their market value, and no current information with respect to the cost
of those securities has been published, in which case the securities were valued
at market. Further, in determining such aggregate amount, the Transferee may
have included securities owned by subsidiaries of the Transferee, but only if
such subsidiaries are consolidated with the Transferee in its financial
statements prepared in accordance with generally accepted accounting principles
and if the investments of such subsidiaries are managed under the Transferee's
direction. However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor and other parties related to the
Transferred Certificate are relying and will continue to rely on the statements
made herein because one or more sales to the Transferee may be in reliance on
Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificate only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such purchase. In addition, if the Transferee is a bank or savings and loan
as provided above, the Transferee agrees that it will furnish to such parties
any updated annual financial statements that become available on or before the
date of such purchase, promptly after they become available.
---------------------------------------
Print Name of Transferee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
ANNEX 2 TO EXHIBIT D-2A
-----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and [name of Certificate Registrar], as
Certificate Registrar, with respect to the mortgage pass-through certificate
being transferred (the "Transferred Certificates") as described in the
Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificates (the "Transferee") or, if
the Transferee is a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933, as amended ("Rule 144A") because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as
defined in Rule 144A because (i) the Transferee is an investment company
registered under the Investment Company Act of 1940, as amended, and (ii) as
marked below, the Transferee alone owned and/or invested on a discretionary
basis, or the Transferee's Family of Investment Companies owned, at least
$100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year. For purposes
of determining the amount of securities owned by the Transferee or the
Transferee's Family of Investment Companies, the cost of such securities was
used, unless the Transferee or any member of the Transferee's Family of
Investment Companies, as the case may be, reports its securities holdings in its
financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been published, in
which case the securities of such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands
that the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the
Transferred Certificates only for the
Transferee's own account?
Yes No
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Transferred Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
---------------------------------------
Print Name of Transferee or Adviser
By:
------------------------------------
Name:
Title:
IF AN ADVISER:
---------------------------------------
Print Name of Transferee
Date:
----------------------------------
EXHIBIT D-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
Xxxxx Fargo Center
Sixth and Marquette
Xxxxxxxxxxx, XX 00000
Attention: Corporate Trust Services
(CMBS) MAC #N9309-121
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2002-TOP6 (the
"Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _______________________ (the "Transferor") to
_______________________________ (the "Transferee") of Class ___ Certificates
[having an initial Certificate Principal Balance as of March 21, 2002 (the
"Closing Date") of $__________][evidencing a ____% Percentage Interest in the
related Class] (the "Transferred Certificates"). The Certificates, including the
Transferred Certificates, were issued pursuant to the Pooling and Servicing
Agreement, dated as of March 1, 2002 (the "Pooling and Servicing Agreement"),
among Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor (the
"Depositor"), Xxxxx Fargo Bank, National Association, as master servicer, GMAC
Commercial Mortgage Corporation, as special servicer, Lasalle Bank National
Association, as trustee, Xxxxx Fargo Bank Minnesota, National Association, as
paying agent and certificate registrar and ABN AMRO Bank N.V., as fiscal agent.
All capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferee is acquiring the Transferred Certificates
for its own account for investment and not with a view to or for sale or
transfer in connection with any distribution thereof, in whole or in part, in
any manner which would violate the Securities Act of 1933, as amended (the
"Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Class of
Certificates to which the Transferred Certificates belong has not been and will
not be registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the Class of
Certificates to which the Transferred Certificates belong, and (c) no
Transferred Certificate may be resold or transferred unless it is (i) registered
pursuant to the Securities Act and registered or
qualified pursuant any applicable state securities laws or (ii) sold or
transferred in transactions which are exempt from such registration and
qualification and the Certificate Registrar has received either: (A) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit D-1 to the Pooling and Servicing
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached either as Exhibit D-2A or as Exhibit D-2B to
the Pooling and Servicing Agreement; or (C) an opinion of counsel satisfactory
to the Certificate Registrar with respect to the availability of such exemption
from registration under the Securities Act, together with copies of the written
certification(s) from the transferor and/or transferee setting forth the facts
surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or
otherwise transfer any Transferred Certificate except in compliance with the
provisions of Section 3.3 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed.
4. Transferee understands that each Transferred Certificate
will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR
OTHER DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN
A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
OR THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE
OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROCEDURES DESCRIBED IN SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
5. Neither the Transferee nor anyone acting on its behalf has
(a) offered, pledged, sold, disposed of or otherwise transferred any Transferred
Certificate, any interest in any Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
pledge, disposition or other transfer of any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in any Certificate or any other similar
security with any person in any manner, (d) made any general solicitation by
means of general advertising or in any other manner, or (e) taken any other
action with respect to any Transferred Certificate, any interest in any
Transferred Certificate or any other similar security, which (in the case of any
of the acts described in clauses (a) through (e) above) would constitute a
distribution of the Transferred Certificates under the Securities Act, would
render the disposition of the Transferred Certificates a violation of Section 5
of the Securities Act or any state securities law or would require registration
or qualification of the Transferred Certificates pursuant thereto. The
Transferee will not act, nor has it authorized or will it authorize any person
to act, in any manner set forth in the foregoing sentence with respect to any
Transferred Certificate, any interest in any Transferred Certificate or any
other similar security.
6. The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor and other parties related to the
Transferred Certificate are relying and will continue to rely on the statements
made herein because one or more sales to the Transferee may be in reliance on
Rule 144A.
7. The Transferee is an "accredited investor" as defined in
any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act
or an entity in which all of the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Transferred Certificate; the Transferee has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such
investment and can afford a complete loss of such investment.
Very truly yours,
---------------------------------------
(Transferee)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT D-3A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2002-TOP6, Class __
(the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the
transfer by _____________________ (the "Transferor") to ______________________
(the "Transferee") of a Certificate (the "Transferred Certificate") having an
initial principal balance or notional amount as of March 21, 2002 (the "Closing
Date") of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of March
1, 2002, among Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor
(the "Depositor"), Xxxxx Fargo Bank, National Association, as master servicer,
GMAC Commercial Mortgage Corporation, as special servicer, Lasalle Bank National
Association, as trustee, Xxxxx Fargo Bank Minnesota, as paying agent and
certificate registrar and ABN AMRO Bank N.V., as fiscal agent. All terms used
herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you, and for the benefit of the Depositor, the Certificate Registrar
and the Trustee, that:
1. The Transferee is acquiring the Transferred Certificate for
its own account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have
not been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the Depositor,
the Trustee or the Certificate Registrar is obligated so to register or qualify
the Certificates and (c) no interest in the Certificates may be sold or
transferred unless it is (i) registered pursuant to the Securities Act and
registered or qualified pursuant to any applicable state securities laws or (ii)
sold or transferred in transactions which are exempt from such registration and
qualification and the Certificate Owner desiring to effect such transfer has
received either (A) a certification from such Certificate Owner's prospective
transferee (substantially in the form attached to the Pooling and Servicing
Agreement) setting forth the facts surrounding the transfer or (B) an opinion of
counsel with respect to the availability of such exemption, together with copies
of the certification(s) from the transferor and/or transferee setting forth the
facts surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or
otherwise transfer any portion of its interest in the Transferred Certificate
except in compliance with the provisions of Section 3.3 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed.
4. Transferee understands that the Transferred Certificate
will bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR
QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION
OF THIS CERTIFICATE OR ANY INTEREST THEREIN WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF,
AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED IN SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
5. Neither the Transferee nor anyone acting on its behalf has
(a) offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar security to
any person in any manner, (b) solicited any offer to buy or accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c)
otherwise approached or negotiated with respect to any Certificate, any interest
in any Certificate or any other similar security with any person in any manner,
(d) made any general solicitation by means of general advertising or in any
other manner, or (e) taken any other action, that (in the case of any of the
acts described in clauses (a) through (e) above) would constitute a distribution
of any Certificate under the Securities Act, would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification of any Certificate
pursuant thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to any Certificate, any interest in any Certificate or any similar
security.
6. The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor and other parties related to the
Transferred Certificate are relying and will continue to rely on the statements
made herein because one or more sales to the Transferee may be in reliance on
Rule 144A.
7. The Transferee is an institutional "accredited investor" as
defined in Rule 501(a) (1), (2), (3) or (7) under the Securities Act and has
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of an investment in the Certificates; the
Transferee has sought such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision; and the Transferee is able to
bear the economic risks of such an investment and can afford a complete loss of
such investment.
Very truly yours,
---------------------------------------
(Transferee)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT D-3B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2002-TOP6, Class __
(the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the
transfer by _____________ ________ (the "Transferor") to ______________________
(the "Transferee") of a Certificate (the "Transferred Certificate") having an
initial principal balance or notional amount as of March 21, 2002 (the "Closing
Date") of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of March
1, 2002, among Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor
(the "Depositor"), Xxxxx Fargo Bank, National Association, as master servicer,
GMAC Commercial Mortgage Corporation, as special servicer, Lasalle Bank National
Association, as trustee, Xxxxx Fargo Bank Minnesota, National Association, as
paying agent and certificate registrar and ABN AMRO Bank N.V., as fiscal agent.
All terms used herein and not otherwise defined shall have the meanings set
forth in the Pooling and Servicing Agreement. The Transferee hereby certifies,
represents and warrants to you, and for the benefit of the Depositor, the
Certificate Registrar and the Trustee, that:
1. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended (the "Securities Act"), and has completed one of the forms of
certification to that effect attached hereto as Annex 1 and Annex 2. The
Transferee is aware that the sale to it is being made in reliance on Rule 144A.
The Transferee is acquiring the Transferred Certificate for its own account or
for the account of a qualified institutional buyer, and understands that such
Certificate or any interest therein may be resold, pledged or transferred only
(i) to a person reasonably believed to be a qualified institutional buyer that
purchases for its own account or for the account of a qualified institutional
buyer to whom notice is given that the resale, pledge or transfer is being made
in reliance on Rule 144A, or (ii) pursuant to another exemption from
registration under the Securities Act.
2. The Transferee understands that (a) the Class of
Certificates to which the Transferred Certificate belongs have not been and will
not be registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the Certificates
and (c) no interest in the Certificates may be sold or transferred unless it is
(i) registered pursuant to the Securities Act and registered or qualified
pursuant to any applicable state securities laws or
(ii) sold or transferred in transactions which are exempt from such registration
and qualification and the Certificate Owner desiring to effect such transfer has
received either (A) a certification from such Certificate Owner's prospective
transferee (substantially in the form attached to the Pooling and Servicing
Agreement) setting forth the facts surrounding the transfer or (B) an opinion of
counsel with respect to the availability of such exemption, together with copies
of the certification(s) from the transferor and/or transferee setting forth the
facts surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or
otherwise transfer any portion of its interest in the Transferred Certificate
except in compliance with the provisions of Section 3.3 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed.
4. Transferee understands that the Transferred Certificate
will bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR
QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION
OF THIS CERTIFICATE OR ANY INTEREST THEREIN WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF,
AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED IN SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
5. The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor and other parties related to the
Transferred Certificate are relying and will continue to rely on the statements
made herein because one or more sales to the Transferee may be in reliance on
Rule 144A.
Very truly yours,
---------------------------------------
(Transferee)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ANNEX 1 TO EXHIBIT D-3B
-----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor"), and [name of Certificate Registrar] as
Certificate Registrar, with respect to the commercial mortgage pass-through
certificate being transferred (the "Transferred Certificate") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), because (i) the Transferee owned and/or invested on a discretionary
basis $______________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation
(other than a bank, savings and loan association or
similar institution), Massachusetts or similar
business trust, partnership, or any organization
described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a
banking institution organized under the laws of any
State, U.S. territory or the District of Columbia,
the business of which is substantially confined to
banking and is supervised by the State or territorial
banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has
an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of
a date not more than 16 months preceding the date of
sale of the Certificate in the case of a U.S. bank,
and not more than 18 months preceding such date of
sale for a foreign bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and
loan association, building and loan association,
cooperative bank, homestead association or similar
institution, which is supervised and examined by a
State or Federal authority having supervision over
any such institutions or is a foreign savings and
loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of
a
date not more than 16 months preceding the date of
sale of the Certificate in the case of a U.S. savings
and loan association, and not more than 18 months
preceding such date of sale for a foreign savings and
loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered
pursuant to Section 15 of the Securities Exchange Act
of 1934, as amended.
___ Insurance Company. The Transferee is an insurance
company whose primary and predominant business
activity is the writing of insurance or the
reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the
insurance commissioner or a similar official or
agency of a State, U.S. territory or the District of
Columbia.
___ State or Local Plan. The Transferee is a plan
established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit
of its employees.
___ ERISA Plan. The Transferee is an employee benefit
plan within the meaning of Title I of the Employee
Retirement income Security Act of 1974, as amended.
___ Investment Advisor. The Transferee is an investment
advisor registered under the Investment Advisers Act
of 1940, as amended.
___ Other. (Please supply a brief description of the
entity and a cross-reference to the paragraph and
subparagraph under subsection (a)(1) of Rule 144A
pursuant to which it qualifies. Note that registered
investment companies should complete Annex 2 rather
than this Annex 1.)
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee did not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee, unless the
Transferee reports its securities holdings in its financial
statements on the basis of their market value, and no current information with
respect to the cost of those securities has been published, in which case the
securities were valued at market. Further, in determining such aggregate amount,
the Transferee may have included securities owned by subsidiaries of the
Transferee, but only if such subsidiaries are consolidated with the Transferee
in its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Transferee's direction. However, such securities were not included if
the Transferee is a majority-owned, consolidated subsidiary of another
enterprise and the Transferee is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor and other parties related to the
Transferred Certificate are relying and will continue to rely on the statements
made herein because one or more sales to the Transferee may be in reliance on
Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificate only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such purchase. In addition, if the Transferee is a bank or savings and loan
as provided above, the Transferee agrees that it will furnish to such parties
any updated annual financial statements that become available on or before the
date of such purchase, promptly after they become available.
---------------------------------------
Print Name of Transferee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
ANNEX 2 TO EXHIBIT D-3B
-----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor"), and for the benefit of the Depositor, the
Certificate Registrar and the Trustee, with respect to the commercial mortgage
pass-through certificate being transferred (the "Transferred Certificate") as
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificate (the "Transferee") or, if
the Transferee is a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"), because
the Transferee is part of a Family of Investment Companies (as defined below),
is an executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as
defined in Rule 144A because (i) the Transferee is an investment company
registered under the Investment Company Act of 1940, as amended, and (ii) as
marked below, the Transferee alone owned and/or invested on a discretionary
basis, or the Transferee's Family of Investment Companies owned, at least
$100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year. For purposes
of determining the amount of securities owned by the Transferee or the
Transferee's Family of Investment Companies, the cost of such securities was
used, unless the Transferee or any member of the Transferee's Family of
Investment Companies, as the case may be, reports its securities holdings in its
financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been published, in
which case the securities of such entity were valued at market.
____ The Transferee owned and/or invested on a
discretionary basis $___________________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
____ The Transferee is part of a Family of Investment
Companies which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of the end of
the Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands
that the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificate only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Transferred Certificate will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
---------------------------------------
Print Name of Transferee or Adviser
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
IF AN ADVISER:
---------------------------------------
Print Name of Transferee
Date:
----------------------------------
EXHIBIT E-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF REMIC RESIDUAL CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
_______________ being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________
(the prospective transferee (the "Transferee") of Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2002-TOP6, Class [R-I] [R-II] [R-III], evidencing a ____% Percentage Interest in
such Class (the "Residual Certificates")), a ________________ duly organized and
validly existing under the laws of ____________________, on behalf of which
he/she makes this affidavit. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement as amended and restated pursuant to which the Residual
Certificates were issued (the "Pooling and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will
be, a "Permitted Transferee" and will endeavor to remain a "Permitted
Transferee" for so long as it holds the Residual Certificates, and (ii) is
acquiring the Residual Certificates for its own account or for the account of
another prospective transferee from which it has received an affidavit in
substantially the same form as this affidavit. A "Permitted Transferee" is any
Person other than a "disqualified organization" or a possession of the United
States. (For this purpose, a "disqualified organization" means the United
States, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality, all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax unless such organization is subject to the tax on unrelated business
taxable income.
3. The Transferee (i) is, and as of the date of transfer will
be, a "Qualified Institutional Buyer" and will endeavor to remain a "Qualified
Institutional Buyer" for so long as it holds the Residual Certificates, and (ii)
is acquiring the Residual Certificates for its own account or for the account of
another prospective transferee from which it has received an affidavit in
substantially the same form as this affidavit. A "Qualified Institutional Buyer"
is a qualified institutional buyer qualifying pursuant to Rule 144A under the
Securities Act of 1933, as amended.
4. The Transferee is aware (i) of the tax that would be
imposed on transfers of the Residual Certificates to "disqualified
organizations" under the Code that applies to all transfers of the Residual
Certificates; (ii) that such tax would be on the transferor or, if such
transfer is through an agent (which Person includes a broker, nominee or
middleman) for a non-Permitted Transferee, on the agent; (iii) that the Person
otherwise liable for the tax shall be relieved of liability for the tax if the
transferee furnishes to such Person an affidavit that the transferee is a
Permitted Transferee and, at the time of transfer, such Person does not have
actual knowledge that the affidavit is false; and (iv) that the Residual
Certificates may be a "noneconomic residual interest" within the meaning of
Treasury regulation Section 1.860E-1(c) and that the transferor of a
"noneconomic residual interest" will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer is to enable the transferor to impede the assessment or
collection of tax.
5. The Transferee is aware of the tax imposed on a
"pass-through entity" holding the Residual Certificates if at any time during
the taxable year of the pass-through entity a non-Permitted Transferee is the
record holder of an interest in such entity. (For this purpose, a "pass-through
entity" includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives.)
6. The Transferee is aware that the Certificate Registrar will
not register any transfer of the Residual Certificates by the Transferee unless
the Transferee's transferee, or such transferee's agent, delivers to the
Certificate Registrar, among other things, an affidavit and agreement in
substantially the same form as this affidavit and agreement. The Transferee
expressly agrees that it will not consummate any such transfer if it knows or
believes that any representation contained in such affidavit and agreement is
false.
7. 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.
8. The Transferee's taxpayer identification number is
_________________.
9. The Transferee has reviewed the provisions of Section
3.3(e) of the Pooling and Servicing Agreement, a description of which provisions
is set forth in the Residual Certificates (in particular, clause (ii)(F) of
Section 3.3(e) which authorizes the Paying Agent or the Trustee to deliver
payments on the Residual Certificate to a Person other than the Transferee and
clause (ii)(G) of Section 3.3(e) which authorizes the Trustee to negotiate a
mandatory sale of the Residual Certificates, in either case, in the event that
the Transferee holds such Residual Certificates in violation of Section 3.3(e));
and the Transferee expressly agrees to be bound by and to comply with such
provisions.
10. No purpose of the Transferee relating to its purchase or
any sale of the Residual Certificates is or will be to impede the assessment or
collection of any tax.
11. The Transferee hereby represents to and for the benefit of
the transferor that the Transferee intends to pay any taxes associated with
holding the Residual Certificates as they become due, fully understanding that
it may incur tax liabilities in excess of any cash flows generated by the
Residual Certificates.
12. The Transferee will, in connection with any transfer that
it makes of the Residual Certificates, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit E-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Residual Certificates to impede the
assessment or collection of any tax and that it has at the time of such transfer
conducted a reasonable investigation of the financial condition of the proposed
transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and
has satisfied the requirements of such provision.
13. The Transferee is a citizen or resident of the United
States, a corporation, a partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate or trust whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States.
14. [Select a, b, or c, if applicable] [a] The Transferee has
computed any consideration paid to it to acquire the Class R Certificate in
accordance with proposed U.S. Treasury Regulations Sections 1.860E-1(c)(4)(iii)
and 1.860E-1(c)(5) (or, after they have been finalized, the final regulations)
by computing present values using a discount rate equal to the applicable
Federal rate prescribed by Section 1274(d) of the Code, compounded
semi-annually.
[b] The Transferee has computed any consideration paid to it
to acquire the Class R Certificate in accordance with proposed U.S. Treasury
Regulations Sections 1.860E-1(c)(4)(iii) and 1.860E-1(c)(5) (or, after they have
been finalized, the final regulations) by computing present values using a
discount rate at least equal to the rate at which the Transferee regularly
borrows, in the ordinary course of its trade or business, substantial funds from
unrelated parties. The Transferee has provided all information necessary to
demonstrate to the transferor that it regularly borrows at such rate.
[c] The transfer of the Class R Certificate complies with
Section 6 of Revenue Procedure 2002-12 (the "Revenue Procedure"), 2002-3 I.R.B.
335 (January 16, 2002) (or comparable provisions of applicable final U.S.
Treasury Regulations) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
Section 860L(a)(2) of the Code, as to which income from the Class R Certificate
will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the transfer, the Transferee
had gross assets for financial reporting purposes (excluding any obligation of a
person related to the Investor within the meaning of Section 860L(g) of the Code
and excluding any other asset if a principal purpose for holding or acquiring
that asset is to permit the Transferee to satisfy this Section 13(ii)) in excess
of $100 million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Class R Certificate
only to another "eligible corporation," as defined in Section 860(a)(2) of the
Code, in a transaction that satisfies the requirements of Section 4 of the
Revenue Procedure and the transfer is not to a foreign branch of
such eligible corporation or any other arrangement by which the Class R
Certificate will be at any time subject to net tax by a foreign country or
possession of the United States; and
(iv) the Transferee determined the consideration paid to it to
acquire the Class R Certificate based on reasonable market assumptions
(including, but not limited to, borrowing and investment rates, prepayment and
loss assumptions, expense and reinvestment assumptions, tax rates and other
factors specific to the Transferee) that it has determined in good faith.
IN WITNESS WHEREOF, the Transferee has caused this instrument
to be executed on its behalf, pursuant to the authority of its Board of
Directors, by its ____________________ and its corporate seal to be hereunto
attached this day of ___________, ____.
[NAME OF TRANSFEREE]
By:
------------------------------------
[Name of Officer]
[Title of Officer]
EXHIBIT E-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
_______________, 20__
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
Xxxxx Fargo Center
6th and Marquette
Xxxxxxxxxxx, XX 00000
Attention: Corporate Trust Services
(CMBS) MAC #N9309-121
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2002-TOP6 (the
"Certificates")
Dear Sirs:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of [Class R-I] [Class R-II] [Class R-III] Certificates evidencing
a ____% Percentage Interest in such Class (the "Residual Certificates"). The
Certificates, including the Residual Certificates, were issued pursuant to the
Pooling and Servicing Agreement, dated as of March 1, 2002 (the "Pooling and
Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage Securities Inc.,
as Depositor, Xxxxx Fargo Bank, National Association, as Master Servicer, GMAC
Commercial Mortgage Corporation, as special servicer, Lasalle Bank National
Association, as trustee, Xxxxx Fargo Bank Minnesota, National Association, as
paying agent and certificate registrar and ABN AMRO Bank N.V., as fiscal agent.
All capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of
the Residual Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has
delivered to you a Transfer Affidavit and Agreement in the form attached to the
Pooling and Servicing Agreement. The Transferor does not know or believe that
any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in
the future. The Transferor understands that the transfer of the Residual
Certificates may not be respected for United States income tax purposes (and the
Transferor may continue to be liable for United States income taxes associated
therewith) unless the Transferor has conducted such an investigation.
4. The Transferor does not know and has no reason to know that
the Transferee will not honor the restrictions on subsequent transfers by the
Transferee under the Transfer Affidavit and Agreement, delivered in connection
with this transfer.
Very truly yours,
---------------------------------------
(Transferor)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT F
FORM OF REGULATION S CERTIFICATE
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2002-TOP6, CLASS __ (THE "CERTIFICATES")
TO: Euroclear System
or
CEDEL, S.A.
This is to certify that as of the date hereof, and except as
set forth below, the above-captioned Certificates held by you or on your behalf
for our account are beneficially owned by (a) non -U.S person(s) or (b) U.S.
person(s) who purchased the Certificates in transactions which did not require
registration under the United States Securities Act of 1933, as amended (the
"Securities Act"). As used in this paragraph, the term "U.S. person" has the
meaning given to it by Regulation S under the Securities Act. To the extent that
we hold an interest in any of the Certificates on behalf of person(s) other than
ourselves, we have received certifications from such person(s) substantially
identical to the certifications set forth herein.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the Certificates held by you or on your behalf for our account in accordance
with your operating procedures if any applicable statement herein is not correct
on such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certification excepts and does not relate to $__________
of such beneficial interest in the above Certificates in respect of which we are
not able to certify and as to which we understand the exercise of any rights to
payments thereon and the exchange for definitive Certificates or for an interest
in definitive Certificates in global form cannot be made until we do so certify.
We understand that this certification is required in
connection with certain securities laws of the United States. In connection
therewith, if administrative or legal proceedings are commenced or threatened in
connection with which this certification is or would be relevant, we irrevocably
authorize you to produce this certification to any interested party in such
proceedings.
Dated: __________, 2002
By:
------------------------------------
As, or as agent for, the beneficial
owner(s) of the Certificates to which
this certificate relates.
EXHIBIT G-1
FORM OF PRIMARY SERVICING AGREEMENT
[Available Upon Request]
EXHIBIT G-2
[Reserved]
EXHIBIT H
FORM OF EXCHANGE CERTIFICATION
__________ __, 200_
TO: The Depository Trust Company
CEDEL BANK, S. A. or
Xxxxxx Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
Xxxxx Fargo Bank, National Association, as Master Servicer
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
LaSalle Bank National Association,
as Trustee
This is to notify you as to the transfer of the beneficial
interest in $_______________ of Bear Xxxxxxx Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates, Series 2002-TOP6, Class__ (the
"Certificates").
The undersigned is the owner of a beneficial interest in the
Class __ [Rule 144A-IAI Global Certificate] [Regulation S Global Certificate]
and requests that on [INSERT DATE], (i) [Euroclear] [CEDEL] [DTC] debit account
#__________, with respect to $__________ principal denomination of the Class __
[Rule 144A-IAI Global Certificate] [Regulation S Global Certificate] and (ii)
[DTC] [Euroclear] [CEDEL] credit the beneficial interest of the below-named
purchaser, account #__________, in the Class __ [Rule 144A-IAI Global
Certificate] [Regulation S Global Certificate] in the same principal
denomination as follows:
Name:
Address:
Taxpayer I D. No.:
The undersigned hereby represents that this transfer is being
made in accordance with an exemption from the provisions of Section 5 of the
United States Securities Act of 1933, as amended (the "Securities Act"), which
representation is based upon the reasonable belief that the purchaser is [not a
U.S. Person as defined in Regulation S under the Securities Act][a "qualified
institutional buyer," as defined in Rule 144A under the Securities Act, and that
such purchaser has acquired the Certificates in a transaction effected in
accordance with the exemption from the registration requirements of the
Securities Act provided by Rule 144A and, if the purchaser has purchased the
Certificates for one or more accounts for which it is acting as fiduciary or
agent, each such account is a qualified institutional buyer or an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the 1933 Act][an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the 1933 Act and in accordance with any applicable securities
laws of any state of the United States and, if the purchaser has purchased the
Certificates for one or more accounts for which it is acting as fiduciary or
agent, each such account is a qualified institutional buyer or an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the 1933 Act] and that the purchaser is acquiring beneficial
interests in the applicable Certificate1 for its own account or for one or more
institutional accounts for which it is acting as fiduciary or agent in a minimum
amount equivalent to not less than U.S.[$25,000] [$100,000] and integral
multiples of U.S. $1 in excess thereof for each such account.
Very truly yours,
[NAME OF HOLDER OF CERTIFICATE]
By:
------------------------------------
[Name], [Chief Financial
or other Executive Officer]
---------------------------
(1) [NOTE: INFORMATION PROVIDED ABOVE WITH RESPECT TO PURCHASER AND THE
FOREGOING REPRESENTATION MUST BE PROVIDED TO THE CERTIFICATE REGISTRAR
UPON ANY TRANSFER OF CERTIFICATES IF THE CERTIFICATES ARE NO LONGER
HELD IN GLOBAL FORM.]
EXHIBIT I
FORM OF EUROCLEAR OR CEDEL CERTIFICATE
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2002-TOP6, CLASS __ (THE "CERTIFICATES")
TO: Xxxxx Fargo Bank Minnesota, National Association, as Certificate Registrar
Attn: Corporate Trust Services (CMBS) MAC #N9309-121
LaSalle Bank National Association, as Trustee
Attn: Asset Backed Securities Trust Services Group
Bear Xxxxxxx Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2002-TOP6
This is to certify that, based solely on certifications we
have received in writing, by tested telex or by electronic transmission from
member organizations appearing in our records as persons being entitled to a
portion of the principal amount of the Certificates set forth below (our "Member
Organizations") substantially to the effect set forth in the Pooling and
Servicing Agreement dated as of March 1, 2002 (the "Pooling and Servicing
Agreement") among both of you, Bear Xxxxxxx Commercial Mortgage Securities Inc.,
ABN AMRO Bank N.V., GMAC Commercial Mortgage Corporation, and Xxxxx Fargo Bank,
National Association, U.S. $__________ principal amount of the above-captioned
Certificates held by us or on our behalf are beneficially owned by (a) non-U.S.
person(s) or (b) U.S. person(s) who purchased the Certificates in transactions
that did not require registration under the United States Securities Act of
1933, as amended (the "Securities Act"). As used in this paragraph, the term
"U.S. person" has the meaning given to it by Regulation S under the Securities
Act.
We further certify that as of the date hereof we have not
received any notification from any of our Member Organizations to the effect
that the statements made by such Member Organizations with respect to any
interest in the Certificates identified above are no longer true and cannot be
relied upon as of the date hereof.
[On Release Date: We hereby acknowledge that no portion of the
Class __ Regulation S Temporary Global Certificate shall be exchanged for an
interest in the Class __ Regulation S Permanent Global Certificate (as each such
term is defined in the Pooling and Servicing Agreement) with respect to the
portion thereof for which we have not received the applicable certifications
from our Member Organizations.]
[Upon any payments under the Regulation S Temporary Global
Certificate: We hereby agree to hold (and return to the Trustee upon request)
any payments received by us on the Class __ Regulation S Temporary Global
Certificate (as defined in the Pooling and Servicing Agreement) with respect to
the portion thereof for which we have not received the applicable certifications
from our Member Organizations.]
We understand that this certification is required in
connection with certain securities laws of the United States. In connection
therewith, if administrative or legal proceedings are commenced or threatened in
connection with which this certification is or would be relevant, we irrevocably
authorize you to produce this certification to any interested party in such
proceedings.
Dated:
[XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, Brussels office,
as operator of the Euroclear
System]
or
[CEDEL BANK, S.A.]
By:
------------------------------------
EXHIBIT J
LIST OF LOANS TO WHICH EXCESS SERVICING FEES ARE PAID
[Available From Depositor]
EXHIBIT J
BSCMSI 2001-TOP6
--------------------------------------------------------------------------------
LIST OF LOANS AS TO WHICH EXCESS SERVICING FEES ARE PAID - BEAR XXXXXXX
MORTGAGE LOAN POOL MORTGAGE CUT-OFF DATE
LOAN NO. NO. LOAN SELLER(1) PROPERTY NAME(2) BALANCE(5) MASTER FEE PRIMARY FEE
-------------------------------------------------------------------------------------------------------------------------------
33845 1 BSFI Regent Court $86,451,522 2 1
33528 00 XXXX Xxxxxxx Xxxx Xxxxx $18,300,000 2 1
34218 34 BSFI 000 Xxx Xxxxxx $17,805,000 2 1
33808 53 BSFI Cascade Plaza $11,300,000 2 1
33517 58 BSFI 00 Xxxxxx Xxxxxx $9,831,399 2 1
34008 61 BSFI Middletown Shopping Center $8,976,560 2 4
33424 66 BSFI Aurora Commons $8,000,000 2 4
33841 76 BSFI Big Y Supermarket $6,156,988 2 1
28717 82 BSFI Xxxxx Square Shopping Center $5,893,505 2 1
30347 00 XXXX Xxxxxxxx Xxxxxx Xxxx $5,053,218 2 1
33689 00 XXXX Xxxxxx Xxxx Shopping Center $4,938,189 2 1
32782 104 BSFI Verizon Communications - Manhattan $3,974,511 2 1
33828 107 BSFI Aberdeen Square Shopping Center $3,670,000 2 1
32925 000 XXXX Xxxxxxxxx Xxxxxx $3,191,940 2 11
32405 117 BSFI Hunter's Ridge Apartments $3,087,466 2 4
32406 120 BSFI Autumnwood Apartments $3,012,769 2 4
32549 140 BSFI 00 Xxxxxxx Xxxxxx $1,036,959 2 1
32549 140 XXXX 00 Xx. Xxxxxxxx Xx. & 000 X. Xxxx Xxxxxx $951,338 2 1
32783 142 BSFI Verizon Communications - Brooklyn $1,987,343 2 1
33965 160 BSFI 0000 Xxxxx Xxxx. West $1,597,592 2 1
MORTGAGE LOAN POOL MASTER PRIMARY
LOAN NO. NO. EXCESS SERVICING EXCESS SERVICING DEAL FEES* TRUSTEE FEE ADMINISTRATIVE COST RATE
-----------------------------------------------------------------------------------------------------------------------------
33845 1 0 0 3 0.24 3.24
33528 33 0 0 3 0.24 3.24
34218 34 0 0 3 0.24 3.24
33808 53 0 0 3 0.24 3.24
33517 58 0 0 3 0.24 3.24
34008 61 0 0 6 0.24 6.24
33424 66 0 0 6 0.24 6.24
33841 76 0 0 3 0.24 3.24
28717 82 0 0 3 0.24 3.24
30347 91 0 0 3 0.24 3.24
33689 92 3 0 6 0.24 6.24
32782 104 0 0 3 0.24 3.24
33828 107 0 0 3 0.24 3.24
32925 116 0 0 13 0.24 13.24
32405 117 0 0 6 0.24 6.24
32406 120 0 0 6 0.24 6.24
32549 140 0 0 3 0.24 3.24
32549 140 0 0 3 0.24 3.24
32783 142 0 0 3 0.24 3.24
33965 160 0 0 3 0.24 3.24
EXHIBIT J
BSCMSI 2001-TOP6
--------------------------------------------------------------------------------
LIST OF LOANS AS TO WHICH EXCESS SERVICING FEES ARE PAID - XXXXXX XXXXXXX
LOAN POOL NO. MORTGAGE LOAN SELLER INTERNAL LOAN ID PROPERTY NAME CUT-OFF DATE BALANCE MASTER FEE
------------- -------------------- ---------------- ------------- -------------------- ----------
3 MSDWMC 01-10221 Bank One Center Office $64,500,000 2
4 MSDWMC 01-09746 Capital City Mall $53,250,000 2
5 MSDWMC 01-09880 Fair City Mall $36,934,701 2
6 MSDWMC 01-10444 Nortel Networks $29,947,896 2
7 MSDWMC 01-10195 PETsMART - Braintree $4,053,773 2
8 MSDWMC 01-10193 PETsMART - Boca Raton $3,430,116 2
9 MSDWMC 01-10201 PETsMART - Southlake $3,118,287 2
10 MSDWMC 01-10202 PETsMART - Westlake Village $3,055,921 2
11 MSDWMC 01-10198 PETsMART - Evanston $2,681,727 2
12 MSDWMC 01-09970 PETsMART - Plantation $2,619,361 2
13 MSDWMC 01-10200 PETsMART - Dallas $2,432,264 2
14 MSDWMC 01-10196 PETsMART - Oxon Hill $2,245,167 2
15 MSDWMC 01-10192 PETsMART - Xxxx Xxxx $1,870,972 2
16 MSDWMC 01-10199 PETsMART - Flint $1,808,607 2
17 MSDWMC 01-10197 PETsMART - Xxxxxxx $1,496,778 2
18 MSDWMC 01-10194 PETsMART - Tallahassee $997,852 2
39 MSDWMC 01-10227 Atrium Industrial Portfolio - $7,058,371 2
North Carolina
40 MSDWMC 01-10230 Atrium Industrial Portfolio - $4,988,248 2
Texas
41 MSDWMC 01-09945 Atrium Industrial Portfolio - $1,920,475 2
Pennsylvania
44 MSDWMC 01-09714 Hide Away - Pine Ridge $5,201,764 2
45 MSDWMC 01-09715 Hide Away - Skyway $3,790,356 2
46 MSDWMC 01-09710 Hide Away - 00xx Xxxxxx $2,593,401 2
47 MSDWMC 01-09712 Hide Away - Ellenton $1,351,561 2
48 MSDWMC 01-08797 Sears - Garland, TX $12,814,551 2
49 MSDWMC 01-10246 Gerber Portfolio Building #2 $6,700,514 2
50 MSDWMC 01-10247 Gerber Portfolio Building #3 $3,503,938 2
51 MSDWMC 01-10245 Gerber Portfolio Building #1 $2,274,486 2
52 MSDWMC 00-00000 Xxxxxxxxx Xxxxx $11,821,307 2
93 MSDWMC 01-08753 Pateley Portfolio: Xxxxxx-Xxxxx - $2,782,919 2
Stamford, CT
94 MSDWMC 01-08752 Pateley Portfolio: Xxxxxx-Xxxxx - $2,075,813 0
Xxxxxxx, XX
98 MSDWMC 01-08685 Brentwood Shopping Center $4,485,162 2
176 MSDWMC 01-08800 American Stores Properties - Salt $923,394 2
Lake City, Utah
MASTER PRIMARY
LOAN POOL NO. PRIMARY FEE EXCESS SERVICING EXCESS SERVICING DEAL FEES* TRUSTEE FEE ADMINISTRATIVE COST RATE
------------- ----------- ---------------- ---------------- ---------- ----------- ------------------------
3 1 0 0 3 0.24 3.24
4 1 0 0 3 0.24 3.24
5 1 0 0 3 0.24 3.24
6 5 1 0 8 0.24 8.24
7 1 0 0 3 0.24 3.24
8 1 0 0 3 0.24 3.24
9 1 0 0 3 0.24 3.24
10 1 0 0 3 0.24 3.24
11 1 0 0 3 0.24 3.24
12 1 0 0 3 0.24 3.24
13 1 0 0 3 0.24 3.24
14 1 0 0 3 0.24 3.24
15 1 0 0 3 0.24 3.24
16 1 0 0 3 0.24 3.24
17 1 0 0 3 0.24 3.24
18 1 0 0 3 0.24 3.24
39 10 1 0 13 0.24 13.24
40 10 1 0 13 0.24 13.24
41 10 1 0 13 0.24 13.24
44 1 0 0 3 0.24 3.24
45 1 0 0 3 0.24 3.24
46 1 0 0 3 0.24 3.24
47 1 0 0 3 0.24 3.24
48 1 0 0 3 0.24 3.24
49 1 0 0 3 0.24 3.24
50 1 0 0 3 0.24 3.24
51 1 0 0 3 0.24 3.24
52 1 0 0 3 0.24 3.24
93 1 0 0 3 0.24 3.24
94 1 0 0 3 0.24 3.24
98 10 1 0 13 0.24 13.24
176 1 0 0 3 0.24 3.24
EXHIBIT J
BSCMSI 2001-TOP6
--------------------------------------------------------------------------------
LIST OF LOANS AS TO WHICH EXCESS SERVICING FEES ARE PAID - PRINCIPAL
LOAN POOL NO. MORTGAGE LOAN SELLER PROPERTY NAME CUT-OFF DATE BALANCE MASTER FEE
------------- -------------------- ------------- -------------------- ----------
31 PCF 753032 Broadcom Corporation $24,872,605 2
35 PCF 752999 Xxxxxxxxx II $16,949,435 2
36 PCF 000000 Xxxxxxxxx Xxxxxx $15,901,269 2
37 PCF 752748 000 Xxxxxxx Xxxxxxxxx $15,759,759 2
38 PCF 753054 New Haven At The Park $14,500,000 2
Apartments
54 PCF 753051 Woodland Commons Shopping $11,000,000 2
Center
55 PCF 752746 Industrial Building - $10,402,257 2
Moonachie
57 PCF 753068 Shady Grove Medical Village II $10,374,214 2
59 PCF 753047 MetroWest Village Shopping $9,566,951 2
Center
60 PCF 753056 Lowe's Shopping Center $9,312,996 2
62 PCF 752968 Marco Town Center $8,974,977 2
63 PCF 753046 Xxxxxxx Oaks Shopping Center $8,819,533 2
64 PCF 753075 Time Customer Service Office $8,484,206 2
- Service Facilities
65 PCF 752852 Xxxx'x Home Center $8,163,280 2
67 PCF 753066 Vienna Square Shopping Center $7,979,929 2
68 PCF 752964 Xxxx'x Home Improvement Store $7,462,293 2
69 PCF 752886 South Riding Town Center $7,375,998 2
70 PCF 753081 Exchange Plaza Shopping Center $7,151,379 2
71 PCF 753077 Sawgrass Concourse $4,021,230 2
71 PCF 753077 Spectrum Office Park $3,088,770 2
73 PCF 753029 80 Little Falls $6,477,448 2
74 PCF 753019 American Airlines Building $6,300,000 2
75 PCF 753080 000/000 Xxxxxxx Xxxxxx $6,237,303 2
77 PCF 753076 Time Customer Service - $6,138,480 2
Distribution Warehouse
79 PCF 753030 Peachtree Corners $6,000,000 2
Distribution Center
80 PCF 753031 One Presidential Boulevard $5,979,505 2
83 PCF 752829 RAZ Imports $5,829,604 2
85 PCF 753085 Birchview Garden Apartments $5,694,293 2
86 PCF 753089 Canning Shaws Plaza $5,490,515 2
87 PCF 753084 TASQ Technology Building $5,487,981 2
88 PCF 753069 Shoppes at Packway $5,390,031 2
89 PCF 753088 Home Depot Distribution Center $5,339,530 2
90 PCF 753034 Cardinal Restaurant Supply $5,069,136 2
95 PCF 000000 Xxxxxxxx Xxxx Xxxxxx $4,791,081 2
96 PCF 753063 XxXxx Commercial Center $4,556,442 2
97 PCF 753042 Park Centre Office Building $4,539,263 2
99 PCF 753091 Staples & Dollar Tree $4,419,490 2
101 PCF 753052 Westport Shopping Center $4,000,000 2
102 PCF 753083 SableOaks $3,996,109 2
000 XXX 000000 Xxxx Xx. Xxxxxxx $3,937,280 2
108 PCF 753059 Camden Court Apartments $3,665,241 2
109 PCF 753071 530 and 555 East Pamalyn $3,642,549 0
Xxxxxx
000 XXX 000000 Xxxxxxxxxxx Self Storage $3,541,284 2
112 PCF 753061 Great Western V $3,493,380 2
114 PCF 752931 Portion of Reuten Corporate $3,399,674 2
Park
118 PCF 753060 Walgreens - Lithonia $3,044,486 2
119 PCF 753055 Huntington Xxxxx Apartments $3,041,774 2
000 XXX 000000 Xxxxxx Xxxxxxx Plaza $2,994,335 2
000 XXX 000000 Xxxxxxxxx - Xxxxxxxx Xxxxx $2,942,955 2
124 PCF 753057 Heritage Crest Apartments $2,792,680 2
000 XXX 000000 Xxxxxxxxx Xxxxxx Building $2,720,089 2
126 PCF 753040 Walgreens - Mobile $2,656,702 2
128 PCF 753035 Walgreen-Center $2,470,625 2
135 PCF 753099 Brighton Walgreens $2,191,418 2
150 PCF 753043 125 Asia Place $1,794,192 2
MASTER PRIMARY ADMINISTRATIVE
LOAN POOL NO. PRIMARY FEE EXCESS SERVICING EXCESS SERVICING DEAL FEES* TRUSTEE FEE COST RATE
------------- ----------- ---------------- ---------------- ---------- ----------- ---------
31 1 0 0 3 0.24 3.24
35 1 0 0 3 0.24 3.24
36 1 0 0 3 0.24 3.24
37 1 0 0 3 0.24 3.24
38 1 0 0 3 0.24 3.24
54 1 0 0 3 0.24 3.24
55 1 0 0 3 0.24 3.24
57 1 0 0 3 0.24 3.24
59 1 0 0 3 0.24 3.24
60 1 0 0 3 0.24 3.24
62 1 0 0 3 0.24 3.24
63 1 0 0 3 0.24 3.24
64 1 0 0 3 0.24 3.24
65 1 0 0 3 0.24 3.24
67 1 0 0 3 0.24 3.24
68 1 0 0 3 0.24 3.24
69 1 0 0 3 0.24 3.24
70 1 0 0 3 0.24 3.24
71 1 0 0 3 0.24 3.24
71 1 0 0 3 0.24 3.24
73 1 0 0 3 0.24 3.24
74 1 0 0 3 0.24 3.24
75 1 0 0 3 0.24 3.24
77 1 0 0 3 0.24 3.24
79 1 0 0 3 0.24 3.24
80 1 0 0 3 0.24 3.24
83 1 0 0 3 0.24 3.24
85 1 0 0 3 0.24 3.24
86 1 0 0 3 0.24 3.24
87 1 0 0 3 0.24 3.24
88 1 0 0 3 0.24 3.24
89 1 0 0 3 0.24 3.24
90 1 0 0 3 0.24 3.24
95 1 0 0 3 0.24 3.24
96 1 0 0 3 0.24 3.24
97 1 0 0 3 0.24 3.24
99 1 0 0 3 0.24 3.24
101 1 0 0 3 0.24 3.24
102 1 0 0 3 0.24 3.24
106 1 0 0 3 0.24 3.24
108 1 0 0 3 0.24 3.24
109 1 0 0 3 0.24 3.24
111 1 0 0 3 0.24 3.24
112 1 0 0 3 0.24 3.24
114 1 0 0 3 0.24 3.24
118 1 0 0 3 0.24 3.24
119 1 0 0 3 0.24 3.24
121 1 0 0 3 0.24 3.24
123 1 0 0 3 0.24 3.24
124 1 0 0 3 0.24 3.24
125 1 0 0 3 0.24 3.24
126 1 0 0 3 0.24 3.24
128 1 0 0 3 0.24 3.24
135 1 0 0 3 0.24 3.24
150 1 0 0 3 0.24 3.24
------------------------------------------------------------------------------------------------------------------------------------
LOAN MORTGAGE
POOL NO. LOAN SELLER LOAN NUMBER PROPERTY NAME STREET ADDRESS
------------------------------------------------------------------------------------------------------------------------------------
2 WFB 310900730 Coliseum Centre 0000 Xxxxxxxx Xx.
20 WFB 310900622 Boca Park Retail Center Charleston and Rampart
43 WFB 310900582 Golden Springs Business Center (Building C-1) 12816 South Xxxxxxxxx Avenue
60 WFB 310900619A Xxxxxxx Xxxxxxxxx Xxxxxx 00000-00000 Xxxxxxx Xxxxxxxxx
61 WFB 310900619B Xxxxxx Street Station 0000 XX Xxxxxx Xxxxxxxxx
67 WFB 310900099 Cinemark 18 Theatres 20915 Gulf Freeway
70 WFB 310900623 Xxxxxxx Xxxxxx East Building 16633 Ventura Blvd
73 WFB 310900618 Xxxxxx Crossing Shopping Center 9616 Hwy 78
84 WFB 310900713B Best Buy - Virginia Beach, Virginia 000 Xxxxx Xxxxxxxxxxxx Xxxx.
87 WFB 310900713E Best Buy - Xxxxxx, Xxx Xxxxxxxxx 000 Xxxxxx Xxxxxxx Highway
91 WFB 310900568 Ticketmaster 000 X. Xxxxxxx Xxxx
92 WFB 310900713D Best Buy - North Attleboro, Massachusetts 0000 Xxxxx Xxxxxxxxxx Xxxxxx
93 WFB 310900713A Best Buy - Schaumburg, IL 000 Xxxx Xxxx Xxxx
96 WFB 310900609 Xxxxxx Xxxxxxxx Xxxxxxxxx 00000 Xxxx Xxxxxxxx Drive
98 WFB 310900585 Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx 0000 Xxxxxx Xxxx
103 WFB 310900507 0000 Xxxxxx Xxxx 0000 Xxxxxx Xxxx
000 XXX 310900625 000 X. Xxxxx Xxxx 560 X. Xxxxx Road
108 WFB 310900636 Chautauqua Apartments 000 Xxxxxxxx Xxx
115 WFB 310900587 Xxxxxx'x Park Center 0000 Xxxx Xxxxxx Xxxxxxxxx
000 XXX 310900580 Broadway Center 000-000 Xxxx Xxxxxxxx Xxxxxx
122 WFB 310900637 Chaparral Apartments 0000 Xxxxxxxx Xxxx
000 XXX 310900630 Xxxxxx Avenue 00000 Xxxxxx Xxxxxx
124 WFB 310900566 West Fargo Warehouses 1700 & 0000 Xxxx Xxxx Xxx.
125 WFB 310900613 Northwinds Apartments 0000 Xxxxxx Xxxxx
000 XXX 310900581 Nogg Chemical & Paper Co. 0000 Xxxxxx Xxxxx
000 XXX 310900611 Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx 0000-0000 Xxxxx Xxxxxxx Parkway
129 WFB 310900602 Andover Property 0 Xxxxxxxxx Xxxx
000 XXX 310900523 Gateway Centre 0000 Xxxxxxx Xxxxx
000 XXX 310900627 Xxxxxx Xxxx Xxxxx 0000 Xxxxxx Xxxxxxxxx
132 WFB 310900545 Polo Center 1512-1624 X. Xxxxxxx Xxxxxxxxx
000 XXX 310900521 Creekside Apartments 000-000 Xxxxxxxxx Xxxxx
137 WFB 310900499 Lakeside View Estates 00000 Xxxxxxx 00
138 WFB 310900520 Rancho Xxxxx Business Park 3600, 3602, 0000 X. Xxxxxx Xxxxx
139 WFB 310900506 Polk Street 000-000 Xxxx Xxxxxx
140 WFB 310900584 X. Xxxxxxxx Street 00000 X. Xxxxxxxx Xxxxxx and 000 Xxxxxxx Xxxx.
141 WFB 310900536 San Remo Apartments 0000 Xxxxxxxx Xxxxxx
142 WFB 310900620 Walgreen's- Wichita 000 Xxxx 00xx Xxxxxx
000 XXX 310900588 Xxxxxxx Way 00000 Xxxxxxx Xxx
145 WFB 310851591 Xxxxxx Xxxx Xxxxxxxxxx 0000 - 0000 Xxxxx Xxxxxx Xxxxxx
146 WFB 310900410 Xxxxxxx Xxxxxxxxxx Xxxx 0000-0000 Xxxxxxx Xxxxx & 0000-0000 Xxxxxx Xxxxx
000 XXX 310900554 Willow Street 0000 Xxxxxx Xxxxxx
000 XXX 310900552 PETsMART Salem, OR 0000 Xxxxxxxxx Xxxxx
000 XXX 310900594 Xxxxxxxx Boulevard 0000 X. Xxxxxxxx Xxxx
150 WFB 310900589 Good Shepherd Shopping Center 0000 X. Xxxxxxxx Xxxxxx
151 WFB 310900509 Superstores - Albuquerque 0000 Xxxxxx Xxxxxxxxx XX
152 WFB 310900488 Grocery Outlet Retail Center 0000 X. Xxxxxxx Xxx./0000 & 4260 X. Xxxxxxxxxx
153 WFB 310900601 A-American Truxtun, Bakersfield 0000 Xxxxxxx Xxxxxx
155 WFB 310900591 0000 Xxxxxxxxxx Xxxxx 0000 Xxxxxxxxxx Xxxxx
000 XXX 310900713C Best Buy - Arlington, Texas 0000 Xxxx Xxxxxxxx Xxxxx Xx.
157 WFB 310900713K Best Buy - Fort Worth (Ridgemar), Texas 0000 Xxxx Xxxxxxx
000 XXX 310900626 0000 X. Xxxxxxxx Xxxxxx 0000 X. Xxxxxxxx Xxxxxx
159 WFB 310900645 00xx Xxxxxx Center 000-000 Xxxx 00xx Xxxxxx
160 WFB 310900713L Best Buy - Dallas (Duncanville), Texas 4225 Xxxxxx Xxxx
161 WFB 310900713J Best Buy - Matteson, IL 4707 Lincoln Xxxx Xxxxx
000 XXX 000000000 Xxxxxxxxx Xxxxxxx 0000 Xxxxxxxxx Xxxx.
163 WFB 310900713G Best Buy - Houston (Willowbrook), Texas 0000 Xxxx Xxxxxx Xxxx 1960
164 WFB 310900606 Xxxxxxx Self Storage 00000 Xxxxxx Xxxx
165 WFB 920900555 Xxxxx Xxxxxx Xxxxx 00 Xxxxx Xxxxxx Xxxx
166 WFB 890900564 Xxxxxxx Commercial Center 0000 Xxxxx Xxxxxxx Xxxxxx Extension
167 WFB 310900713I Best Buy - Beaumont, Texas 4375 Eastex Freeway
168 WFB 310900531 Lok-Tite Self Storage 0000 XX 000
169 WFB 310900713F Best Buy - Xxxx Xxxxxxx, XX 0000 Xxxxx Xxxxxxx Xxxxxx
000 XXX 310900522 Brunswick Corner 00000 Xxxxxxxxx Xxxx
171 WFB 310900600 Victorville South Self Storage 12474 Industrial Boulevard
172 WFB 310900713H Best Buy - Albuquerque, New Mexico 00 Xxxxx Xxxxxx Xxxxx Xxxx
000 XXX 310900517 Xxxxx Commerce Associates 0000-0000 Xxxxx Xxxxxx
174 WFB 310900542 Laguna Xxxxx Town Center 24365-24371 Xx Xxxx Xxxx
000 XXX 000000000 Xxxxxxx Xxxxxxx 000 Xxxxxxx Xxx.
176 WFB 310900614 Xxxx Street 000 Xxxx Xxxxxx
177 WFB 310900535 Bank of the West 00 Xxxxx Xxxxxx Xxxxx
000 XXX 310900631 Kmart Retail Plaza 0000 Xxxxx Xxxxxx
000 XXX 890900578 Wal-Mart Center 000 Xxxx Xxxxx / Xxxxxxx 000
181 WFB 310900605 Tulare Inn MHP 0000 X. Xxxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------------------
LOAN XXXXX XX XXXXX
XXXX XX. XXXXXX XXXX XXXXX XX (NCA/SCA) ZIP CODE
------------------------------------------------------------------------------------------------------------------------------------
2 Mecklenburg Charlotte NC NAP 28217
20 Xxxxx Las Vegas NV NAP 89117
00 Xxx Xxxxxxx Xxxxx Xx Xxxxxxx XX XXX 00000
60 Washington Tigard OR NAP 97223
61 Multnomah Xxxxxxxx XX XXX 00000
00 Xxxxxx Xxxxxxx XX NAP 77598
00 Xxx Xxxxxxx Xxxxxx XX XXX 00000
00 Xxxxxxxx Xxxxxx (Xxxxxxxxxx-Xxxxx) SC NAP 29456
00 Xxxxxxxx Xxxxx Xxxxxxxx Xxxxx XX XXX 00000
87 Hillsborough Nashua NH NAP 3060
00 Xxxxxxx Xxxxx (XxXxxxx xxxx) TX NAP 78577
00 Xxxxxxx Xxxxx Xxxxxxxxx XX NAP 2760
93 Xxxx Schaumburg IL NAP 60173
00 Xxx Xxxxx Xxx Xxxxx XX XXX 00000
98 Stanislaus Xxxxxxx XX XXX 00000
000 Xxxxxxxxxx Xxxxxx Xxxxxxx XX XXX 00000
000 Xxxxxxxx Xxxx XX NAP 85201
108 Yolo Xxxxx XX XXX 00000
000 Xxxxxxxx Xx. Xxxxx Xxxx XX XXX 00000
120 Hennepin Xxxxxxxxxxx XX XXX 00000
122 Yolo Xxxxx XX XXX 00000
000 Xxxxx Xxxxx Xxxxxxxxx XX XXX 00000
000 Xxxx Xxxx Xxxxx XX XXX 00000
000 Xxxxxxx Xxxxxxxx XX NAP 66044
000 Xxxxxxx Xxxxx XX NAP 68110
000 Xxxxxxxxx Xxxxxxxx XX NAP 80232
000 Xxxxx Xxxxxxx XX NAP 01810
000 Xxxxxx Xxxxxxx Xxxxxxxx XX NAP 20109
000 Xxxxxxxxxx Xxxxxx Xxxxxxx XX XXX 00000
000 Xx Xxxx Xxxxxxxx Xxxxxxx XX XXX 00000
000 Xxxxxx XxXxxxxx XX NAP 40031
000 Xxx Xxxxx Xxxxxxxx XX XXX 00000
000 Xxxxx Xxx Xxxxx XX XXX 00000
000 Xxx Xxxxxxxxx Xxx Xxxxxxxxx XX XXX 00000
000 Xxx Xxxxxxx Xxxxxxx XX XXX 00000
000 Xxx Xxxxxxx Xxxxxxxx XX XXX 00000
000 Xxxxxxxx Xxxxxxx XX NAP 67203
000 Xxx Xxxxxxx Xxxxxx Xxxx XX XXX 00000
000 Xxxxxx Xxxxxx XX NAP 75224
000 Xxx Xxxxxxx Xxxxxx Xxxx XX XXX 00000
000 Xxxxx Xxxxx Xxx Xxxx XX XXX 00000
148 Xxxxxx Xxxxx OR NAP 97305
000 Xxx Xxxxxxx Xxxxxxxx XX XXX 00000
150 Maricopa Xxxxxxx XX XXX 00000
000 Xxxxxxxxxx Xxxxxxxxxxx XX NAP 87110
000 Xxxxxx Xxxxxx XX XXX 00000
000 Xxxx Xxxxxxxxxxx XX XXX 00000
000 Xxxxxxxxxx Xxxxxx Xxxxxxx XX XXX 00000
000 Xxxxxxx Xxxxxxxxx XX NAP 76015
000 Xxxxxxx Xxxx Xxxxx XX NAP 76116
158 Maricopa Xxxxx XX XXX 00000
000 Xxxxxx Xxxxx Xxxx XX XXX 00000
000 Xxxxxx Xxxxxx XX NAP 75237
000 Xxxx Xxxxxxxx XX NAP 60443
000 Xxx Xxxxx Xx Xxxx XX XXX 00000
000 Xxxxxx Xxxxxxx XX NAP 77070
000 Xxx Xxxxxxxxxx Xxxxxxxxxxx XX XXX 00000
000 Xxxxxxxx Xxxxxxxxx XX NAP 37205
000 Xxxxxxx Xxxxxxx Xxxxx XX NAP 33069
000 Xxxxxxxxx Xxxxxxxx XX NAP 77706
000 Xxxx Xxxx Xxxxxxxx XX NAP 77469
000 Xxxxxxx Xxxx Xxxxxxx XX NAP 80525
000 Xxxxxx Xxxxx Xxxxxx XX XXX 00000
000 Xxx Xxxxxxxxxx Xxxxxxxxxxx XX XXX 00000
000 Xxxxxxxxxx Xxxxxxxxxxx XX NAP 87123
000 Xxx Xxxxxxx Xxxxxxxx XX XXX 00000
000 Xxxxxx Xxxxxx Xxxxx XX XXX 00000
000 Xxx Xxxxx Xx Xxxxx XX XXX 00000
000 Xxxxx Xxxxx Xxxxx Xxxxx XX XXX 00000
000 Xxxxxx Xxxxx Xxxxxxx XX XXX 00000
179 Sacramento Xxxxxx XX XXX 00000
000 Xxxxxxxxxx Xxxxxxxxxx XX NAP 38555
181 Tulare Xxxxxx XX XXX 00000
-----------------------------------------------------------------------------------------------------------------------------------
LOAN NUMBER OF ORIGINAL
POOL NO. MSA PROPERTY TYPE PROPERTY SUB-TYPE PROPERTIES BALANCE
-----------------------------------------------------------------------------------------------------------------------------------
2 Charlotte Office Suburban 1 $73,000,000
20 Las Vegas Retail Anchored 1 $20,000,000
00 Xxx Xxxxxxx - Xxxx Xxxxx, XX Industrial Warehouse 1 $10,450,000
60 Portland Retail Big Box 2 $6,952,247
61 Portland Retail Anchored 2 $6,797,753
67 Houston Other Theatre 1 $6,234,000
70 LA/Long Beach Office Suburban 1 $6,000,000
73 Charleston/Berkely Retail Anchored 1 $5,800,000
84 Virginia Beach Retail Big Box 12 $4,840,223
87 Boston Retail Big Box 12 $4,553,631
91 McAllen/Brownsville/Harlingen Office Suburban 1 $4,250,000
92 Providence/Boston Retail Big Box 12 $4,139,665
93 Chicago Retail Big Box 12 $4,012,291
96 San Diego Office Suburban 1 $4,000,000
98 San Francisco-Sacramento Retail Anchored 1 $4,000,000
103 Sacramento, CA Office Suburban 1 $3,600,000
106 Phoenix/Mesa Office Medical 1 $3,500,000
108 Yolo, CA Multifamily Garden 1 $3,300,000
115 Minneapolis/St. Xxxx Retail Big Box 1 $3,000,000
120 Minneapolis/St. Xxxx Retail Anchored 1 $2,650,000
122 Yolo, CA Multifamily Garden 1 $2,400,000
123 San Jose, CA Office Suburban 1 $2,400,000
000 Xxxxx/Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx 1 $2,350,000
125 Xxxxxxxx Multifamily Low-Rise 1 $2,300,000
126 Omaha Industrial Warehouse 1 $2,300,000
127 Denver Retail Shadow Anchored 1 $2,250,000
129 Lawrence, MA-NH Industrial Warehouse 1 $2,175,000
130 Washington DC/VA MSA Industrial Flex Industrial 1 $2,170,000
131 Sacramento, CA Office Suburban 1 $2,000,000
000 Xxxxxxxx Xxxxxxx Retail Unanchored 1 $2,000,000
136 Louisville Multifamily Low-Rise 1 $2,000,000
137 San Diego CA Mobile Home Park Mobile Home Park 1 $2,000,000
000 Xxx Xxxxx, XX Office Urban 1 $2,000,000
139 San Francisco Office Urban 1 $2,000,000
000 Xxx Xxxxxxx-Xxxx Xxxxx, XX Industrial Light Industrial 1 $2,000,000
141 Los Angeles Multifamily Low-Rise 1 $1,970,000
000 Xxxxxxx, XX Retail Big Box 1 $1,900,000
144 Los Angeles Office Suburban 1 $1,800,000
145 Dallas Multifamily Garden 1 $1,850,000
146 Los Angeles-Riverside-Orange County Industrial Flex Industrial 1 $1,740,000
147 San Jose, CA Office Suburban 1 $1,700,000
148 Salem, OR Retail Big Box 1 $1,700,000
149 Los Angles/Long Beach Industrial Warehouse 1 $1,700,000
150 Phoenix Retail Shadow Anchored 1 $1,700,000
000 Xxxxxxxxxxx, XX Retail Big Box 1 $1,700,000
000 Xxxxxx, XX Retail Shadow Anchored 1 $1,700,000
000 Xxxxxxxxxxx, XX Self Storage Self Storage 1 $1,665,000
000 Xxxxxxxxxx, XX Industrial Warehouse 1 $1,600,000
156 Dallas/Fort Worth Retail Big Box 12 $1,528,492
157 Dallas/Fort Worth Retail Big Box 12 $1,528,492
158 Phoenix/ Mesa Office Medical 1 $1,500,000
159 Los Angeles-Riverside-Orange County, CA Retail Shadow Anchored 1 $1,500,000
160 Dallas/Fort Worth Retail Big Box 12 $1,464,804
161 Chicago Retail Big Box 12 $1,448,883
000 Xxx Xxxxx, XX Multifamily Garden 1 $1,400,000
163 Houston Retail Big Box 12 $1,337,430
000 Xxxxxxxxx-Xxx Xxxxxxxxxx, XX Self Storage Self Storage 1 $1,325,000
000 Xxxxxxxxx, XX Retail Retail/Office 1 $1,250,000
166 Ft. Lauderdale Industrial Flex Industrial 1 $1,250,000
167 Houston Retail Big Box 12 $1,241,899
168 Houston Self Storage Self Storage 1 $1,250,000
169 Denver/Fort Xxxxxxx Retail Big Box 12 $1,222,793
170 Sacramento Office Retail/Office 1 $1,225,000
000 Xxxxxxxxx-Xxx Xxxxxxxxxx, XX Self Storage Self Storage 1 $1,200,000
172 Albuquerque Retail Big Box 12 $1,181,397
173 Los Angeles Industrial Light Industrial 1 $1,100,000
174 Los Angeles-Riverside-Orange County Retail Unanchored 1 $1,052,000
000 Xxx Xxxxx, XX Multifamily Low-Rise 1 $1,030,000
000 Xxx Xxxx, XX Industrial Light Industrial 1 $1,000,000
177 Oakland Office Suburban 1 $1,000,000
179 Sacramento Retail Shadow Anchored 1 $850,000
180 Nashville Retail Shadow Anchored 1 $810,000
181 Visalia-Tulare-Portervile Mobile Home Park Mobile Home Park 1 $700,000
------------------------------------------------------------------------------------------------------------------------------------
LOAN CUT-OFF DATE % BY CUT-OFF YEAR
POOL NO. BALANCE SORT DATE BALANCE CUT-OFF DATE UNITS/SF YEAR BUILT RENOVATED
------------------------------------------------------------------------------------------------------------------------------------
2 $73,000,000 $73,000,000 Calc 03/01/2002 974,329 1996 NAP
20 $19,952,991 $19,952,991 Calc 03/01/2002 127,485 1999-2001 NAP
43 $10,395,315 $10,395,315 Calc 03/01/2002 306,890 2000 NAP
60 $6,909,515 $6,909,515 Calc 03/01/2002 100,376 1996 NAP
61 $6,755,971 $6,755,971 Calc 03/01/2002 117,766 1988 NAP
67 $6,070,845 $6,070,845 Calc 03/01/2002 83,660 2000 NAP
70 $5,976,778 $5,976,778 Calc 03/01/2002 170,706 1970 1997
73 $5,781,396 $5,781,396 Calc 03/01/2002 52,607 2000 NAP
84 $4,832,683 $4,832,683 Calc 03/01/2002 47,441 1999 NAP
87 $4,546,537 $4,546,537 Calc 03/01/2002 45,345 1999 NAP
91 $4,216,096 $4,216,096 Calc 03/01/2002 55,818 1994 1999
92 $4,133,216 $4,133,216 Calc 03/01/2002 45,638 1999 NAP
93 $4,006,040 $4,006,040 Calc 03/01/2002 51,104 1965 1992
96 $3,979,824 $3,979,824 Calc 03/01/2002 71,138 1980 1995
98 $3,969,954 $3,969,954 Calc 03/01/2002 79,675 1977 1994
103 $3,581,727 $3,581,727 Calc 03/01/2002 40,224 1984 2001
106 $3,491,062 $3,491,062 Calc 03/01/2002 56,631 1982 1994
108 $3,286,428 $3,286,428 Calc 03/01/2002 138 1976 1995
115 $2,987,525 $2,987,525 Calc 03/01/2002 92,469 1980 NAP
120 $2,629,361 $2,629,361 Calc 03/01/2002 61,266 1983 NAP
122 $2,390,129 $2,390,129 Calc 03/01/2002 60 1983 NAP
123 $2,358,740 $2,358,740 Calc 03/01/2002 17,883 1980 1999
124 $2,336,804 $2,336,804 Calc 03/01/2002 83,220 1999 2000
125 $2,288,095 $2,288,095 Calc 03/01/2002 91 1990 NAP
126 $2,264,712 $2,264,712 Calc 03/01/2002 97,683 1988 2000
127 $2,242,566 $2,242,566 Calc 03/01/2002 29,691 1982 2001
129 $2,164,594 $2,164,594 Calc 03/01/2002 40,020 2001 NAP
130 $2,143,193 $2,143,193 Calc 03/01/2002 38,655 1989 1997
131 $1,992,380 $1,992,380 Calc 03/01/2002 41,594 1981 NAP
132 $1,988,875 $1,988,875 Calc 03/01/2002 39,403 1969 2000
136 $1,986,586 $1,986,586 Calc 03/01/2002 48 2000 NAP
137 $1,984,763 $1,984,763 Calc 03/01/2002 129 1974 2000
138 $1,984,634 $1,984,634 Calc 03/01/2002 30,318 1999 N/A
139 $1,984,418 $1,984,418 Calc 03/01/2002 18,430 1913 1991
140 $1,981,760 $1,981,760 Calc 03/01/2002 100,309 1954 1990
141 $1,960,919 $1,960,919 Calc 03/01/2002 42 1969 NAP
142 $1,885,728 $1,885,728 Calc 03/01/2002 15,120 2001 NAP
144 $1,789,501 $1,789,501 Calc 03/01/2002 34,580 1982 NAP
145 $1,787,634 $1,787,634 Calc 03/01/2002 121 1963 1997
146 $1,727,852 $1,727,852 Calc 03/01/2002 26,539 1955 2000
147 $1,694,064 $1,694,064 Calc 03/01/2002 11,038 2000 NAP
148 $1,690,924 $1,690,924 Calc 03/01/2002 25,499 1994 NAP
149 $1,688,406 $1,688,406 Calc 03/01/2002 50,560 1962 2000
150 $1,688,386 $1,688,386 Calc 03/01/2002 16,534 1992 NAP
151 $1,688,269 $1,688,269 Calc 03/01/2002 59,238 1974 2001
152 $1,686,939 $1,686,939 Calc 03/01/2002 32,671 1970 2000
153 $1,656,713 $1,656,713 Calc 03/01/2002 63,180 1971 1998
155 $1,594,065 $1,594,065 Calc 03/01/2002 54,451 2001 NAP
156 $1,526,111 $1,526,111 Calc 03/01/2002 46,641 1990 1993
157 $1,526,111 $1,526,111 Calc 03/01/2002 28,050 1992 NAP
158 $1,496,094 $1,496,094 Calc 03/01/2002 24,081 1976 1994
159 $1,485,727 $1,485,727 Calc 03/01/2002 14,717 1963 1995
160 $1,462,522 $1,462,522 Calc 03/01/2002 27,700 1990 NAP
161 $1,446,626 $1,446,626 Calc 03/01/2002 28,050 1992 NAP
162 $1,395,597 $1,395,597 Calc 03/01/2002 94 1974 NAP
163 $1,335,346 $1,335,346 Calc 03/01/2002 44,383 1999 NAP
164 $1,318,405 $1,318,405 Calc 03/01/2002 53,786 1990 NAP
165 $1,245,527 $1,245,527 Calc 03/01/2002 12,475 1987 NAP
166 $1,245,338 $1,245,338 Calc 03/01/2002 23,836 2000 NAP
167 $1,239,964 $1,239,964 Calc 03/01/2002 28,255 1992 NAP
168 $1,239,056 $1,239,056 Calc 03/01/2002 38,450 1996 2000
169 $1,220,888 $1,220,888 Calc 03/01/2002 42,769 1992 2001
170 $1,217,003 $1,217,003 Calc 03/01/2002 12,598 1990 0
171 $1,194,027 $1,194,027 Calc 03/01/2002 54,590 1990 NAP
172 $1,179,557 $1,179,557 Calc 03/01/2002 45,653 1991 NAP
173 $1,092,510 $1,092,510 Calc 03/01/2002 42,517 1954 1999
174 $1,046,853 $1,046,853 Calc 03/01/2002 12,968 2000 NAP
175 $1,026,761 $1,026,761 Calc 03/01/2002 48 1978 1988
176 $992,489 $992,489 Calc 03/01/2002 21,237 1965 1991
177 $992,045 $992,045 Calc 03/01/2002 21,129 1976 1998
179 $845,933 $845,933 Calc 03/01/2002 9,880 2001 NAP
180 $805,691 $805,691 Calc 03/01/2002 13,520 1998 NAP
181 $696,781 $696,781 Calc 03/01/2002 42 1972 NAP
------------------------------------------------------------------------------------------------------------------------------------
LOAN SINGLE-TENANT OWNER-OCCUPIED >20% PERCENT LEASED
POOL NO. (Y/N) (Y/N - %) PERCENT LEASED AS OF DATE PERCENT LEASED SOURCE
------------------------------------------------------------------------------------------------------------------------------------
2 No No 94.4% 01/31/2002 RentRoll
20 No No 96.8% 11/28/2001 RentRoll
43 Yes No 100.0% 10/24/2001 Lease
60 No No 100.0% 11/13/2001 RentRoll
61 No No 100.0% 11/13/2001 RentRoll
67 Yes No 100.0% 05/03/2001 Lease
70 No No 99.4% 11/07/2001 RentRoll
73 No No 97.1% 10/30/2001 RentRoll
84 Yes No 100.0% 01/25/2002 Rent Verification Letter
87 Yes No 100.0% 01/25/2002 Rent Verification Letter
91 No No 100.0% 10/28/2001 RentRoll
92 Yes No 100.0% 01/25/2002 Rent Verification Letter
93 Yes No 100.0% 01/25/2002 Rent Verification Letter
96 No No 95.4% 12/01/2001 RentRoll
98 No No 95.9% 01/02/2002 RentRoll
103 Yes No 100.0% 10/22/2001 Lease
106 No No 96.9% 11/12/2001 RentRoll
108 No No 100.0% 09/13/2001 RentRoll
115 Yes No 100.0% 09/12/2001 RentRoll
120 No No 98.6% 10/12/2001 RentRoll
122 No No 100.0% 11/15/2001 RentRoll
123 No No 100.0% 11/19/2001 RentRoll
124 No No 100.0% 11/26/2001 RentRoll
125 No No 95.6% 10/12/2001 RentRoll
126 Yes No 100.0% 11/16/2001 RentRoll
127 No No 94.6% 11/01/2001 RentRoll
129 No Yes - 25.04% 100.0% 10/23/2001 RentRoll
130 Yes Yes - 100.00% 100.0% 10/03/2001 Lease/Verification
131 No No 100.0% 10/11/2001 RentRoll
132 No No 98.1% 11/09/2001 RentRoll
136 No No 95.8% 11/01/2001 RentRoll
137 No No 100.0% 12/12/2001 RentRoll
138 No No 89.7% 11/30/2001 RentRoll
139 No No 100.0% 10/16/2001 RentRoll
140 No Yes - 78.01% 100.0% 11/25/2001 RentRoll
141 No No 100.0% 05/01/2001 RentRoll
142 Yes No 100.0% 10/12/2001 Lease/Verification
144 No No 88.7% 10/31/2001 RentRoll
145 No No 95.9% 12/28/2001 RentRoll
146 No No 100.0% 12/05/2001 RentRoll
147 No No 100.0% 11/05/2001 RentRoll
148 Yes No 100.0% 09/12/2001 Lease
149 Yes No 100.0% 08/17/2001 Lease
150 No No 91.8% 11/27/2001 RentRoll
151 Yes No 100.0% 08/15/2001 Lease/Verification
152 No Yes - 62.20% 79.6% 11/07/2001 RentRoll
153 No No 99.5% 09/26/2001 RentRoll
155 No No 100.0% 12/12/2001 RentRoll
156 Yes No 100.0% 01/25/2002 Rent Verification Letter
157 Yes No 100.0% 01/25/2002 Rent Verification Letter
158 No No 96.8% 11/20/2001 RentRoll
159 No No 100.0% 11/06/2001 RentRoll
160 Yes No 100.0% 01/25/2002 Rent Verification Letter
161 Yes No 100.0% 01/25/2002 Rent Verification Letter
162 No No 100.0% 09/01/2001 RentRoll
163 Yes No 100.0% 01/25/2002 Rent Verification Letter
164 No No 96.3% 10/02/2001 RentRoll
165 No No 90.3% 10/01/2001 RentRoll
166 No No 100.0% 12/05/2001 RentRoll
167 Yes No 100.0% 01/25/2002 Rent Verification Letter
168 No No 90.3% 07/16/2001 RentRoll
169 Yes No 100.0% 01/25/2002 Rent Verification Letter
170 No No 93.7% 12/27/2001 RentRoll
171 No No 93.5% 10/02/2001 RentRoll
172 Yes No 100.0% 01/25/2002 Rent Verification Letter
173 No Yes - 38.86% 79.4% 10/31/2001 RentRoll
174 No No 100.0% 12/12/2001 RentRoll
175 No No 100.0% 09/01/2001 RentRoll
176 Yes No 100.0% 10/02/2001 Lease/Verification
177 Yes No 100.0% 12/24/2001 Lease/Verification
179 No No 100.0% 10/22/2001 RentRoll
180 No No 100.0% 09/12/2001 RentRoll
181 No No 96.0% 12/06/2001 RentRoll
------------------------------------------------------------------------------------------------------------------------------------
LOAN
POOL NO. BORROWER NAME
------------------------------------------------------------------------------------------------------------------------------------
2 Coliseum Transfer, Inc.
20 BOCA PARK MARKETPLACE, LLC
43 GOLDEN SPRINGS DEVELOPMENT COMPANY, LLC
00 XXXXXXX XXXX. CENTER LLC
00 XXXXXX XXXXXX L.P.
67 A-K 18 Cinema #2, L.P., a Texas limited partnership
00 XXXXXXX-XXXXX XXXX XXXXXXXX
00 XXXXXX XXXXXXXX FINANCING, LLC
84 BB (MULTI) LP
87 BB (MULTI) LP
91 BROWNSVILLE WEST SEA, LTD
92 BB (MULTI) LP
93 BB (MULTI) LP
96 XXXXXX XXXXXXXXX, M.D. AND THE YAGHDJIAN FAMILY TRUST
98 X. XXXXX, P XXXXXX AND X. XXXXXXXXX, AS CO-TRUSTEES OF THE XXX X. XXXXX FAMILY TRUST
103 XXXXXX X. XXXXXXXXXX & XXXXX X. XXXXXX LIVING TRUST DATED MAY 11, 2001
106 THE 560/1031 GROUP, LLC
108 CHAUTAUQUA ASSOCIATES, a California limited partnership
115 BERMER CORPORATION, a Wisconsin corporation
000 XXXXXXXX XXXXXX ASSOCIATES, L.L.P., an Arizona limited liability partnership
122 CHAPARRAL ASSOCIATES, a California limited partnership
123 THE STARGAZER GROUP LLC
124 COMMERCIAL RESOURCES GROUP, LLC, a Minnesota limited liability company
125 NORTHWINDS, L.L.C., a Kansas limited liability company
126 B.S. HOLDINGS, INC., a Nebraska Corporation
000 XXXXXXXX XXXXXX SHOPPING CENTER, LLC, a Colorado limited liability company
000 XXXX & X, XXX, x Xxxxxxxxxx limited liability company
130 GMR REALTY I, LLC, a Virginia domestic limited liability company
131 XXXXXXX X. XXXXXXXXXX AND XXXX X. XXXXXXXXXX, TRUSTEES OF THE TCHERKOYAN FAMILY TRUST
132 XXXXX PROPERTIES, LLC
136 XXXX & XXXXXXX LLC, a Kentucky limited liability company
000 XXXXXXXX XXXX XXXXXXX, LLC, a California limited liability company
138 3660 N. RANCHO ROAD, LLC a Nevada Limited Liability Company
139 J. XXXXXXX XXXXXXXX and XXXXXXXXX X. XXXXXXXX, TRUSTEES UNDER THE XXXXXXXX FAMILY TRUST
140 XXXX X. DESSY AND XXXXXX DESSY, AS TRUSTESS OF THE DESSY REVOCABLE LIVING TRUST
141 SAN REMO ASSOCIATES, a California limited partnership
142 XXXXX X. XXXXX AND XXXXX X. XXXXX
144 UNITED SERVICE ACCEPTANCE, INC., a California corporation AND XXXX ENTERPRISES, a California general partnership
000 XXXXXX XXXXXXX, LTD, a Texas limited partnership
146 EASTHAM XXXXXX ASSOCIATES LLC, a California limited liability company
147 0000 XXXXXX XXXXXX, LLC
148 X. XXXXX PENZER AND XXXXXXXX XXXXXXX XXXXXX, TRUSTEES OF THE X. XXXXX PENZER AND XXXXXXXX XXXXXXX XXXXXX TRUST
AGREEMENT DATED APRIL 17, 1997
149 XXXXXXXX COMMERCE PARTNERS, LLC, a California limited liability company
150 THE XXXX X. XXXXX AND XXXXXX X. XXXXX REVOCABLE TRUST
151 THE CENTER AT MIDTOWN, LLC
152 R&G FRESNO, LLC, a California limited liability company
000 XXXXXXXXXXX XXXXXXX STORAGE PARTNERS, LLC
155 XXXXXX XXXXX HIDE COMPANY, INC., a California corporation and XXXX X. XXXXX, TRUSTEE OF THE TRUST I ESTABLISHED UNDER
THE XXXXX FAMILY TRUST DATED AUGUST 6, 1985
156 BB (MULTI) LP
157 BB (MULTI) LP
000 XXXXXXXX XXXXXX MEDICAL, LLC
159 XXXXX XXXXXX
160 BB (MULTI) LP
161 BB (MULTI) LP
000 XXXXXXXXX XXXXX ASSOCIATES, a Califonia general partnership and XXXXXX XXXXX AND XXX XXXXX, TRUSTEES OF THE XXXXX
FAMILTY TRUST AGREEMENT DATED JUNE 3, 1988
163 BB (MULTI) LP
164 XXXXXXX STORAGE PARTNERS, LLC, a California limited liability company
000 XXXXX XXXXXX XXXXX, XXX, a Tennessee limited liability company AND DICKSON 46, LLC, a Tennessee limited liability
company
166 XXXXXXX COMMERCIAL CENTER, INC., a Florida corporation
167 BB (MULTI) LP
168 0000 XX 000 INVESTMENT, LTD., a Texas limited partnership
169 BB (MULTI) LP
170 BRUNSWICK CORNER PARTNERSHIP, a California limited partnership
171 FOXBOROUGH STORAGE PARTNERS, LLC, a California limited liability company
172 BB (MULTI) LP
173 XXXXX COMMERCE ASSOCIATES, a California general partnership
174 Kolnick, Inc. and Foodline, Inc. as tenants in common
175 LINCOLN APARTMENT ASSOCIATES, a California general partnership
176 XXXXX X. XXXX
177 RTG GROUP, a California general partnership
179 XXXXXX XXXXX and LARADEAN XXXXX-XXXXX
180 XXXXXX-XXXXXXXXX PROPERTIES II, LLC, a North Carolina limited liability company
181 XXXX XXXXX XXXXXXXX
------------------------------------------------------------------------------------------------------------------------------------
LOAN OWNERSHIP
POOL NO. SPONSOR LIEN STATUS INTEREST
------------------------------------------------------------------------------------------------------------------------------------
2 New York State Common Retirement Fund First Fee / Leasehold
20 Triple Five National Development Corporation First Fee
00 Xxxxx X. Xxxxxxx, Xxxxx X. Xxxxxxxx and Xxxxxx X. Flesh First Fee
60 Xxxxxx Xxxxxxx, Xxxxxxx Xxxx, Xxxxx X. Xxxx, Xxxxx X. Xxxx, and Xxxxxxx & Xxxxx Xxxx First Fee
61 Xxxxxx Xxxxxxx, Xxxxxxx Xxxx, Xxxxx X. Xxxx, Xxxxx X. Xxxx, and Xxxxxxx & Xxxxx Xxxx First Fee
67 Xxxxx Xxxxx Xxxxx Xxxxx First Fee / Leasehold
70 Xxxxx & Xxxxxxx Xxxxxxx, Xxxx Xxxxxxx, Xxxxx & Xxxx Xxxxxxxxxx, Xxxxxx & Xxxxxxx Xxxxxx First Fee
73 Xxx Xxxxxxxxxxx and Xxx Xxxxxx First Fee
84 WP Xxxxx First Fee
87 WP Xxxxx First Fee
91 Xxxx Xxxxx First Fee
92 WP Xxxxx First Fee
93 WP Xxxxx First Fee
96 Xxxxxx Xxxxxxxxx or Xxxx Xxxxxxxxx First Fee
98 Xxx Xxxxx and Xxxx Xxxxxx First Fee
103 Xxxxxx X. Xxxxxxxxxx First Fee
106 ICA, Inc., and Xxxxx Xxxxxxxx First Fee
108 Xxxx Xxxxxxxxx, Xxxx Xxxxxx, Xxxxxxx Xxx, Xxxx Xxx First Fee
115 Xxxxxx X. Xxxxxxx, Xxxxx X. Xxx, Xxxxx X. Xxxxxxx First Fee
120 Xxxxxx X. Xxxxxxxxx First Fee
122 XXXX XXXXXX, XXXX XXXXXXXXX and XXXXXXX XXX First Fee
123 Xxxxxx Xxxx First Fee
124 Xxxxx X. Xxxxxxx, Xxxx Xxxxx & Xxxxxxx Xxxxxxxxxxx First Fee
125 Xxxxxx X. Xxxxxx First Fee
126 Xxxxx Xxxxxxxx First Fee
127 Xxxxx X. Xxxxxxxx, Xxxx Xxxxxxxx First Fee
129 H. Xxxxx Xxx First Fee
130 Xxxxxxxx X. Xxxxxx, Xx. First Fee
131 Xxxxxxx Xxxxxxxxxx First Fee
000 Xxxxxxxxxx X. Xxxxx First Fee
136 Xxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxxxxxx and Xxxx Xxxxxxxxx First Fee
137 Xxxxxxx and Xxxxxxx Xxxxx, Xxxxx Xxxxxx First Fee
138 San Sebastian Properties, Inc. First Fee
139 J. Xxxxxxx Xxxxxxxx and Xxxxxxxxx Xxxxxxxx First Fee
140 Xxxx and Xxxxxx Dessy First Fee
141 Xxxxxxxx X. Xxxxxxxx First Fee
142 Xxxxx X. Xxxxx First Fee
144 Xxxxxx Xxxx First Fee
145 Xxxxx Xxxxxx and Xxxxxx Xxxxxx First Fee
146 Xxxxxx Xxxxxxxxx and Xxxxx Xxxxxxx First Fee
147 Xxxxxxx X. Xxxxx & Xxxxxxx X. Xxxxx First Fee
148 X. Xxxxx Penzer & Xxxxxxxx Xxxxxxx Xxxxxx First Fee
149 Xxxxxx X. Xxxxx, Xxxxxxx Xxxxxxxxx First Fee
150 Xxxx X. & Xxxxxx X. Xxxxx First Fee
151 Xxxxxx X. Xxxxxxxx First Fee
152 Xxxx Xxxxxxxx, Xxxxxx Xxxx, and Xxxxx Xxxx First Fee
153 Xxxxxx X. Xxxxx & Xxxxxx Xxx First Fee
155 Xxxxxx X. Xxxxx and Xxxx X. Xxxxx First Fee
156 WP Xxxxx First Fee
157 WP Xxxxx First Fee
158 Xxxxx Xxxxxxxx First Fee
159 Xxxxx Xxxxxx First Fee
160 WP Xxxxx First Fee
161 WP Xxxxx First Fee
000 Xxxxxx X. Xxxxxxxx, Xx., Xxxxxxxxx Xxxxxxxx, Xxxxxx X. X. Xxxxx, and Xxx Xxxxx First Fee
163 WP Xxxxx First Fee
164 Xxxxxx X. Xxxxx and Xxxxx X. Xxxxx First Fee
165 Xxxxx X. Xxxxxx First Fee
166 Xxxx Xxxxxx, Xxxxxxxxx Xxxxxx Xxxxxx, Xxxxx Xxxxxx, Melbourne Xxxxxxxxx First Fee
167 WP Xxxxx First Fee
000 Xxxxx Xxxxxx Xxxxxxxx, XX First Fee
169 WP Xxxxx First Fee
170 Stone Development, Xxx Xxxxx, Jr., J. Xxxx Xxxxx First Fee
171 Xxxxxx X. Xxxxx and Xxxxx X. Xxxxx First Fee
172 WP Xxxxx First Fee
173 The Xxxxxx X. and Xxxxxxxxx Xxxxxxx Family Trust, Xxxxxx Xxxxxxxxx,
Xxxxxx and Xxxxxx Xx Xxxxxxx, Go First Fee
174 Xxxxxx Xxxxxx, Xxxxxx Xxxxxx, and Xxxx Xxxxx First Fee
000 Xxxxxx X. Xxxxxxxx, Xx. and Xxxxxxxxx Xxxxxxxx First Fee
176 Xxxxx X. Xxxx First Fee
177 Xxxxxxx X. Xxxxxx, Xxxxxx Family Limited Partnership, Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxx Xxxxxx First Fee
179 Xxxxxx Xxxxx and Laradean X. Xxxxx First Fee
180 Xxxxxx X. Xxxxxx, Xxxxx X. Xxxxxxxxx First Fee
181 Xxxx Xxxxx Xxxxxxxx First Fee
------------------------------------------------------------------------------------------------------------------------------------
GROUND LEASE GROUND LEASE OUTSIDE
LOAN EXTINGUISHED UPON GROUND LEASE EXTENSION EXTENSION OPTIONS EXPIRATION DATE
POOL NO. FORECLOSURE (Y/N) EXPIRATION DATE OPTIONS (Y/N) DESCRIPTION (Y/N) (INCLUDING EXTENSIONS)
------------------------------------------------------------------------------------------------------------------------------------
2 No 04/17/2088 No NAP 04/17/2088
20 NAP NAP NAP NAP
43 NAP NAP NAP NAP
60 NAP NAP NAP NAP
61 NAP NAP NAP NAP
67 No 03/31/2020 Yes 6 - Five (5) year extension options 03/31/2050
70 NAP NAP NAP NAP
73 NAP NAP NAP NAP
84 NAP NAP NAP NAP
87 NAP NAP NAP NAP
91 NAP NAP NAP NAP
92 NAP NAP NAP NAP
93 NAP NAP NAP NAP
96 NAP NAP NAP NAP
98 NAP NAP NAP NAP
103 NAP NAP NAP NAP
106 NAP NAP NAP NAP
108 NAP NAP NAP NAP
115 NAP NAP NAP NAP
120 NAP NAP NAP NAP
122 NAP NAP NAP NAP
123 NAP NAP NAP NAP
124 NAP NAP NAP NAP
125 NAP NAP NAP NAP
126 NAP NAP NAP NAP
127 NAP NAP NAP NAP
129 NAP NAP NAP NAP
130 NAP NAP NAP NAP
131 NAP NAP NAP NAP
132 NAP NAP NAP NAP
136 NAP NAP NAP NAP
137 NAP NAP NAP NAP
138 NAP NAP NAP NAP
139 NAP NAP NAP NAP
140 NAP NAP NAP NAP
141 NAP NAP NAP NAP
142 NAP NAP NAP NAP
144 NAP NAP NAP NAP
145 NAP NAP NAP NAP
146 NAP NAP NAP NAP
147 NAP NAP NAP NAP
148 NAP NAP NAP NAP
149 NAP NAP NAP NAP
150 NAP NAP NAP NAP
151 NAP NAP NAP NAP
152 NAP NAP NAP NAP
153 NAP NAP NAP NAP
155 NAP NAP NAP NAP
156 NAP NAP NAP NAP
157 NAP NAP NAP NAP
158 NAP NAP NAP NAP
159 NAP NAP NAP NAP
160 NAP NAP NAP NAP
161 NAP NAP NAP NAP
162 NAP NAP NAP NAP
163 NAP NAP NAP NAP
164 NAP NAP NAP NAP
165 NAP NAP NAP NAP
166 NAP NAP NAP NAP
167 NAP NAP NAP NAP
168 NAP NAP NAP NAP
169 NAP NAP NAP NAP
170 NAP NAP NAP NAP
171 NAP NAP NAP NAP
172 NAP NAP NAP NAP
173 NAP NAP NAP NAP
174 NAP NAP NAP NAP
175 NAP NAP NAP NAP
176 NAP NAP NAP NAP
177 NAP NAP NAP NAP
179 NAP NAP NAP NAP
180 NAP NAP NAP NAP
181 NAP NAP NAP NAP
------------------------------------------------------------------------------------------------------------------------------------
LOAN MODIFIED FIRST P&I FIRST PAYMENT FIRST INTEREST MATURITY DATE
POOL NO. NOTE DATE LOAN (Y/N) PAYMENT DATE DATE (IO) ONLY PERIOD (MOS) OR ARD
------------------------------------------------------------------------------------------------------------------------------------
2 02/07/2002 No 04/01/2002 NAP 0 03/01/2012
20 11/23/2001 No 01/01/2002 NAP 0 12/01/2011
43 10/24/2001 No 12/01/2001 NAP 0 11/01/2011
60 11/12/2001 No 01/01/2002 NAP 0 12/01/2006
61 11/12/2001 No 01/01/2002 NAP 0 12/01/2006
67 08/24/2000 No 10/01/2000 NAP 0 09/01/2020
70 10/23/2001 No 01/01/2002 NAP 0 12/01/2011
73 10/09/2001 No 12/01/2001 NAP 0 11/01/2011
84 01/25/2002 No 03/01/2002 NAP 0 02/01/2012
87 01/25/2002 No 03/01/2002 NAP 0 02/01/2012
91 09/19/2001 No 12/01/2001 NAP 0 11/01/2011
92 01/25/2002 No 03/01/2002 NAP 0 02/01/2012
93 01/25/2002 No 03/01/2002 NAP 0 02/01/2012
96 09/25/2001 No 12/01/2001 NAP 0 11/01/2011
98 10/01/2001 No 12/01/2001 NAP 0 11/01/2021
103 10/22/2001 No 12/01/2001 NAP 0 11/01/2011
106 11/15/2001 No 01/01/2002 NAP 0 12/01/2011
108 11/16/2001 No 01/01/2002 NAP 0 12/01/2011
115 09/05/2001 No 11/01/2001 NAP 0 10/01/2011
120 09/18/2001 No 12/01/2001 NAP 0 11/01/2011
122 11/09/2001 No 01/01/2002 NAP 0 12/01/2011
123 10/30/2001 No 01/01/2002 NAP 0 12/01/2011
124 11/14/2001 No 01/01/2002 NAP 0 12/01/2011
125 09/19/2001 No 12/01/2001 NAP 0 11/01/2011
126 08/31/2001 No 11/01/2001 NAP 0 10/01/2016
127 09/07/2001 No 12/01/2001 NAP 0 11/01/2011
129 10/15/2001 No 12/01/2001 NAP 0 11/01/2011
130 10/05/2001 No 12/01/2001 NAP 0 11/01/2016
131 10/22/2001 No 01/01/2002 NAP 0 12/01/2006
132 08/27/2001 No 11/01/2001 NAP 0 10/01/2011
136 07/31/2001 No 10/01/2001 NAP 0 09/01/2011
137 08/13/2001 No 10/01/2001 NAP 0 09/01/2006
138 07/17/2001 No 09/01/2001 NAP 0 08/01/2011
139 07/27/2001 No 09/01/2001 NAP 0 08/01/2011
140 08/29/2001 No 11/01/2001 NAP 0 10/01/2011
141 07/30/2001 No 10/01/2001 NAP 0 09/01/2011
142 10/05/2001 No 12/01/2001 NAP 0 11/01/2021
144 08/22/2001 No 11/01/2001 NAP 0 10/01/2011
145 06/01/1999 Yes 08/01/1999 NAP 0 07/01/2009
146 08/10/2001 No 10/01/2001 NAP 0 09/01/2011
147 10/05/2001 No 01/01/2002 NAP 0 12/01/2011
148 08/23/2001 No 11/01/2001 NAP 0 10/01/2011
149 08/22/2001 No 10/01/2001 NAP 0 09/01/2011
150 08/14/2001 No 10/01/2001 NAP 0 09/01/2011
151 08/15/2001 No 10/01/2001 NAP 0 09/01/2011
152 07/11/2001 No 09/01/2001 NAP 0 08/01/2011
153 09/18/2001 No 12/01/2001 NAP 0 11/01/2006
155 11/09/2001 No 01/01/2002 NAP 0 12/01/2011
156 01/25/2002 No 03/01/2002 NAP 0 02/01/2012
157 01/25/2002 No 03/01/2002 NAP 0 02/01/2012
158 11/13/2001 No 01/01/2002 NAP 0 12/01/2011
159 11/01/2001 No 01/01/2002 NAP 0 12/01/2016
160 01/25/2002 No 03/01/2002 NAP 0 02/01/2012
161 01/25/2002 No 03/01/2002 NAP 0 02/01/2012
162 09/21/2001 No 12/01/2001 NAP 0 11/01/2016
163 01/25/2002 No 03/01/2002 NAP 0 02/01/2012
164 10/01/2001 No 12/01/2001 NAP 0 11/01/2006
165 08/22/2001 No 11/01/2001 NAP 0 10/01/2011
166 08/16/2001 No 11/01/2001 NAP 0 10/01/2011
167 01/25/2002 No 03/01/2002 NAP 0 02/01/2012
168 09/06/2001 No 11/01/2001 NAP 0 10/01/2011
169 01/25/2002 No 03/01/2002 NAP 0 02/01/2012
170 08/03/2001 No 10/01/2001 NAP 0 09/01/2011
171 09/27/2001 No 12/01/2001 NAP 0 11/01/2006
172 01/25/2002 No 03/01/2002 NAP 0 02/01/2012
173 08/03/2001 No 10/01/2001 NAP 0 09/01/2011
174 07/25/2001 No 09/01/2001 NAP 0 08/01/2011
175 10/04/2001 No 12/01/2001 NAP 0 11/01/2016
176 10/02/2001 No 12/01/2001 NAP 0 11/01/2021
177 07/13/2001 No 09/01/2001 NAP 0 08/01/2011
179 10/17/2001 No 12/01/2001 NAP 0 11/01/2011
180 08/23/2001 No 11/01/2001 NAP 0 10/01/2011
181 10/01/2001 No 12/01/2001 NAP 0 11/01/2011
---------------------------------------------------------------------------------------------------------------------------
LOAN MATURITY DATE ARD
POOL NO. ARD LOAN (Y/N) OF ARD LOAN RATE STEP LOCKBOX STATUS LOCKBOX TYPE
---------------------------------------------------------------------------------------------------------------------------
2 No NAP NAP Inplace Soft
20 No NAP NAP NAP NAP
43 No NAP NAP In Place Hard
60 No NAP NAP NAP NAP
61 No NAP NAP NAP NAP
67 No NAP NAP Springing Hard
70 No NAP NAP NAP NAP
73 No NAP NAP NAP NAP
84 No NAP NAP Inplace Hard
87 No NAP NAP Inplace Hard
91 No NAP NAP Springing Hard
92 No NAP NAP Inplace Hard
93 No NAP NAP Inplace Hard
96 No NAP NAP NAP NAP
98 No NAP NAP NAP NAP
103 No NAP NAP Springing Hard
106 No NAP NAP NAP NAP
108 No NAP NAP NAP NAP
115 No NAP NAP NAP NAP
120 No NAP NAP NAP NAP
122 No NAP NAP NAP NAP
123 No NAP NAP NAP NAP
124 No NAP NAP NAP NAP
125 No NAP NAP NAP NAP
126 No NAP NAP NAP NAP
127 No NAP NAP NAP NAP
129 No NAP NAP NAP NAP
130 No NAP NAP NAP NAP
131 No NAP NAP NAP NAP
132 No NAP NAP NAP NAP
136 No NAP NAP NAP NAP
137 No NAP NAP NAP NAP
138 No NAP NAP NAP NAP
139 No NAP NAP NAP NAP
140 No NAP NAP NAP NAP
141 No NAP NAP NAP NAP
142 No NAP NAP Inplace Hard
144 No NAP NAP NAP NAP
145 No NAP NAP NAP NAP
146 No NAP NAP NAP NAP
147 No NAP NAP NAP NAP
148 No NAP NAP NAP NAP
149 No NAP NAP NAP NAP
150 No NAP NAP NAP NAP
151 No NAP NAP NAP NAP
152 No NAP NAP NAP NAP
153 No NAP NAP NAP NAP
155 No NAP NAP NAP NAP
156 No NAP NAP Inplace Hard
157 No NAP NAP Inplace Hard
158 No NAP NAP NAP NAP
159 No NAP NAP NAP NAP
160 No NAP NAP Inplace Hard
161 No NAP NAP Inplace Hard
162 No NAP NAP NAP NAP
163 No NAP NAP Inplace Hard
164 No NAP NAP NAP NAP
165 No NAP NAP NAP NAP
166 No NAP NAP NAP NAP
167 No NAP NAP Inplace Hard
168 No NAP NAP NAP NAP
169 No NAP NAP Inplace Hard
170 No NAP NAP NAP NAP
171 No NAP NAP NAP NAP
172 No NAP NAP Inplace Hard
173 No NAP NAP NAP NAP
174 No NAP NAP NAP NAP
175 No NAP NAP NAP NAP
176 No NAP NAP NAP NAP
177 No NAP NAP NAP NAP
179 No NAP NAP NAP NAP
180 No NAP NAP NAP NAP
181 No NAP NAP NAP NAP
------------------------------------------------------------------------------------------------------------------------------------
LOAN
POOL NO. TERMS/DESCRIPTION OF SPRINGING LOCKBOX
------------------------------------------------------------------------------------------------------------------------------------
2 Springing Hard Lockbox - Upon the occurrence of an event of default, not waived by Lender, or upon Borrower's debt
service coveage becoming less than 1.25x, and continuing thereafter until cured for a minimum of two consequtive
quarters, the clearing account bank will sweep all funds in the clearing account into the deposit account controlled by
Lender, from which debt service and all escrows on the loan and operating expenses for the property shall be disbursed
under Lender's control in the order of priority set forth in the loan documentation utilizing an operating expense
budget approved by Lender. All funds in the clearing account and deposit account shall be subject to a security
interest in favor of Lender.
20 NAP
43 NAP
60 NAP
61 NAP
67 In the event of default, borrower shall cause all gross income from the operation of this property to be delivered to
Lender for deposit into a restricted account.
70 NAP
73 NAP
84 NAP
87 NAP
91 Required in the event of a default by Borrower or upon assumption by a third party unrelated to the Borrower.
92 NAP
93 NAP
96 NAP
98 NAP
103 Hard springing lock box to be implemented for the cash flow sweep requirements associated with re-tenanting reserve
build-up, should the County of Sacramento inform Landlord of its intent to vacate the premises at the end of its sixth
lease year (360-days prior written notice required per lease).
106 NAP
108 NAP
115 NAP
120 NAP
122 NAP
123 NAP
124 NAP
125 NAP
126 NAP
127 NAP
129 NAP
130 NAP
131 NAP
132 NAP
136 NAP
137 NAP
138 NAP
139 NAP
140 NAP
141 NAP
142 NAP
144 NAP
145 NAP
146 NAP
147 NAP
148 NAP
149 NAP
150 NAP
151 NAP
152 NAP
153 NAP
155 NAP
156 NAP
157 NAP
158 NAP
159 NAP
160 NAP
161 NAP
162 NAP
163 NAP
164 NAP
165 NAP
166 NAP
167 NAP
168 NAP
169 NAP
170 NAP
171 NAP
172 NAP
173 NAP
174 NAP
175 NAP
176 NAP
177 NAP
179 NAP
180 NAP
181 NAP
----------------------------------------------------------------------------------------------------------------------------------
LOAN CASH-AUDIT ORIGINAL TERM TO REMAINING ORIG. REM. LOAN
POOL NO. PROCEDURE (Y/N) MATURITY OR ARD TERM AMORT. AMORT. RATE CONSTANT
----------------------------------------------------------------------------------------------------------------------------------
2 No 120 120 360 360 6.660% 7.712%
20 No 120 117 360 357 7.250% 8.186%
43 No 120 116 300 296 6.680% 8.238%
60 No 60 57 240 237 6.500% 8.947%
61 No 60 57 240 237 6.500% 8.947%
67 No 240 222 240 222 9.270% 11.006%
70 No 120 117 300 297 6.750% 8.291%
73 No 120 116 360 356 7.150% 8.105%
84 No 120 119 300 299 7.490% 8.860%
87 No 120 119 300 299 7.490% 8.860%
91 No 120 116 240 236 6.750% 9.124%
92 No 120 119 300 299 7.490% 8.860%
93 No 120 119 300 299 7.490% 8.860%
96 No 120 116 300 296 6.920% 8.420%
98 No 240 236 240 236 7.250% 9.485%
103 No 120 116 300 296 6.875% 8.386%
106 No 120 117 360 357 6.830% 7.847%
108 No 120 117 300 297 6.360% 7.998%
115 No 120 115 360 355 6.750% 7.783%
120 No 120 116 240 236 6.950% 9.268%
122 No 120 117 300 297 6.360% 7.998%
123 No 120 117 120 117 7.250% 14.088%
124 No 120 117 240 237 7.250% 9.485%
125 No 120 116 300 296 6.750% 8.291%
126 No 180 175 180 175 7.300% 10.988%
127 No 120 116 360 356 7.000% 7.984%
129 No 120 116 300 296 7.250% 8.674%
130 No 180 176 180 176 7.350% 11.022%
131 No 60 57 300 297 6.850% 8.367%
132 No 120 115 300 295 7.490% 8.860%
136 No 120 114 300 294 7.520% 8.884%
137 No 60 54 300 294 6.750% 8.291%
138 No 120 113 300 293 7.510% 8.876%
139 No 120 113 300 293 7.430% 8.813%
140 No 120 115 240 235 7.330% 9.543%
141 No 120 114 360 354 7.180% 8.129%
142 No 240 236 240 236 7.250% 9.485%
144 No 120 115 300 295 7.210% 8.643%
145 No 120 88 300 268 8.030% 9.286%
146 No 120 114 300 294 7.280% 8.697%
147 No 120 117 300 297 7.400% 8.790%
148 No 120 115 300 295 7.730% 9.048%
149 No 120 114 300 294 7.420% 8.806%
150 No 120 114 300 294 7.410% 8.798%
151 No 120 114 300 294 7.350% 8.751%
152 No 120 113 300 293 7.510% 8.876%
153 No 60 56 300 296 7.000% 8.481%
155 No 120 117 300 297 7.020% 8.497%
156 No 120 119 300 299 7.490% 8.860%
157 No 120 119 300 299 7.490% 8.860%
158 No 120 117 360 357 6.730% 7.767%
159 No 180 177 180 177 7.000% 10.786%
160 No 120 119 300 299 7.490% 8.860%
161 No 120 119 300 299 7.490% 8.860%
162 No 180 176 360 356 7.250% 8.186%
163 No 120 119 300 299 7.490% 8.860%
164 No 60 56 300 296 7.000% 8.481%
165 No 120 115 360 355 7.450% 8.350%
166 No 120 115 360 355 7.260% 8.194%
167 No 120 119 300 299 7.490% 8.860%
168 No 120 115 240 235 7.650% 9.777%
169 No 120 119 300 299 7.490% 8.860%
170 No 120 114 300 294 7.680% 9.009%
171 No 60 56 300 296 7.000% 8.481%
172 No 120 119 300 299 7.490% 8.860%
173 No 120 114 300 294 7.430% 8.813%
174 No 120 113 360 353 7.470% 8.366%
175 No 180 176 360 356 7.250% 8.186%
176 No 240 236 240 236 7.250% 9.485%
177 No 120 113 300 293 7.310% 8.720%
179 No 120 116 300 296 7.250% 8.674%
180 No 120 115 300 295 7.750% 9.064%
181 No 120 116 300 296 7.500% 8.868%
-----------------------------------------------------------------------------------------------------------------------------------
LOAN MONTHLY DEBT MONTHLY DEBT NOI DSCR DSCR (AFTER ANNUAL
POOL NO. SERVICE (P&I) SERVICE (IO) NOI DSCR (AFTER IO PERIOD) DSCR IO PERIOD) DEBT SERVICE
-----------------------------------------------------------------------------------------------------------------------------------
2 $469,118 NAP 2.07 NAP 1.80 NAP $5,629,412
20 $136,435 NAP 1.54 NAP 1.47 NAP $1,637,223
43 $71,739 NAP 2.02 NAP 1.93 NAP $860,868
60 $51,834 NAP 1.87 NAP 1.71 NAP $622,009
61 $50,682 NAP 1.87 NAP 1.71 NAP $608,187
67 $57,176 NAP 1.31 NAP 1.25 NAP $686,112
70 $41,455 NAP 4.82 NAP 4.16 NAP $497,456
73 $39,174 NAP 1.42 NAP 1.37 NAP $470,083
84 $35,737 NAP 1.61 NAP 1.50 NAP $428,848
87 $33,621 NAP 1.61 NAP 1.50 NAP $403,456
91 $32,315 NAP 1.51 NAP 1.34 NAP $387,786
92 $30,565 NAP 1.61 NAP 1.50 NAP $366,778
93 $29,624 NAP 1.61 NAP 1.50 NAP $355,493
96 $28,067 NAP 3.24 NAP 2.80 NAP $336,808
98 $31,615 NAP 1.65 NAP 1.44 NAP $379,380
103 $25,158 NAP 1.56 NAP 1.40 NAP $301,893
106 $22,887 NAP 2.14 NAP 1.77 NAP $274,648
108 $21,994 NAP 3.30 NAP 3.15 NAP $263,928
115 $19,458 NAP 2.34 NAP 2.01 NAP $233,495
120 $20,466 NAP 1.91 NAP 1.68 NAP $245,592
122 $15,996 NAP 2.64 NAP 2.51 NAP $191,948
123 $28,176 NAP 1.37 NAP 1.30 NAP $338,115
124 $18,574 NAP 1.51 NAP 1.36 NAP $222,886
125 $15,891 NAP 2.02 NAP 1.88 NAP $190,692
126 $21,061 NAP 1.48 NAP 1.36 NAP $252,729
127 $14,969 NAP 2.20 NAP 2.00 NAP $179,632
129 $15,721 NAP 1.41 NAP 1.32 NAP $188,653
130 $19,932 NAP 1.36 NAP 1.27 NAP $239,180
131 $13,945 NAP 2.24 NAP 1.89 NAP $167,337
132 $14,767 NAP 2.00 NAP 1.78 NAP $177,202
136 $14,806 NAP 1.31 NAP 1.25 NAP $177,670
137 $13,818 NAP 2.75 NAP 2.71 NAP $165,819
138 $14,793 NAP 1.49 NAP 1.31 NAP $177,514
139 $14,689 NAP 1.61 NAP 1.45 NAP $176,267
140 $15,905 NAP 2.48 NAP 2.26 NAP $190,855
141 $13,345 NAP 1.98 NAP 1.90 NAP $160,146
142 $15,017 NAP 1.48 NAP 1.46 NAP $180,206
144 $12,964 NAP 1.77 NAP 1.43 NAP $155,570
145 $14,315 NAP 1.56 NAP 1.39 NAP $171,785
146 $12,610 NAP 1.99 NAP 1.85 NAP $151,326
147 $12,452 NAP 1.50 NAP 1.35 NAP $149,430
148 $12,818 NAP 1.48 NAP 1.39 NAP $153,819
149 $12,475 NAP 1.61 NAP 1.39 NAP $149,694
150 $12,464 NAP 1.65 NAP 1.54 NAP $149,562
151 $12,397 NAP 2.08 NAP 1.87 NAP $148,769
152 $12,574 NAP 1.56 NAP 1.46 NAP $150,887
153 $11,768 NAP 1.67 NAP 1.60 NAP $141,214
155 $11,329 NAP 1.75 NAP 1.58 NAP $135,947
156 $11,285 NAP 1.61 NAP 1.50 NAP $135,426
157 $11,285 NAP 1.61 NAP 1.50 NAP $135,426
158 $9,709 NAP 2.40 NAP 2.04 NAP $116,508
159 $13,482 NAP 2.06 NAP 1.91 NAP $161,789
160 $10,815 NAP 1.61 NAP 1.50 NAP $129,783
161 $10,698 NAP 1.61 NAP 1.50 NAP $128,372
162 $9,550 NAP 3.58 NAP 3.34 NAP $114,606
163 $9,875 NAP 1.61 NAP 1.50 NAP $118,497
164 $9,365 NAP 1.79 NAP 1.72 NAP $112,378
165 $8,697 NAP 1.75 NAP 1.58 NAP $104,369
166 $8,536 NAP 1.52 NAP 1.36 NAP $102,428
167 $9,169 NAP 1.61 NAP 1.50 NAP $110,033
168 $10,185 NAP 1.48 NAP 1.41 NAP $122,219
169 $9,028 NAP 1.61 NAP 1.50 NAP $108,341
170 $9,197 NAP 1.53 NAP 1.36 NAP $110,359
171 $8,481 NAP 1.78 NAP 1.70 NAP $101,776
172 $8,723 NAP 1.61 NAP 1.50 NAP $104,673
173 $8,079 NAP 1.46 NAP 1.25 NAP $96,947
174 $7,334 NAP 3.79 NAP 3.65 NAP $88,010
175 $7,026 NAP 2.17 NAP 2.01 NAP $84,317
176 $7,904 NAP 2.97 NAP 2.78 NAP $94,845
177 $7,267 NAP 3.46 NAP 3.05 NAP $87,201
179 $6,144 NAP 2.44 NAP 2.27 NAP $73,726
180 $6,118 NAP 1.61 NAP 1.46 NAP $73,418
181 $5,173 NAP 1.31 NAP 1.28 NAP $62,075
------------------------------------------------------------------------------------------------------------------------------------
CUT-OFF DATE
LOAN BALANCE PER INTEREST BALLOON LOAN BALLOON BALLOON CUT-OFF APPRAISED
POOL NO. UNIT OR SF ACCRUAL METHOD (Y/N) BALANCE LTV DATE LTV VALUE
------------------------------------------------------------------------------------------------------------------------------------
2 $74.92 30/360 No $62,256,524 47.5% 55.6% $131,200,000
20 $156.51 Actual/360 Yes $17,584,020 60.6% 68.8% $29,000,000
43 $33.87 Actual/360 Yes $8,296,866 40.7% 51.0% $20,400,000
60 $62.64 Actual/360 Yes $6,005,664 44.5% 51.2% $13,500,000
61 $62.64 Actual/360 Yes $5,872,205 44.5% 51.2% $13,200,000
67 $72.57 Actual/360 No $430,545 4.5% 63.9% $9,500,000
70 $35.01 Actual/360 Yes $4,775,721 16.8% 21.0% $28,500,000
73 $109.90 Actual/360 Yes $5,084,713 69.7% 79.3% $7,290,000
84 $59.16 Actual/360 Yes $3,938,337 51.1% 62.7% $7,600,000
87 $59.16 Actual/360 Yes $3,705,145 51.1% 62.7% $7,150,000
91 $75.53 Actual/360 Yes $2,880,948 40.3% 59.0% $7,150,000
92 $59.16 Actual/360 Yes $3,368,314 51.1% 62.7% $6,500,000
93 $59.16 Actual/360 Yes $3,264,675 51.1% 62.7% $6,300,000
96 $55.95 30/360 Yes $3,148,169 19.8% 25.0% $15,900,000
98 $49.83 Actual/360 No $167,781 2.3% 54.8% $7,250,000
103 $89.04 Actual/360 Yes $2,875,762 55.8% 69.5% $5,150,000
106 $61.65 Actual/360 Yes $3,043,658 53.4% 61.2% $5,700,000
108 $23,814.69 Actual/360 Yes $2,594,126 25.9% 32.9% $10,000,000
115 $32.31 Actual/360 Yes $2,603,348 37.3% 42.8% $6,980,000
120 $42.92 Actual/360 Yes $1,809,446 38.5% 55.9% $4,700,000
122 $39,835.49 Actual/360 Yes $1,886,636 31.4% 39.8% $6,000,000
123 $131.90 Actual/360 No $50,826 0.9% 43.7% $5,400,000
124 $28.08 Actual/360 Yes $1,622,539 49.9% 71.9% $3,250,000
125 $25,143.90 Actual/360 Yes $1,830,134 47.3% 59.1% $3,870,000
126 $23.18 Actual/360 No $65,927 1.8% 60.4% $3,750,000
127 $75.53 Actual/360 Yes $1,964,857 44.3% 50.5% $4,440,000
129 $54.09 Actual/360 Yes $1,757,504 58.6% 72.2% $3,000,000
130 $55.44 30/360 No $19,812 0.6% 64.9% $3,300,000
131 $47.90 Actual/360 Yes $1,834,475 46.4% 50.4% $3,950,000
132 $50.48 Actual/360 Yes $1,628,369 40.3% 49.2% $4,040,000
136 $41,387.22 Actual/360 Yes $1,629,242 65.2% 79.5% $2,500,000
137 $15,385.76 Actual/360 Yes $1,831,531 37.6% 40.7% $4,875,000
138 $65.46 Actual/360 Yes $1,629,072 50.1% 61.1% $3,250,000
139 $107.67 Actual/360 Yes $1,625,206 43.5% 53.1% $3,740,000
140 $19.76 Actual/360 Yes $1,384,890 29.6% 42.4% $4,675,000
141 $46,688.55 Actual/360 Yes $1,728,443 40.2% 45.6% $4,300,000
142 $124.72 Actual/360 No $79,698 2.3% 54.7% $3,450,000
144 $51.75 Actual/360 Yes $1,453,277 51.0% 62.8% $2,850,000
145 $14,773.84 Actual/360 Yes $1,531,096 61.2% 71.5% $2,500,000
146 $65.11 Actual/360 Yes $1,407,335 46.9% 57.6% $3,000,000
147 $153.48 Actual/360 Yes $1,380,349 49.7% 60.9% $2,780,000
148 $66.31 Actual/360 Yes $1,393,906 45.6% 55.3% $3,060,000
149 $33.39 Actual/360 Yes $1,380,756 55.2% 67.5% $2,500,000
150 $102.12 Actual/360 Yes $1,380,345 50.2% 61.4% $2,750,000
151 $28.50 Actual/360 Yes $1,377,875 39.1% 47.9% $3,525,000
152 $51.63 Actual/360 Yes $1,384,710 46.2% 56.3% $2,995,000
153 $26.22 Actual/360 Yes $1,529,981 57.1% 61.8% $2,680,000
155 $29.28 Actual/360 Yes $1,284,270 42.8% 53.1% $3,000,000
156 $59.16 Actual/360 Yes $1,243,686 51.1% 62.7% $2,400,000
157 $59.16 Actual/360 Yes $1,243,686 51.1% 62.7% $2,400,000
158 $62.13 Actual/360 Yes $1,300,930 48.2% 55.4% $2,700,000
159 $100.95 Actual/360 No $40,436 1.0% 35.2% $4,220,000
160 $59.16 Actual/360 Yes $1,191,864 51.1% 62.7% $2,300,000
161 $59.16 Actual/360 Yes $1,178,911 51.1% 62.7% $2,275,000
162 $14,846.78 Actual/360 Yes $1,085,628 19.9% 25.6% $5,455,000
163 $59.16 Actual/360 Yes $1,088,225 51.1% 62.7% $2,100,000
164 $24.51 Actual/360 Yes $1,217,553 58.0% 62.8% $2,100,000
165 $99.84 Actual/360 Yes $1,104,609 55.9% 63.1% $1,975,000
166 $52.25 Actual/360 Yes $1,099,323 66.6% 75.5% $1,650,000
167 $59.16 Actual/360 Yes $1,010,493 51.1% 62.7% $2,600,000
168 $32.23 Actual/360 Yes $875,343 26.5% 37.5% $3,300,000
169 $59.16 Actual/360 Yes $994,948 51.1% 62.7% $1,920,000
170 $96.60 Actual/360 Yes $1,002,606 56.5% 68.6% $1,775,000
171 $21.87 Actual/360 Yes $1,102,689 59.6% 64.5% $1,850,000
172 $59.16 Actual/360 Yes $961,265 51.1% 62.7% $1,855,000
173 $25.70 Actual/360 Yes $893,697 52.6% 64.3% $1,700,000
174 $80.73 Actual/360 Yes $929,947 20.0% 22.5% $4,650,000
175 $21,390.85 Actual/360 Yes $798,711 29.9% 38.4% $2,675,000
176 $46.73 Actual/360 No $41,945 1.5% 35.4% $2,800,000
177 $46.95 Actual/360 Yes $809,690 25.1% 30.8% $3,225,000
179 $85.62 Actual/360 Yes $686,840 30.8% 37.9% $2,230,000
180 $59.59 Actual/360 Yes $664,543 55.4% 67.1% $1,200,000
181 $16,590.03 Actual/360 Yes $569,871 53.0% 64.8% $1,075,000
---------------------------------------------------------------------------------------------------------------------------------
LOAN APPRAISAL VALUE AS FIRREA PHASE I PHASE II ENGINEERING
POOL NO. REPORT DATE OF DATE APPRAISAL (Y/N) DATE DATE REPORT DATE UCF
---------------------------------------------------------------------------------------------------------------------------------
2 12/27/2001 12/27/2001 Yes 1/2/2002 NAP 12/28/2001 $10,114,545
20 08/17/2001 01/01/2002 Yes 09/17/2001 NAP NAP $2,401,087
43 09/10/2001 09/04/2001 Yes 9/17/2001 NAP 08/28/2001 $1,663,669
60 10/09/2001 09/28/2001 Yes 10/18/2001 NAP 10/08/2001 $1,178,449
61 10/09/2001 09/27/2001 Yes 09/08/2001 NAP 10/08/2001 $919,603
67 04/15/2000 08/01/2000 Yes 4/4/2000 NAP 08/23/2000 $854,670
70 09/28/2001 09/18/2001 Yes 9/26/2001 NAP 09/24/2001 $2,070,881
73 06/25/2001 05/23/2001 Yes 5/21/2001 NAP 05/18/2001 $642,725
84 12/07/2001 12/07/2001 Yes 12/19/2001 NAP 12/23/2001 $669,485
87 01/25/2002 01/01/2002 Yes 12/19/2001 NAP 12/19/2001 $611,301
91 07/05/2001 07/05/2001 Yes 7/17/2001 NAP 07/12/2001 $520,628
92 01/25/2002 01/01/2002 Yes 12/19/2001 NAP 12/19/2001 $541,784
93 01/16/2002 12/10/2001 Yes 12/18/2001 NAP 12/26/2001 $510,048
96 08/30/2001 08/20/2001 Yes 8/27/2001 NAP 08/21/2001 $944,667
98 08/28/2001 08/15/2001 Yes 8/22/2001 NAP 08/13/2001 $545,519
103 07/06/2001 06/26/2001 Yes 6/11/2001 NAP 06/19/2001 $423,504
106 10/16/2001 10/08/2001 Yes 10/12/2001 NAP 10/10/2001 $487,372
108 11/08/2001 10/29/2001 Yes 10/16/2001 NAP 10/16/2001 $830,858
115 08/07/2001 07/26/2001 Yes NAP NAP 07/30/2001 $468,875
120 08/16/2001 08/01/2001 Yes NAP NAP 07/25/2001 $411,438
122 10/31/2001 10/29/2001 Yes NAP NAP 10/12/2001 $482,473
123 10/08/2001 10/04/2001 Yes NAP NAP 09/28/2001 $441,200
124 07/26/2001 07/20/2001 Yes NAP NAP 07/16/2001 $302,028
125 08/15/2001 08/15/2001 Yes NAP NAP 08/22/2001 $358,456
126 08/09/2001 07/27/2001 Yes NAP NAP 07/16/2001 $344,001
127 08/24/2001 08/15/2001 Yes NAP NAP 08/22/2001 $358,816
129 09/20/2001 09/10/2001 Yes NAP NAP 09/05/2001 $249,449
130 06/06/2001 05/24/2001 Yes NAP NAP 05/29/2001 $303,787
131 10/05/2001 10/03/2001 Yes NAP NAP 09/26/2001 $316,204
132 07/19/2001 07/17/2001 Yes NAP NAP 07/09/2001 $315,727
136 06/15/2001 05/22/2001 Yes NAP NAP 06/04/2001 $221,401
137 06/28/2001 06/15/2001 Yes NAP NAP 06/15/2001 $449,723
138 06/13/2001 05/29/2001 Yes NAP NAP 06/05/2001 $232,100
139 06/18/2001 06/11/2001 Yes NAP NAP 04/18/2001 $256,434
140 07/31/2001 07/23/2001 Yes NAP NAP 08/17/2001 $431,400
141 06/14/2001 06/07/2001 Yes NAP NAP 06/11/2001 $304,046
142 09/10/2001 09/10/2001 Yes NAP NAP 09/06/2001 $262,682
144 07/30/2001 07/20/2001 Yes NAP NAP 08/13/2001 $221,879
145 11/07/2000 10/27/2000 Yes 10/24/2000 NAP 10/24/2000 $238,546
146 06/28/2001 06/22/2001 Yes NAP NAP 03/14/2001 $279,451
147 09/04/2001 08/21/2001 Yes NAP NAP 08/21/2001 $202,409
148 06/28/2001 06/25/2001 Yes NAP NAP 06/26/2001 $214,547
149 08/09/2001 08/02/2001 Yes NAP NAP 07/17/2001 $208,333
150 08/03/2001 07/21/2001 Yes NAP NAP 07/18/2001 $229,998
151 02/23/2001 07/01/2001 Yes NAP NAP 06/04/2001 $278,573
152 06/04/2001 05/23/2001 Yes NAP NAP 05/29/2001 $219,728
153 08/22/2001 08/09/2001 Yes NAP NAP 08/15/2001 $225,698
155 08/23/2001 08/16/2001 Yes NAP NAP 08/01/2001 $215,392
156 12/14/2001 12/14/2001 Yes 12/12/2001 NAP 12/28/2001 $200,619
157 12/19/2002 12/10/2002 Yes 12/12/2001 NAP 12/31/2001 $200,619
158 10/16/2001 10/08/2001 Yes NAP NAP 10/12/2001 $237,453
159 10/22/2001 10/16/2001 Yes NAP NAP 10/17/2001 $308,549
160 12/19/2001 12/10/2001 Yes 12/12/2001 NAP 12/31/2001 $192,685
161 01/16/2002 12/09/2001 Yes 12/20/2001 NAP 12/26/2001 $188,907
162 08/29/2001 08/17/2001 Yes NAP NAP 08/21/2001 $382,367
163 01/08/2002 12/11/2001 Yes 12/12/2001 NAP 12/27/2001 $172,661
164 08/20/2001 08/14/2001 Yes NAP NAP 08/15/2001 $193,139
165 07/16/2001 07/07/2001 Yes NAP NAP 06/29/2001 $165,080
166 07/13/2001 07/02/2001 Yes NAP NAP 07/11/2001 $138,928
167 12/18/2001 12/13/2001 Yes 12/12/2001 NAP 12/28/2001 $164,726
168 07/16/2001 07/14/2001 Yes NAP NAP 07/06/2001 $172,019
169 01/16/2002 12/06/2001 Yes 12/17/2001 NAP 12/20/2001 $160,571
170 06/22/2001 06/19/2001 Yes NAP NAP 06/11/2001 $150,160
171 08/23/2001 08/14/2001 Yes NAP NAP 08/16/2001 $173,000
172 12/18/2002 12/05/2001 Yes 12/21/2001 NAP 12/12/2001 $164,726
173 06/27/2001 06/22/2001 Yes NAP NAP 06/15/2001 $121,385
174 06/20/2001 06/12/2001 Yes NAP NAP 06/14/2001 $320,884
175 08/29/2001 08/17/2001 Yes NAP NAP 09/17/2001 $169,121
176 09/03/2001 08/21/2001 Yes NAP NAP 08/21/2001 $263,431
177 06/15/2001 06/05/2001 Yes NAP NAP 06/06/2001 $266,091
179 10/03/2001 09/26/2001 Yes NAP NAP 09/28/2001 $167,379
180 08/02/2001 07/24/2001 Yes NAP NAP 07/12/2001 $107,513
181 08/20/2001 08/14/2001 Yes NAP NAP 08/21/2001 $79,428
------------------------------------------------------------------------------------------------------------------------------------
DATE OF YEARS OF
LOAN UNDERWRITTEN OPERATING FINANCIAL
POOL NO. NOI STATEMENT INFORMATION LARGEST TENANT
------------------------------------------------------------------------------------------------------------------------------------
2 $11,647,572 2002 2.00 Duke Fluor Daniel
20 $2,517,994 2001 1.00 Ross
43 $1,738,958 Appraisal 0.00 Performance Team
60 $1,270,205 T12 10/31/01 3.00 Wickes Furniture Co.
61 $1,026,653 T12 11/01 3.00 Associated Grocers, Inc.
67 $901,520 YTD Ann 1.00 Cinemark USA, Inc.
70 $2,399,560 YTD 9/01 3.00 Lewitt Hackman Etal
73 $666,616 T12 7/31/01 1.00 Piggly Wiggly
84 $721,677 37256 3.00 Best Buy Stores, L.P.
87 $658,958 37256 3.00 Best Buy Stores, L.P.
91 $584,821 2000 2.00 TicketMaster, LLC
92 $584,021 37256 3.00 Best Buy Stores, L.P.
93 $549,811 37256 3.00 Best Buy Stores, L.P.
96 $1,091,294 7/00 to 6/01 2.50 MusicMatch
98 $626,441 Ann 6m 6/01 2.50 Richland Market
103 $471,763 YE 2000 3.00 County of Sacramento - Public Works Agency
106 $586,477 7 MO ANN 7/01 3.00 Stuart H. Agren MD
108 $872,258 9/30/2001 3.00 NAP
115 $545,345 Appraisal 0.00 Byerly's, Inc.
120 $470,001 Ann 9m 9/01 3.00 Sullivans Newmarket
122 $506,479 T12 7/31/2001 3.00 NAP
123 $462,838 T12 9/01 3.00 Formula Systems, Inc.
124 $336,450 9/30/2001 2.00 JM Smuckers
125 $385,756 Ann 11/01 3.00 NAP
126 $374,154 Appraisal 0.00 Nogg Chemical & Paper
127 $395,345 T12 6/30/01 2.50 Lochwood Square Liquors (A)
129 $265,857 Appraisal 0.00 YKK AP America, Inc.
130 $325,210 Appraisal 0.00 Government Micro Resources, Inc.
131 $374,423 T12 9/30/01 3.00 Sutter Medical Foundation
132 $354,538 6/1/00-5/31/01 1.00 Hollywood Entertainment Corp.
136 $233,401 Ann 10mo 10/01 1.00 NAP
137 $456,489 Ann 11mo 11/01 3.00 NAP
138 $264,064 Appraisal 0.00 Inter-American Data Inc.
139 $283,820 T12 6/30/01 2.50 Old Republic Title
140 $473,293 T-12 7/31/01 3.00 New Maverick Desk, Inc.
141 $316,646 Ann 11mo 11/01 3.00 NAP
142 $265,858 Appraisal 0.00 Walgreen Company
144 $275,744 T12 6/30/01 2.50 Cyberspace Information Systems
145 $268,796 Ann 11/30/2001 1.00 NAP
146 $301,028 T12 6/30/01 2.50 Woo Agency Inc.
147 $224,217 T-12 6/30/01 1.00 Mobilehome Communities of America, Inc.
148 $228,172 Appraisal 0.00 PETsMART, Inc.
149 $241,745 2001 1.00 ENKI Health & Research Systems
150 $247,144 9 Mo. Ann 3.00 Blockbuster Video
151 $309,959 Appraisal 0.00 Superstores of America, Inc.
152 $235,595 Appraisal 0.00 Canned Foods, Inc. dba Grocery Outlet
153 $235,175 T12 6/2001 2.50 NAP
155 $237,460 Appraisal 0.00 Mail Systems, Inc.
156 $216,259 37256 3.00 Best Buy Stores, L.P.
157 $216,259 37256 3.00 Best Buy Stores, L.P.
158 $280,199 T12 7/31/01 3.00 Edward D Szmuc MD PC
159 $332,936 Ann 9m 9/01 3.00 Xxx Xxx
160 $207,706 37256 3.00 Best Buy Stores, L.P.
161 $203,634 37256 3.00 Best Buy Stores, L.P.
162 $410,567 T12 6/2001 2.50 NAP
163 $186,121 37256 3.00 Best Buy Stores, L.P.
164 $201,206 YE 9/2001 3.00 NAP
165 $182,879 Proforma 2002 3.00 Belle Meade Chiropractic Center, P.C.
166 $155,304 Proforma 0.00 Electbus Corporation
167 $177,568 37256 3.00 Best Buy Stores, L.P.
168 $180,576 T-12 (07/01) 3.00 NAP
169 $173,089 37256 3.00 Best Buy Stores, L.P.
170 $168,332 Ann 11mo 11/01 3.00 Cal Land Title Co.
171 $181,188 T-12 9/30/01 3.00 NAP
172 $177,568 37256 3.00 Best Buy Stores, L.P.
173 $141,288 Ann 10mo 10/01 3.00 Gold Coast
174 $333,529 Proforma 0.00 Sushi Wok Restaurant
175 $183,349 T12 6/2001 2.50 NAP
176 $282,090 YE 2000 3.00 California Radomes
177 $301,317 YE 2000 3.00 Bank of the West
179 $179,927 Appraisal 0.00 Home Comfort Center
180 $117,941 T12 7/2001 3.00 Dollar Tree Stores, Inc.
181 $81,528 YE 2000 3.00 NAP
------------------------------------------------------------------------------------------------------------------------------------
LEASE EXPIRATION % NSF OF
LOAN DATE OF NSF OF LARGEST THE LARGEST
POOL NO. LARGEST TENANT TENANT (SF) TENANT (%) 2ND LARGEST TENANT
------------------------------------------------------------------------------------------------------------------------------------
2 10/14/2004 135,072 13.9% Compass Group USA
20 1/31/2012 30,187 23.7% Lamps Plus
43 7/31/2011 306,890 100.0% NAP
60 11/16/2011 45,559 45.4% Comp USA
61 5/31/2008 53,720 45.6% Dollar Zone
67 1/1/2021 83,660 100.0% NAP
70 12/1/2002 14,326 8.4% West Rec Marina Mgmt
73 8/15/2020 33,407 63.5% Video World
84 04/30/2018 47,441 100.0% NAP
87 04/30/2018 45,345 100.0% NAP
91 11/30/2009 41,734 74.8% Hotel Reservations Network, Inc.
92 04/30/2018 45,638 100.0% NAP
93 04/30/2018 51,104 100.0% NAP
96 6/30/2002 11,217 15.8% Imperial Business Credit
98 1/31/2005 27,789 34.9% Marie Callenders
103 10/31/2011 40,224 100.0% NAP
106 12/31/2001 5,086 9.0% Russell A Beck, MD and Xxxx Xxxx MD
108 NAP NAP NAP NAP
115 3/31/2005 92,469 100.0% NAP
120 8/31/2003 31,321 51.1% Walgreens
122 NAP NAP NAP NAP
123 7/24/2002 4,376 24.5% Pivia
124 6/30/2005 38,202 45.9% General Fasteners
125 NAP NAP NAP NAP
126 12/31/2010 97,683 100.0% NAP
127 9/30/2006 3,836 12.9% Dr. Feelgood's Sports Bar (B)
129 06/04/2006 30,000 75.0% Alaska Diesel Electric, Inc.
130 7/31/2016 38,655 100.0% NAP
131 3/31/2004 5,180 12.5% Cross Creek Family Counseling
132 3/31/2007 9,186 23.3% Rent Way
136 NAP NAP NAP NAP
137 NAP NAP NAP NAP
138 3/31/2006 10,572 34.9% Centex Homes
139 12/31/2003 9,560 51.9% City & County of San Francisco
140 1/6/2005 78,251 78.0% Moturis, Inc.
141 NAP NAP NAP NAP
142 6/30/2021 15,120 100.0% NAP
144 MTM 2,840 8.2% Underhill Insurance Agency
145 NAP NAP NAP NAP
146 2/28/2006 3,881 14.6% Progressive Events
147 7/31/2006 5,918 53.6% Old Kent Mortg Co d/b/a Nat'l Pacific Mortgage
148 6/30/2020 25,499 100.0% NAP
149 6/30/2006 50,560 100.0% NAP
150 4/30/2004 6,500 39.3% Chopstix
151 6/30/2011 59,238 100.0% NAP
152 9/8/2015 20,321 62.2% Blockbuster, Inc.
153 NAP NAP NAP NAP
155 9/30/2011 17,753 32.6% Milgard Manufacturing, Inc.
156 04/30/2018 46,641 100.0% NAP
157 04/30/2018 28,050 100.0% NAP
158 10/31/2004 2,212 9.2% Andrews - Brachfeld, MD PC
159 7/31/2006 2,530 17.2% Mesa Dental Center
160 04/30/2018 27,700 100.0% NAP
161 04/30/2018 28,050 100.0% NAP
162 NAP NAP NAP NAP
163 04/30/2018 44,383 100.0% NAP
164 NAP NAP NAP NAP
165 5/1/2002 2,133 17.1% d/b/a Hair Voyant
166 04/30/2003 3,518 14.8% Xcellent Kars Corp.
167 04/30/2018 28,255 100.0% NAP
168 NAP NAP NAP NAP
169 04/30/2018 42,769 100.0% NAP
170 12/31/2002 3,808 30.2% Bank of the West
171 NAP NAP NAP NAP
172 04/30/2018 45,653 100.0% NAP
173 1/31/2004 16,523 38.9% Pulse Productions Inc.
174 3/2/2011 3,868 29.8% Blockbuster DVD
175 NAP NAP NAP NAP
176 8/15/2006 21,237 100.0% NAP
177 6/30/2006 21,129 100.0% NAP
179 4/16/2006 3,680 37.2% Strings Italian Cafe
180 10/31/2004 6,160 45.6% The Cato Corporation
181 NAP NAP NAP NAP
----------------------------------------------------------------------------------------------------------------------------------
LEASE EXPIRATION % NSF OF
LOAN OF 2ND LARGEST NSF OF 2ND 2ND LARGEST
POOL NO. TENANT LARGEST TENANT (SF) TENANT (%) 3RD LARGEST TENANT
----------------------------------------------------------------------------------------------------------------------------------
2 12/31/2006 133,147 13.7% Goodrich
20 11/30/2011 11,100 8.7% Sundance Catalog
43 NAP NAP NAP NAP
60 11/30/2011 25,645 25.5% Staples
61 1/31/2009 21,136 17.9% Hollywood Video
67 NAP NAP NAP NAP
70 3/14/2003 9,745 5.7% Union Bank of CA
73 4/14/2003 3,000 5.7% Sylvan Learning Center
84 NAP NAP NAP NAP
87 NAP NAP NAP NAP
91 5/14/2006 14,084 25.2% NAP
92 NAP NAP NAP NAP
93 NAP NAP NAP NAP
96 11/30/2001 10,409 14.6% Living Church of God
98 3/31/2008 11,134 14.0% Ace Hardware
103 NAP NAP NAP NAP
106 11/30/2004 3,454 6.1% Neurological Physicians of Arizona
108 NAP NAP NAP NAP
115 NAP NAP NAP NAP
120 1/31/2004 10,922 17.8% Rent-A-Center (Bldg 3)
122 NAP NAP NAP NAP
123 2/4/2004 4,208 23.5% Peninsula Bible Church
124 5/31/2004 12,967 15.6% Schiele Enterprises
125 NAP NAP NAP NAP
126 NAP NAP NAP NAP
127 12/31/2002 2,800 9.4% Cardsmart (B)
129 6/4/2011 10,020 25.0% NAP
130 NAP NAP NAP NAP
131 10/31/2004 3,996 9.6% Transportation Mgmt. Concepts
132 10/31/2002 3,022 7.7% Sherman, Inc.
136 NAP NAP NAP NAP
137 NAP NAP NAP NAP
138 8/31/2003 6,216 20.5% Centex Homes
139 6/30/2011 8,870 48.1% NAP
140 3/31/2003 22,058 22.0% NAP
141 NAP NAP NAP NAP
142 NAP NAP NAP NAP
144 MTM 2,083 6.0% Warner Financial Group
145 NAP NAP NAP NAP
146 9/30/2004 3,280 12.4% Xxxxxxx Xxxxx
147 2/28/2006 4,490 40.7% Nexgen Investment Group
148 NAP NAP NAP NAP
149 NAP NAP NAP NAP
150 5/31/2002 2,405 14.5% Tower Cleaners
151 NAP NAP NAP NAP
152 2/14/2011 4,000 12.2% Quizno's Classic Subs
153 NAP NAP NAP NAP
155 6/14/2004 13,612 25.0% EdFund
156 NAP NAP NAP NAP
157 NAP NAP NAP NAP
158 10/31/2002 2,029 8.4% Health First Primary Care PLLC
159 12/31/2002 2,000 13.6% French's Cupcake Bakery
160 NAP NAP NAP NAP
161 NAP NAP NAP NAP
162 NAP NAP NAP NAP
163 NAP NAP NAP NAP
164 NAP NAP NAP NAP
165 4/30/2002 2,000 16.0% Dr. Parrish
166 3/31/2003 2,100 8.8% Tropic Sunrise
167 NAP NAP NAP NAP
168 NAP NAP NAP NAP
169 NAP NAP NAP NAP
170 12/31/2005 3,534 28.1% 1st Union Securities
171 NAP NAP NAP NAP
172 NAP NAP NAP NAP
173 7/31/2002 7,650 18.0% A.C.O. Labs
174 10/19/2010 3,035 23.4% Happy Nails
175 NAP NAP NAP NAP
176 NAP NAP NAP NAP
177 NAP NAP NAP NAP
179 7/31/2011 2,400 24.3% Meissner Sewing Center
180 1/31/2009 4,240 31.4% Rentway TTIG, L.P.
181 NAP NAP NAP NAP
------------------------------------------------------------------------------------------------------------------------------------
LEASE EXPIRATION % NSF OF
LOAN OF 3RD LARGEST NSF OF 3RD 3RD LARGEST RELATED
POOL NO. TENANT LARGEST TENANT (SF) TENANT (%) BORROWERS (Y/N) RELATED BORROWER LIST
------------------------------------------------------------------------------------------------------------------------------------
2 8/31/2010 119,552 12.3% No
20 11/30/2005 7,942 6.2% No
43 NAP NAP NAP No
60 11/30/2011 24,482 24.4% No
61 12/31/2003 8,950 7.6% No
67 NAP NAP NAP No
70 10/1/2004 9,388 5.5% No
73 11/9/2005 2,400 4.6% No
84 NAP NAP NAP No
87 NAP NAP NAP No
91 NAP - 0.0% No
92 NAP NAP NAP No
93 NAP NAP NAP No
96 12/31/2003 7,690 10.8% No
98 10/31/2006 9,216 11.6% No
103 NAP NAP NAP No
106 10/31/2006 3,436 6.1% Yes 0000 X. Xxxxxxxx Xxxxxx (173).
108 NAP NAP NAP Yes Chaparral Apartments (138).
115 NAP NAP NAP No
120 12/31/2004 3,367 5.5% No
122 NAP NAP NAP Yes Chautauqua Apartments (122).
123 7/21/2004 3,233 18.1% No
124 2/28/2006 12,900 15.5% No
125 NAP NAP NAP No
126 NAP NAP NAP No
127 3/31/2006 2,640 8.9% No
129 NAP NAP NAP No
130 NAP NAP NAP No
131 7/31/2003 3,834 9.2% No
132 2/28/2002 2,500 6.3% No
136 NAP NAP NAP No
137 NAP NAP NAP No
138 11/30/2005 5,030 16.6% No
139 NAP NAP NAP No
140 NAP NAP NAP No
141 NAP NAP NAP No
142 NAP NAP NAP No
144 MTM 1,540 4.5% No
145 NAP NAP NAP No
146 12/31/2003 3,243 12.2% Yes Yates Commerce Associates (182).
147 7/31/2006 630 5.7% No
148 NAP NAP NAP No
149 NAP NAP NAP No
150 4/30/2002 1,704 10.3% No
151 NAP NAP NAP No
152 2/28/2008 1,690 5.2% No
153 NAP NAP NAP Yes Victorville South Self Storage (181),
Borrego Self Storage (176).
155 8/30/2006 13,612 25.0% No
156 NAP NAP NAP No
157 NAP NAP NAP No
158 12/31/2005 2,029 8.4% Yes 000 X. Xxxxx Xxxx (120).
159 12/31/2006 1,950 13.2% No
160 NAP NAP NAP No
161 NAP NAP NAP No
162 NAP NAP NAP Yes Lincoln Estates (184).
163 NAP NAP NAP No
164 NAP NAP NAP Yes Victorville South Self Storage (181),
A-American Truxtun, Bakersfield (170).
165 10/31/2002 1,512 12.1% No
166 3/31/2003 2,100 8.8% No
167 NAP NAP NAP No
168 NAP NAP NAP No
169 NAP NAP NAP No
170 6/30/2003 2,308 18.3% No
171 NAP NAP NAP Yes A-American Truxtun, Bakersfield (170),
Borrego Self Storage (176).
172 NAP NAP NAP No
173 3/31/2002 6,597 15.5% Yes Eastham Industrial Park (163).
174 1/18/2011 1,826 14.1% No
175 NAP NAP NAP Yes Grossmont Estates (175).
176 NAP NAP NAP No
177 NAP NAP NAP No
179 07/01/2006 2,100 21.3% No
180 11/30/2005 3,120 23.1% No
181 NAP NAP NAP No
------------------------------------------------------------------------------------------------------------------------------------
CROSS SINGLE NOTE /
COLLATERALIZED MULTIPLE ADDITIONAL
LOAN / CROSS PROPERTY COLLATERAL
POOL NO. DEFAULTED (Y/N) LOAN (Y/N) CROSSED LOAN LIST (Y/N) DESCRIPTION OF ADDITIONAL COLLATERAL
------------------------------------------------------------------------------------------------------------------------------------
2 No No No NAP
20 No No No NAP
43 No No Yes $1,156,514 LC from Tenant (Borrower is
beneficiary) as security for Tenants
obligations under their lease. LC to be
increased and/or decreased pursuant to
Section 6 of Ex A to Note.
60 No Yes Powell Street Station (45). No NAP
61 No Yes Cascade Boulevard Center (44). No NAP
67 No No No NAP
70 No No No NAP
73 No No No NAP
84 No Yes No NAP
87 No Yes No NAP
91 No No No NAP
92 No Yes No NAP
93 No Yes No NAP
96 No No No NAP
98 No No No NAP
103 No No No NAP
106 No No No NAP
108 No No No NAP
115 No No No NAP
120 No No No NAP
122 No No No NAP
123 No No No NAP
124 No No No NAP
125 No No No NAP
126 No No No NAP
127 No No No NAP
129 No No No NAP
130 No No No NAP
131 No No No NAP
132 No No No NAP
136 No No No NAP
137 No No No NAP
138 No No No NAP
139 N/A No No NAP
140 No No No NAP
141 No No No NAP
142 No No No NAP
144 No No No NAP
145 No No No NAP
146 No No No NAP
147 No No No NAP
148 No No No NAP
149 No No No NAP
150 No No No NAP
151 No No No NAP
152 No No No NAP
153 No No No NAP
155 No No No NAP
156 No Yes No NAP
157 No Yes No NAP
158 No No No NAP
159 No No No NAP
160 No Yes No NAP
161 No Yes No NAP
162 No No No NAP
163 No Yes No NAP
164 No No No NAP
165 No No No NAP
166 No No No NAP
167 No Yes No NAP
168 No No No NAP
169 No Yes No NAP
170 No No No NAP
171 No No No NAP
172 No Yes No NAP
173 No No No NAP
174 NAV No No NAP
175 No No No NAP
176 No No No NAP
177 No No No NAP
179 No No No NAP
180 No No No NAP
181 No No No NAP
------------------------------------------------------------------------------------------------------------------------------------
TAX SERVICE INITIAL TAX ONGOING TAX TAX RESERVE SPRINGING RESERVE
LOAN TAX ESCROW CONTRACT IN ESCROW ESCROW - CAP ($ AND REQUIREMENT
POOL NO. IN PLACE (Y/N) PLACE (Y/N) AMOUNT ($) MONTHLY ($) DESCRIPTION) FOR TAX (Y/N)
------------------------------------------------------------------------------------------------------------------------------------
2 No Yes $0 $0 NAP Yes
20 Yes Yes $36,707 $36,707 NAP No
43 No Yes $0 $0 NAP No
60 Yes Yes $24,685 $12,343 NAP No
61 Yes Yes $24,137 $12,068 NAP No
67 Yes Yes $61,200 $6,753 NAP No
70 No Yes $0 $0 NAP No
73 Yes Yes $9,086 $826 NAP No
84 No Yes $0 $0 NAP Yes
87 No Yes $0 $0 NAP Yes
91 Yes Yes $36,295 $7,114 NAP No
92 No Yes $0 $0 NAP Yes
93 No Yes $0 $0 NAP Yes
96 Yes Yes $7,848 $3,924 NAP No
98 Yes Yes $47,912 $5,989 NAP No
103 Yes Yes $7,082 $3,541 NAP No
106 Yes Yes $25,326 $12,663 NAP No
108 No Yes $0 $0 NAP No
115 No Yes $0 $0 NAP Yes
120 Yes Yes $30,385 $15,191 NAP No
122 Yes Yes $10,977 $3,659 NAP No
123 No Yes $0 $0 NAP No
124 Yes Yes $2,711 $2,711 NAP No
125 Yes Yes $0 $3,469 NAP No
126 No Yes $0 $0 NAP No
127 Yes Yes $32,904 $5,484 NAP No
129 Yes Yes $4,901 $4,901 NAP No
130 Yes Yes $0 $1,538 NAP No
131 No Yes $0 $0 NAP No
132 Yes Yes $17,595 $3,519 NAP No
136 Yes Yes $0 $1,714 NAP No
137 No Yes $0 $0 NAP No
138 Yes Yes $9,546 $3,182 NAP No
139 No Yes $0 $0 NAP Yes
140 Yes Yes $18,522 $2,646 NAP No
141 Yes Yes $10,542 $1,757 NAP No
142 No Yes $0 $0 NAP Yes
144 No Yes $0 $0 NAP No
145 Yes Yes $10,143 $2,123 NAP No
146 Yes Yes $11,286 $1,881 NAP No
147 Yes Yes $8,271 $2,739 NAP No
148 No Yes $0 $0 NAP Yes
149 No Yes $0 $0 NAP No
150 Yes Yes $15,150 $3,030 NAP No
151 Yes Yes $14,165 $2,833 NAP No
152 No Yes $0 $0 NAP No
153 Yes Yes $13,272 $1,659 NAP No
155 No Yes $0 $0 NAP No
156 No Yes $0 $0 NAP Yes
157 No Yes $0 $0 NAP Yes
158 Yes Yes $7,276 $3,638 NAP No
159 No Yes $0 $0 NAP No
160 No Yes $0 $0 NAP Yes
161 No Yes $0 $0 NAP Yes
162 No Yes $0 NAP No
163 No Yes $0 $0 NAP Yes
164 Yes Yes $11,240 $1,405 NAP No
165 Yes Yes $19,280 $1,928 NAP No
166 Yes Yes $7,236 $603 NAP No
167 No Yes $0 $0 NAP Yes
168 Yes Yes $13,820 $1,382 NAP No
169 No Yes $0 $0 NAP Yes
170 Yes Yes $8,634 $1,439 NAP No
171 Yes Yes $11,352 $1,419 NAP No
172 No Yes $0 $0 NAP Yes
173 Yes Yes $7,638 $1,273 NAP No
174 No Yes $0 $0 NAP No
175 No Yes $0 $0 NAP No
176 Yes Yes $2,360 $295 NAP No
177 No Yes $0 $0 NAP Yes
179 No Yes $0 $0 NAP No
180 Yes Yes $2,367 $263 NAP No
181 Yes Yes $1,560 $780 NAP No
-----------------------------------------------------------------------------------------------------------------------------------
LOAN
POOL NO. TERMS OR CONDITIONS FOR SPRINGING TAX RESERVE REQUIREMENT
-----------------------------------------------------------------------------------------------------------------------------------
2 Actual DSCR falls below 1.25x, as tested on a quarterly basis
20 No
43 Xx
00 Xx
00 Xx
00 Xx
00 Xx
73 No
84 Failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P or loan default
87 Failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P or loan default
91 No
92 Failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P or loan default
93 Failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P or loan default
96 Xx
00 Xx
000 Xx
000 Xx
000 Xx
115 Release of Tenant Responsibility
120 No
122 No
123 No
124 No
125 No
126 No
127 No
129 No
130 No
131 No
132 No
136 No
137 No
138 No
139 Release of Tenant Responsibility
140 No
141 No
142 Release of Tenant Responsibility
144 No
145 No
146 No
147 No
148 Release of Tenant Responsibility
149 No
150 No
151 No
152 No
153 No
155 No
156 Failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P or loan default
157 Failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P or loan default
158 No
159 No
160 Failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P or loan default
161 Failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P or loan default
162 No
163 Failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P or loan default
164 No
165 No
166 No
167 Failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P or loan default
168 No
169 Failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P or loan default
170 No
171 No
172 Failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P or loan default
173 No
174 No
175 No
176 No
177 Release of Tenant Responsibility
179 No
180 No
181 No
--------------------------------------------------------------------------------------------------------------------------------
INITIAL ONGOING INSURANCE
INTEREST ON INSURANCE INSURANCE INSURANCE RESERVE SPRINGING RESERVE
LOAN TAX ESCROW ESCROW IN ESCROW ESCROW - CAP ($ AND REQUIREMENT FOR
POOL NO. PAID TO: PLACE (Y/N) AMOUNT ($) MONTHLY ($) DESCRIPTION) INSURANCE (Y/N)
--------------------------------------------------------------------------------------------------------------------------------
2 Servicer No $0 $0 NAP Yes
20 Servicer Yes $18,963 $1,805 NAP No
43 NAP No $0 $0 NAP No
60 Servicer No $0 $0 NAP No
61 Servicer No $0 $0 NAP No
67 Servicer Yes $940 $235 NAP No
70 NAP No $0 $0 NAP No
73 Servicer Yes $9,765 $1,085 NAP No
84 Borrower No $0 $0 NAP Yes
87 Borrower No $0 $0 NAP Yes
91 Servicer Yes $900 $150 NAP No
92 Borrower No $0 $0 NAP Yes
93 Borrower No $0 $0 NAP Yes
96 Servicer Yes $2,200 $200 NAP No
98 Servicer Yes $6,816 $3,408 NAP No
103 Servicer No $0 $0 NAP No
106 Servicer Yes $225 $225 NAP No
108 NAP No $0 $0 NAP No
115 NAP No $0 $0 NAP Yes
120 Servicer Yes $4,038 $673 NAP No
122 Servicer Yes $2,526 $842 NAP No
123 NAP No $0 $0 NAP No
124 Servicer Yes $4,340 $620 NAP No
125 Servicer Yes $9,099 $1,011 NAP No
126 NAP No $0 $0 NAP No
127 Servicer Yes $9,262 $842 NAP No
129 Servicer No $0 $0 NAP No
130 Servicer Yes $11,875 $2,375 NAP No
131 NAP No $0 $0 NAP No
132 Servicer Yes $2,781 $309 NAP No
136 Servicer Yes $4,137 $591 NAP No
137 NAP No $0 $0 NAP No
138 Servicer Yes $4,233 $1,411 NAP No
139 NAP No $0 $0 NAP Yes
140 Servicer Yes $1,127 $161 NAP No
141 Servicer Yes $8,490 $1,415 NAP No
142 NAP No $0 $0 NAP Yes
144 NAP No $0 $0 NAP No
145 Borrower Yes $3,432 $1,022 NAP No
146 Servicer Yes $2,223 $247 NAP No
147 Servicer Yes $7,854 $1,309 NAP No
148 NAP No $0 $0 NAP Yes
149 NAP No $0 $0 NAP No
150 Servicer Yes $954 $477 NAP No
151 Servicer No $0 $0 NAP Yes
152 NAP No $0 $0 NAP No
153 Servicer Yes $666 $222 NAP No
155 NAP No $0 $0 NAP No
156 Borrower No $0 $0 NAP Yes
157 Borrower No $0 $0 NAP Yes
158 Servicer Yes $2,142 $238 NAP No
159 NAP No $0 $0 NAP No
160 Borrower No $0 $0 NAP Yes
161 Borrower No $0 $0 NAP Yes
162 NAP No $0 $0 NAP No
163 Borrower No $0 $0 NAP Yes
164 Servicer Yes $966 $138 NAP No
165 Servicer Yes $1,160 $290 NAP No
166 Servicer Yes $2,792 $349 NAP No
167 Borrower No $0 $0 NAP Yes
168 Servicer Yes $4,848 $404 NAP No
169 Borrower No $0 $0 NAP Yes
170 Servicer Yes $1,524 $254 NAP No
171 Servicer Yes $952 $136 NAP No
172 Borrower No $0 $0 NAP Yes
173 Servicer Yes $3,492 $388 NAP No
174 NAP No $0 $0 NAP No
175 NAP No $0 $0 NAP No
176 Servicer Yes $2,526 $421 NAP No
177 NAP No $0 $0 NAP Yes
179 NAP No $0 $0 NAP No
180 Servicer Yes $1,430 $143 NAP No
181 Servicer Yes $501 $167 NAP No
-----------------------------------------------------------------------------------------------------------------------------------
LOAN
POOL NO. TERMS OR CONDITIONS FOR SPRINGING INSURANCE RESERVE REQUIREMENT
-----------------------------------------------------------------------------------------------------------------------------------
2 Actual DSCR falls below 1.25x, as tested on a quarterly basis
20 No
43 Xx
00 Xx
00 Xx
00 Xx
00 Xx
73 No
84 Failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P or loan default
87 Failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P or loan default
91 No
92 Failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P or loan default
93 Failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P or loan default
96 Xx
00 Xx
000 Xx
000 Xx
000 Xx
115 Release of Tenant Responsibility
120 No
122 No
123 No
124 No
125 No
126 No
127 No
129 No
130 No
131 No
132 No
136 No
137 No
138 No
139 Release of Tenant Responsibility
140 No
141 No
142 Release of Tenant Responsibility
144 No
145 No
146 No
147 No
148 Release of Tenant Responsibility
149 No
150 No
151 Release of Tenant Responsibility
152 No
153 No
155 No
156 Failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P or loan default
157 Failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P or loan default
158 No
159 No
160 Failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P or loan default
161 Failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P or loan default
162 No
163 Failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P or loan default
164 No
165 No
166 No
167 Failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P or loan default
168 No
169 Failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P or loan default
170 No
171 No
172 Failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P or loan default
173 No
174 No
175 No
176 No
177 Release of Tenant Responsibility
179 No
180 No
181 No
------------------------------------------------------------------------------------------------------------------------------------
INTEREST ON DEFERRED MAINTENANCE % OF TOTAL RECOMMENDED
LOAN INSURANCE ESCROW DEFERRED MAINTENANCE RECOMMENDED PER DEFERRED MAINTENANCE DEFERRED MAINTENANCE
POOL NO. PAID TO: ESCROW IN PLACE (Y/N) REPORT ($) ESCROW AMOUNT ($) AMOUNT ESCROWED (%)
------------------------------------------------------------------------------------------------------------------------------------
2 Servicer No $0 $0 0%
20 Servicer No $0 $0 0%
43 NAP No $0 $0 0%
60 NAP No $41,664 $0 0%
61 NAP No $54,200 $0 0%
67 Servicer No $0 $0 0%
70 NAP No $3,100 $0 0%
73 Servicer No $0 $0 0%
84 Borrower No $0 $0 0%
87 Borrower No $0 $0 0%
91 Servicer No $0 $0 0%
92 Borrower No $0 $0 0%
93 Borrower No $0 $0 0%
96 Servicer No $0 $0 0%
98 Servicer No $0 $0 0%
103 NAP No $0 $0 0%
106 Servicer No $0 $0 0%
108 NAP No $0 $0 0%
115 NAP No $0 $0 0%
120 Servicer No $0 $0 0%
122 Servicer No $0 $0 0%
123 NAP No $0 $0 0%
124 Servicer No $0 $0 0%
125 Servicer No $0 $0 0%
126 NAP No $1,500 $0 0%
127 Servicer No $0 $0 0%
129 NAP No $0 $0 0%
130 Servicer No $0 $0 0%
131 NAP No $0 $0 0%
132 Servicer No $0 $0 0%
136 Servicer No $41,000 $0 0%
137 NAP No $0 $0 0%
138 Servicer No $0 $0 0%
139 NAP No $0 $0 0%
140 Servicer No $0 $0 0%
141 Servicer No $0 $0 0%
142 NAP No $0 $0 0%
144 NAP No $0 $0 0%
145 Borrower No $0 $0 0%
146 Servicer No $0 $0 0%
147 Servicer No $0 $0 0%
148 NAP No $1,000 $0 0%
149 NAP No $0 $0 0%
150 Servicer No $0 $0 0%
151 NAP No $0 $0 0%
152 NAP No $0 $0 0%
153 Servicer No $0 $0 0%
155 NAP No $0 $0 0%
156 Borrower No $1,950 $0 0%
157 Borrower No $8,500 $0 0%
158 Servicer No $0 $0 0%
159 NAP No $0 $0 0%
160 Borrower No $24,200 $0 0%
161 Borrower No $0 $0 0%
162 NAP No $3,500 $0 0%
163 Borrower No $1,000 $0 0%
164 Servicer No $0 $0 0%
165 Primary Servicer Yes $10,250 $12,813 125%
166 Servicer No $0 $0 0%
167 Borrower No $5,000 $0 0%
168 Servicer No $0 $0 0%
169 Borrower No $0 $0 0%
170 Servicer No $0 $0 0%
171 Servicer No $5,500 $0 0%
172 Borrower No $0 $0 0%
173 Servicer No $0 $0 0%
174 NAP No $0 $0 0%
175 NAP No $1,000 $0 0%
176 Servicer No $3,000 $0 0%
177 NAP No $0 $0 0%
179 NAP No $0 $0 0%
180 Servicer No $250 $0 0%
181 Servicer No $0 $0 0%
------------------------------------------------------------------------------------------------------------------------------------
LOAN
POOL NO. DEFERRED MAINTENANCE COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
2 Consultant---No deferred maintenance was observed on the subject property. All systems are covered under regular
service contracts and have been maintained in an above-average condition and/or upgraded. The subject is relatively
new and has been kept in good condition. No deferred maintenance was found therefore no impounding is required. The
Sponsor, New York State Common Retirement Fund, is considered to have more than adequate resources to maintain the
subject. A springing capital expense escrow (lockbox) will be collected if the debt service coverage falls below
1.25x or if the loan is in default.
20 No deferred maintenance items have been recommended. However, the Lender requires the monthly impounding of funds
for capital expenditures. The capital expenditures will be $.15 per sf. The monthly impound for capital expenditures
is $1,595.
43 - No significant items of deferred maintenance were noted.
60 The overall general condition of the subject property was observed to be in fair to good condition.
61 The overall general condition of the subject property was observed to be in fair to good condition with immediate
repairs including roof repairs, fencing repairs exterior masonry wall repairs and asphalt paving repairs.
67 Since the property is new construction no deferred maintenance items are needed.
70 The overall general condition of the subject property is considered to be very good. Suggested immediate repairs
include cooling tower repairs and installation of seismic strap at water heater. These are considered part of the
property's on-going maintenance and repairs and the Borrower has been provided with a copy of the Engineering
Report.
73 No deferred maintenance was identified during completion of the investigation.
84 The subject properties were generally observed to be in good condition. In addition, the subject buildings have
generally been provided with adequate preventative maintenance since initial construction. The consultant concludes
that $40,650 currently exists in deferred maintenance. These recommendations were limited to the five Texas
facilities and, with the exception of the Dallas, TX facility, were less than $10,000 per facility. Minor items
included the following, with all charges less than $5,000 per item: Fort Worth, TX ($8,500 total) - repair roof
leaks, plumbing back-up, and soil washout, service the HVAC system, and trim trees; Beaumont, TX ($5000 total) -
repair roof leaks and HVAC equipment; Arlington, TX ($1,950 total) - repair drywalls and concrete pavement, trim
trees; and Houston, TX ($1,000 total) - repair roof leaks and alarm panel deficiency. Considering the $28,500,000
loan size, that these repairs are the tenant's sole responsibility, and the insignificant nature of these repairs,
87 The subject properties were generally observed to be in good condition. In addition, the subject buildings have
generally been provided with adequate preventative maintenance since initial construction. The consultant concludes
that $40,650 currently exists in deferred maintenance. These recommendations were limited to the five Texas
facilities and, with the exception of the Dallas, TX facility, were less than $10,000 per facility. Minor items
included the following, with all charges less than $5,000 per item: Fort Worth, TX ($8,500 total) - repair roof
leaks, plumbing back-up, and soil washout, service the HVAC system, and trim trees; Beaumont, TX ($5000 total) -
repair roof leaks and HVAC equipment; Arlington, TX ($1,950 total) - repair drywalls and concrete pavement, trim
trees; and Houston, TX ($1,000 total) - repair roof leaks and alarm panel deficiency. Considering the $28,500,000
loan size, that these repairs are the tenant's sole responsibility, and the insignificant nature of these repairs,
the defer
91 The overall general condition of the subject property is considered to be good. There are no immediate actions
required at this time that are greater than the $5,000 reporting threshold.
92 The subject properties were generally observed to be in good condition. In addition, the subject buildings have
generally been provided with adequate preventative maintenance since initial construction. The consultant concludes
that $40,650 currently exists in deferred maintenance. These recommendations were limited to the five Texas
facilities and, with the exception of the Dallas, TX facility, were less than $10,000 per facility. Minor items
included the following, with all charges less than $5,000 per item: Fort Worth, TX ($8,500 total) - repair roof
leaks, plumbing back-up, and soil washout, service the HVAC system, and trim trees; Beaumont, TX ($5000 total) -
repair roof leaks and HVAC equipment; Arlington, TX ($1,950 total) - repair drywalls and concrete pavement, trim
trees; and Houston, TX ($1,000 total) - repair roof leaks and alarm panel deficiency. Considering the $28,500,000
loan size, that these repairs are the tenant's sole responsibility, and the insignificant nature of these repairs,
the defer
93 The subject properties were generally observed to be in good condition. In addition, the subject buildings have
generally been provided with adequate preventative maintenance since initial construction. The consultant concludes
that $40,650 currently exists in deferred maintenance. These recommendations were limited to the five Texas
facilities and, with the exception of the Dallas, TX facility, were less than $10,000 per facility. Minor items
included the following, with all charges less than $5,000 per item: Fort Worth, TX ($8,500 total) - repair roof
leaks, plumbing back-up, and soil washout, service the HVAC system, and trim trees; Beaumont, TX ($5000 total) -
repair roof leaks and HVAC equipment; Arlington, TX ($1,950 total) - repair drywalls and concrete pavement, trim
trees; and Houston, TX ($1,000 total) - repair roof leaks and alarm panel deficiency. Considering the $28,500,000
loan size, that these repairs are the tenant's sole responsibility, and the insignificant nature of these repairs,
the defer
96 - Based on observations made in both the appraisal and the engineering report, no major items of deferred
maintenance were noted.
98 - No immediate repairs required.
103 At the time of the Engineer's inspection, deferred roof-related items included damaged gutters, downspouts, drywall
and loose seam covers. Estimated cost to cure was $9,500. The Borrower addressed and remediated all deferred items
prior to loan closing. As such, no reserve was necessary and no further action is required.
106 The subject property has been well maintain and as a result no deferred maintenance is required
108 The property is in good overall condition, with no deferred maintenance noted.
115 The property appeared to be in generally good condition. No immediate repairs were identified for the subject
property.
120 The property appeared to be in good condition. No immediate repairs were observed at the site.
122 Deferred maintenance was not observed at the subject property. The subject property appeared to be in very good
condition.
123 The subject property is generally in good condition. Deferred maintenance was not observed at the Project.
124 The property appeared to be in good condition. No immediate repair Items were observed at the site.
125 The property appeared to be in generally good condition. No immediate repair items were noted during the site
inspection.
126 The property appeared to be in generally good condition. Immediate repair includes removing soil from railroad
tracks and installing an erosion control until grass is in place. Due to a low estimate of $1,500, no deferred
maintenance impound shall be required.
127 The property appeared to be in generally good condition. No immediate repairs were identified.
129 The new building has no identified deferred maintenance or immediate costs.
130 The property appeared to be in generally good condition. No immediate repairs were identified. Based on a review of
the Engineering Report and the appraisal report, the subject property appears to be in good overall condition with
no major signs of deferred maintenance noted.
131 The subject property appeared to be in generally good condition. Items in need of immediate repair
were not observed.
132 The property appeared to be in generally good condition. NAC did not identify any immediate repairs for the subject
property.
136 The property was constructed in 2000 and the overall general condition of the property is good. Deferred maintenance
noted in the report consisted of completing the pavement construction and striping the pavement and correcting a
drainage problem. The site work totaled $41,000 and was completed prior to loan funding. The borrower provided
documentation and pictures of the work to the lender and NAC.
137 No immediate deferred maintenance was identified.
138 According to National Assessment Corporation the property appeared to be in generally very good to excellent
condition. No items, which would require immediate repairs, were observed. All maintenance of the driveways, parking
areas, sidewalks, and landscaping are performed under a " Common Area Maintenance Agreement".
139 No immediate needs were identified.
140 The property is in generally fair condition. No items of immediate action were recommended.
141 No immediate needs required.
142 The property appeared to be in generally good condition. No immediate repairs were observed.
144 Immediate repair needs were not identified during this assessment. Although engineer noticed cracking on the parking
decks, Borrower had a structural engineer inspect the parking deck. The borrower's structural engineer concluded
that the cracks were more cosmetic in nature and are not considered to create any structural integrity issues.
145 The overall general condition of the subject property is considered to be good and there are no immediate action
recommendations at this time.
146 No immediate repairs are required.
147 The building at the subject property was constructed in 2000. No deferred maintenance observed.
148 The property appeared to be in generally good condition. A small roof leak was identified as an immediate repair at
the subject property. An impound was not required as the estimate to repair the leak was minimal at $1,000 and could
be covered as part of general maintenance of the subject property. PETsMART has made arrangements to have the roof
leak repaired in the near future.
149 The property appeared to be in fair to good condition. NAC did not observe any deferred maintenance issues that
require immediate repair.
150 The property appears to be in good condition. NAC did not observe any items that would require immediate repairs
during the July 16, 2001site visit. No costs of work are included in the immediate Repairs Cost Estimate table.
However it should be noted that there is some areas of sealant joints in the storefront window system leaking in
Blockbuster from the irrigation system spraying on them, and the dry cleaner contains a leak in their equipment
(water heater or steam press) that is slowly leaking through the wall into the building main utility room. Both are
considered minor expenses, which require attention, but do not require immediate funds for repair.
151 According to NAC, the property appeared to be in generally good condition. No immediate repairs are necessary.
152 The subject property appeared to be in good condition. Items requiring immediate repair or replacement were not
observed.
153 The property appeared to be in good condition with no deferred maintenance noted.
155 The building at the subject property appeared to be in generally excellent condition. No items were found that
require immediate repair or replacement.
156 The subject properties were generally observed to be in good condition. In addition, the subject buildings have
generally been provided with adequate preventative maintenance since initial construction. The consultant concludes
that $40,650 currently exists in deferred maintenance. These recommendations were limited to the five Texas
facilities and, with the exception of the Dallas, TX facility, were less than $10,000 per facility. Minor items
included the following, with all charges less than $5,000 per item: Fort Worth, TX ($8,500 total) - repair roof
leaks, plumbing back-up, and soil washout, service the HVAC system, and trim trees; Beaumont, TX ($5000 total) -
repair roof leaks and HVAC equipment; Arlington, TX ($1,950 total) - repair drywalls and concrete pavement, trim
trees; and Houston, TX ($1,000 total) - repair roof leaks and alarm panel deficiency. Considering the $28,500,000
loan size, that these repairs are the tenant's sole responsibility, and the insignificant nature of these repairs,
the defer
157 The subject properties were generally observed to be in good condition. In addition, the subject buildings have
generally been provided with adequate preventative maintenance since initial construction. The consultant concludes
that $40,650 currently exists in deferred maintenance. These recommendations were limited to the five Texas
facilities and, with the exception of the Dallas, TX facility, were less than $10,000 per facility. Minor items
included the following, with all charges less than $5,000 per item: Fort Worth, TX ($8,500 total) - repair roof
leaks, plumbing back-up, and soil washout, service the HVAC system, and trim trees; Beaumont, TX ($5000 total) -
repair roof leaks and HVAC equipment; Arlington, TX ($1,950 total) - repair drywalls and concrete pavement, trim
trees; and Houston, TX ($1,000 total) - repair roof leaks and alarm panel deficiency. Considering the $28,500,000
loan size, that these repairs are the tenant's sole responsibility, and the insignificant nature of these repairs,
the defer
158 - The property appeared to be in generally good condition and has been provided adequate maintenance over the past
25 years. No major immediate repairs are required.
159 Based on the Engineering Report, there are no deferred maintenance issues.
160 The subject properties were generally observed to be in good condition. In addition, the subject buildings have
generally been provided with adequate preventative maintenance since initial construction. The consultant concludes
that $40,650 currently exists in deferred maintenance. These recommendations were limited to the five Texas
facilities and, with the exception of the Dallas, TX facility, were less than $10,000 per facility. Minor items
included the following, with all charges less than $5,000 per item: Fort Worth, TX ($8,500 total) - repair roof
leaks, plumbing back-up, and soil washout, service the HVAC system, and trim trees; Beaumont, TX ($5000 total) -
repair roof leaks and HVAC equipment; Arlington, TX ($1,950 total) - repair drywalls and concrete pavement, trim
trees; and Houston, TX ($1,000 total) - repair roof leaks and alarm panel deficiency. Considering the $28,500,000
loan size, that these repairs are the tenant's sole responsibility, and the insignificant nature of these repairs,
the defer
161 The subject properties were generally observed to be in good condition. In addition, the subject buildings have
generally been provided with adequate preventative maintenance since initial construction. The consultant concludes
that $40,650 currently exists in deferred maintenance. These recommendations were limited to the five Texas
facilities and, with the exception of the Dallas, TX facility, were less than $10,000 per facility. Minor items
included the following, with all charges less than $5,000 per item: Fort Worth, TX ($8,500 total) - repair roof
leaks, plumbing back-up, and soil washout, service the HVAC system, and trim trees; Beaumont, TX ($5000 total) -
repair roof leaks and HVAC equipment; Arlington, TX ($1,950 total) - repair drywalls and concrete pavement, trim
trees; and Houston, TX ($1,000 total) - repair roof leaks and alarm panel deficiency. Considering the $28,500,000
loan size, that these repairs are the tenant's sole responsibility, and the insignificant nature of these repairs,
the defer
162 NAC observed several trip hazards (deferred maintenance issue) on-site that required immediate repair. The trip
hazards were located in several locations throughout the concrete walkways and some areas of lifting asphalt. The
majority of the lifting concrete sections and asphaltwas due to tree root systems. NAC estimateda cost of $3000.
These items were completed prior to loan funding; therefore, no escrow was required. Reportedly, the City of La Mesa
Building Department had issued a non-compliance statement to the Property Management for a steel tube handrail that
was loose (base of Unit 66). Repair had been conducted by on-site maintenance, however the handrail seemed insecure
and required further repair ($500 estimate). Prior to loan closing, the violation was cleared by the City of La
Mesa.
163 The subject properties were generally observed to be in good condition. In addition, the subject buildings have
generally been provided with adequate preventative maintenance since initial construction. The consultant concludes
that $40,650 currently exists in deferred maintenance. These recommendations were limited to the five Texas
facilities and, with the exception of the Dallas, TX facility, were less than $10,000 per facility. Minor items
included the following, with all charges less than $5,000 per item: Fort Worth, TX ($8,500 total) - repair roof
leaks, plumbing back-up, and soil washout, service the HVAC system, and trim trees; Beaumont, TX ($5000 total) -
repair roof leaks and HVAC equipment; Arlington, TX ($1,950 total) - repair drywalls and concrete pavement, trim
trees; and Houston, TX ($1,000 total) - repair roof leaks and alarm panel deficiency. Considering the $28,500,000
loan size, that these repairs are the tenant's sole responsibility, and the insignificant nature of these repairs,
the defer
164 The property appeared to be in good condition. NAC did not observe any deferred maintenance issues that require
immediate repair.
165 The property appeared to be in generally good condition. Immediate repairs include repairs to damaged concrete
sidewalk, which is a potential trip hazard, and replacement of the concrete wheel stops which are significantly
damaged. An upfront deferred maintenance impound was taken (125% of consultant's recommendation).
166 No Immediate Repair items were observed at the site.
167 The subject properties were generally observed to be in good condition. In addition, the subject buildings have
generally been provided with adequate preventative maintenance since initial construction. The consultant concludes
that $40,650 currently exists in deferred maintenance. These recommendations were limited to the five Texas
facilities and, with the exception of the Dallas, TX facility, were less than $10,000 per facility. Minor items
included the following, with all charges less than $5,000 per item: Fort Worth, TX ($8,500 total) - repair roof
leaks, plumbing back-up, and soil washout, service the HVAC system, and trim trees; Beaumont, TX ($5000 total) -
repair roof leaks and HVAC equipment; Arlington, TX ($1,950 total) - repair drywalls and concrete pavement, trim
trees; and Houston, TX ($1,000 total) - repair roof leaks and alarm panel deficiency. Considering the $28,500,000
loan size, that these repairs are the tenant's sole responsibility, and the insignificant nature of these repairs,
the defer
168 The overall general condition of the subject property is considered to be good and no immediate needs were noted.
169 The subject properties were generally observed to be in good condition. In addition, the subject buildings have
generally been provided with adequate preventative maintenance since initial construction. The consultant concludes
that $40,650 currently exists in deferred maintenance. These recommendations were limited to the five Texas
facilities and, with the exception of the Dallas, TX facility, were less than $10,000 per facility. Minor items
included the following, with all charges less than $5,000 per item: Fort Worth, TX ($8,500 total) - repair roof
leaks, plumbing back-up, and soil washout, service the HVAC system, and trim trees; Beaumont, TX ($5000 total) -
repair roof leaks and HVAC equipment; Arlington, TX ($1,950 total) - repair drywalls and concrete pavement, trim
trees; and Houston, TX ($1,000 total) - repair roof leaks and alarm panel deficiency. Considering the $28,500,000
loan size, that these repairs are the tenant's sole responsibility, and the insignificant nature of these repairs,
the defer
170 No deferred maintenance issues were identified for immediate repair.
171 The subject property is in good condition. One item of deferred maintenance was noted in the Engineering Report.
This work consists of the removal of the asphalt beam and the excavation and re-grading of the sites northeastern
corner to prevent future water buildup (estimated repair cost of $5,500). An impound will not be required as this
work is considered relatively minor and can be taken care of with the general maintenance of the property. The
lender will require the borrower to complete the deferred maintenace within 120 days of origination. The borrower is
required to certify that this work has been completed via a contractor's invoice or certification letter.
172 The subject properties were generally observed to be in good condition. In addition, the subject buildings have
generally been provided with adequate preventative maintenance since initial construction. The consultant concludes
that $40,650 currently exists in deferred maintenance. These recommendations were limited to the five Texas
facilities and, with the exception of the Dallas, TX facility, were less than $10,000 per facility. Minor items
included the following, with all charges less than $5,000 per item: Fort Worth, TX ($8,500 total) - repair roof
leaks, plumbing back-up, and soil washout, service the HVAC system, and trim trees; Beaumont, TX ($5000 total) -
repair roof leaks and HVAC equipment; Arlington, TX ($1,950 total) - repair drywalls and concrete pavement, trim
trees; and Houston, TX ($1,000 total) - repair roof leaks and alarm panel deficiency. Considering the $28,500,000
loan size, that these repairs are the tenant's sole responsibility, and the insignificant nature of these repairs,
the defer
173 No deferred maintenance observed.
174 No immediate repairs required.
175 NAC observed several trip hazards (deferred maintenance issue) on-site that require immediate repair. The trip
hazards are located in several locations throughout the concrete walkways. The majority of the lifting concrete
sections and asphalt is due to tree root systems. NAC estimates that there are five individual areas that require
immediate attention. These items were completed prior to loan funding, therefore no escrow was required.
176 Two HVAC units on the building roof do not appear to be working at this time. These units should be repaired to
provide adequate cooling of the building. As of 9/24/01, borrower provided evidence of work completed on HVAC units,
therefore, impound is not required.
177 Items in need of immediate repair were not observed.
179 The retail plaza building was contructed in 2001. As such, all construction materials are new and no deferred
maintenance was noted.
180 The property appeared to be in generally good condition. Immediate repairs include one stair rail located at the
delivery entrance to Dollar Tree. Due to the small dollar amount, no impounds were required.
181 The subject property appeared to be in generally fair-to-good condition. Items in need of immediate repair were not
discovered by NAC.
------------------------------------------------------------------------------------------------------------------------------------
CAP EX
INITIAL CAP ONGOING CAP ANNUAL CAP EX RESERVE SPRINGING RESERVE
LOAN CAP EX ESCROW EX ESCROW EX ESCROW - RESERVE REQUIREMENT CAP ($ AND REQUIREMENT FOR
POOL NO. IN PLACE (Y/N) AMOUNT ($) MONTHLY ($) PER SF/UNIT ($) DESCRIPTION) CAP EX (Y/N)
------------------------------------------------------------------------------------------------------------------------------------
2 No $0 $0 $0.00 0 Yes
20 Yes $0 $1,595 $0.15 0 No
43 No $0 $0 $0.00 0 No
60 No $0 $0 $0.00 0 No
61 No $0 $0 $0.00 0 No
67 No $0 $0 $0.00 0 No
70 No $0 $0 $0.00 0 No
73 Yes $0 $658 $0.15 0 No
84 N $0 $0 $0.00 0 Yes
87 N $0 $0 $0.00 0 Yes
91 Yes $0 $698 $0.15 0 No
92 N $0 $0 $0.00 0 Yes
93 N $0 $0 $0.00 0 Yes
96 No $0 $0 $0.00 0 No
98 Yes $0 $1,626 $0.24 0 No
103 Yes $0 $613 $0.18 0 No
106 Yes $0 $1,174 $0.25 0 No
108 No $0 $0 $0.00 0 No
115 No $0 $0 $0.00 0 No
120 No $0 $0 $0.00 0 No
122 No $0 $0 $0.00 0 No
123 No $0 $0 $0.00 0 No
124 No $0 $0 $0.00 0 No
125 No $0 $0 $0.00 0 No
126 No $0 $0 $0.00 0 No
127 No $0 $0 $0.00 0 No
129 Yes $0 $334 $0.10 0 No
130 Yes $0 $902 $0.28 0 No
131 No $0 $0 $0.00 0 No
132 No $0 $0 $0.00 0 No
136 Yes $0 $1,000 $250.00 0 No
137 No $0 $0 $0.00 0 No
138 No $0 $0 $0.00 0 No
139 No $0 $0 $0.00 0 No
140 No $0 $0 $0.00 0 No
141 No $0 $0 $0.00 0 No
142 No $0 $0 $0.00 0 No
144 No $0 $0 $0.00 0 No
145 Yes $32,866 $0 $0.00 0 No
146 Yes $0 $508 $0.23 0 No
147 Yes $0 $184 $0.20 0 No
148 No $0 $0 $0.00 0 No
149 No $0 $0 $0.00 0 No
150 Yes $0 $262 $0.19 0 No
151 Yes $0 $740 $0.15 26640 No
152 No $0 $0 $0.00 0 No
153 No $0 $0 $0.00 0 No
155 No $0 $0 $0.00 0 No
156 N $0 $0 $0.00 0 Yes
157 N $0 $0 $0.00 0 Yes
158 Yes $0 $552 $0.28 0 No
159 No $0 $0 $0.00 0 No
160 N $0 $0 $0.00 0 Yes
161 N $0 $0 $0.00 0 Yes
162 No $0 $0 $0.00 0 No
163 N $0 $0 $0.00 0 Yes
164 No $0 $0 $0.00 0 No
165 Yes $0 $337 $0.32 0 No
166 Yes $0 $298 $0.15 0 No
167 N $0 $0 $0.00 0 Yes
168 Yes $0 $713 $0.22 0 No
169 N $0 $0 $0.00 0 Yes
170 No $0 $0 $0.00 0 No
171 No $0 $0 $0.00 0 No
172 N $0 $0 $0.00 0 Yes
173 Yes $0 $709 $0.20 0 No
174 No $0 $0 $0.00 0 No
175 Yes $30,000 $0 $0.00 0 No
176 No $0 $0 $0.00 0 No
177 No $0 $0 $0.00 0 No
179 No $0 $0 $0.00 0 No
180 Yes $0 $169 $0.15 0 No
181 No $0 $0 $0.00 0 No
-----------------------------------------------------------------------------------------------------------------------------------
LOAN
POOL NO. TERMS OR CONDITIONS FOR SPRINGING CAP EX RESERVE REQUIREMENT
-----------------------------------------------------------------------------------------------------------------------------------
2 Actual DSCR falls below 1.25x, as tested on a quarterly basis
20 No
43 Xx
00 Xx
00 Xx
00 Xx
00 Xx
73 No
84 Upon default or failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P
87 Upon default or failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P
91 No
92 Upon default or failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P
93 Upon default or failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P
96 No
98 No
103 No
106 No
108 No
115 No
120 No
122 No
123 No
124 No
125 No
126 No
127 No
129 No
130 No
131 No
132 No
136 No
137 No
138 No
139 No
140 No
141 No
142 No
144 No
145 No
146 No
147 No
148 No
149 No
150 No
151 No
152 No
153 No
155 No
156 Upon default or failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P
157 Upon default or failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P
158 No
159 No
160 Upon default or failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P
161 Upon default or failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P
162 No
163 Upon default or failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P
164 No
165 No
166 No
167 Upon default or failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P
168 No
169 Upon default or failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P
170 No
171 No
172 Upon default or failure at any time of Tenant to maintain a credit rating of at least "BB" as rated by S&P
173 No
174 No
175 No
176 Xx
000 Xx
000 Xx
000 Xx
000 Xx
------------------------------------------------------------------------------------------------------------------------------
CURRENT CAP INTEREST ON ONGOING TI/LC ANNUAL TI/LC
LOAN EX ESCROW CAP EX ESCROW TI/LC ESCROW INITIAL TI/LC ESCROW - ESCROW PER
POOL NO. BALANCE ($) PAID TO: IN PLACE (Y/N) ESCROW AMOUNT ($) MONTHLY ($) SF/UNIT ($)
------------------------------------------------------------------------------------------------------------------------------
2 $0 Servicer Yes $177,678 0 $0.00
20 $0 Servicer Yes 996980 8075 $0.76
43 $0 NAP Yes 555782 0 $0.00
60 $0 NAP No 0 0 $0.00
61 $0 NAP Yes 130000 0 $0.00
67 $0 NAP No 0 0 $0.00
70 $0 NAP No 0 0 $0.00
73 $658 Servicer Yes 0 1425 $0.33
84 $0 Borrower No $0 $0 $0.00
87 $0 Borrower No $0 $0 $0.00
91 $698 Servicer Yes 0 4175 $0.90
92 $0 Borrower No $0 $0 $0.00
93 $0 Borrower No $0 $0 $0.00
96 $0 NAP No 0 $0 $0.00
98 $1,626 Servicer Yes 0 5150 $0.78
103 $613 Servicer Yes 0 3334 $0.99
106 $0 Servicer Yes 400000 0 $0.00
108 $0 NAP No 0 0 $0.00
115 $0 NAP No 0 0 $0.00
120 $0 NAP No 0 0 $0.00
122 $0 NAP No 0 0 $0.00
123 $0 NAP No 0 0 $0.00
124 $0 NAP Yes 0 2216 $0.32
125 $0 NAP No 0 0 $0.00
126 $0 NAP No 0 0 $0.00
127 $0 NAP No 0 0 $0.00
129 $334 Servicer No 0 0 $0.00
130 $0 Servicer Yes 0 833 $0.26
131 $0 NAP No 0 0 $0.00
132 $0 NAP No 0 0 $0.00
136 $3,000 Servicer No 0 0 $0.00
137 $0 NAP No 0 0 $0.00
138 $0 NAP No 0 0 $0.00
139 $0 NAP Yes 0 1975 $1.29
140 $0 NAP Yes 230000 3000 $0.36
141 $0 NAP No 0 0 $0.00
142 $0 NAP No 0 0 $0.00
144 $0 NAP No 0 0 $0.00
145 $35,017 Borrower No 0 0 $0.00
146 $1,524 Servicer No 0 0 $0.00
147 $0 Servicer Yes 0 1709 $1.86
148 $0 NAP No 0 0 $0.00
149 $0 NAP No 0 0 $0.00
150 $786 Servicer Yes 31056.75 0 $0.00
151 $2,220 Servicer Yes 0 1000 $0.20
152 $0 NAP No 0 0 $0.00
153 $0 NAP No 0 0 $0.00
155 $0 NAP No 0 0 $0.00
156 $0 Borrower No $0 $0 $0.00
157 $0 Borrower No $0 $0 $0.00
158 $0 Servicer No 0 0 $0.00
159 $0 NAP No 0 0 $0.00
160 $0 Borrower No $0 $0 $0.00
161 $0 Borrower No $0 $0 $0.00
162 $0 NAP No 0 0 $0.00
163 $0 Borrower No $0 $0 $0.00
164 $0 NAP No 0 0 $0.00
165 $0 Primary Servicer Yes 0 1050 $1.01
166 $0 Servicer Yes 0 1067 $0.54
167 $0 Borrower No $0 $0 $0.00
168 $1,426 Servicer No 0 0 $0.00
169 $0 Borrower No $0 $0 $0.00
170 $0 NAP No 0 0 $0.00
171 $0 NAP No 0 0 $0.00
172 $0 Borrower No $0 $0 $0.00
173 $2,127 Servicer No 0 0 $0.00
174 $0 NAP No 0 0 $0.00
175 $0 Servicer No 0 0 $0.00
176 $0 NAP No 0 0 $0.00
177 $0 NAP No 0 0 $0.00
179 $0 NAP No 0 0 $0.00
180 $0 Servicer Yes 0 684 $0.61
181 $0 NAP No 0 0 $0.00
------------------------------------------------------------------------------------------------------------------------------------
LOAN
POOL NO. TI/LC RESERVE CAP ($ AND DESCRIPTION)
------------------------------------------------------------------------------------------------------------------------------------
2 $0
20 $0
43 $0
60 $0
61 $0
67 $0
70 $0
73 $0
84 $0
87 $0
91 $0
92 $0
93 $0
96 $0
98 $0
103 $765,000
106 $0
108 $0
115 $0
120 $0
122 $0
123 $0
124 $110,000
125 $0
126 $0
127 $0
129 $0
130 $285,000 upon the occurance of either (i) tenant default: (ii) early termination by tenant; or (iii) upon assumption
of the loan by a party unrelated to the Borrower.
131 $0
132 $0
136 $0
137 $0
138 $0
139 $0
140 To be collected until the earlier of (a) December 31, 2004 or (b) Lender's approval of a new or renewal lease with
(1) a term of no less than 10 years and (2) a rental rate of no less than $5.30/sqft.
141 $0
142 $0
144 $0
145 $0
146 $0
147 $215,700
148 $0
149 $0
150 $30,000
151 $0
152 $0
153 $0
155 $0
156 $0
157 $0
158 $0
159 $0
160 $0
161 $0
162 $0
163 $0
164 $0
165 $0
166 $0
167 $0
168 $0
169 $0
170 $0
171 $0
172 $0
173 $0
174 $0
175 $0
176 $0
177 $0
179 $0
180 $0
181 $0
------------------------------------------------------------------------------------------------------------------------------------
SPRINGING RESERVE
LOAN REQUIREMENT FOR
POOL NO. TI/LC (Y/N) TERMS OR CONDITIONS FOR SPRINGING TI/LC RESERVE REQUIREMENT
------------------------------------------------------------------------------------------------------------------------------------
2 Yes Actual DSCR falls below 1.25x, as tested on a quarterly basis
20 No
43 Xx
00 Xx
00 Xx
00 Xx
00 Xx
73 No
84 Yes Upon default or failure at any time of Tenant to maintain a credit rating of at least "BB"
as rated by S&P
87 Yes Upon default or failure at any time of Tenant to maintain a credit rating of at least "BB"
as rated by S&P
91 No
92 Yes Upon default or failure at any time of Tenant to maintain a credit rating of at least "BB"
as rated by S&P
93 Yes Upon default or failure at any time of Tenant to maintain a credit rating of at least "BB"
as rated by S&P
96 Yes Upfront: $0.00 In the event Borrower obtains a Junior Loan, Lender may require TI/LC
impound for costs required in connection with any tenant equaling either 20% of NRA or
GPR.;
98 Xx
000 Xx
000 Xx
000 Xx
115 Yes Upfront: $400,000.00 Upon either (i) property sale and loan assumption; (ii) tenant
default; (iii) tenant leaves premises, or (iv) tenant fails to extend lease for 5 years
or more at a rental rate >= $6.81 per sqft 6 mos prior to lease expiration AND if the
tenant extends lease for 5 years, then $400,000 wil be required upfront upon either (i)
property sale and loan assumption; (ii) tenant default; (iii) tenant leaves premises, or
(iv) tenant fails to extend lease for 5 years or more at least 6 mos prior to lease
expiration of the first 5 year renewal period.
120 Yes Upfront: $340,000.00 Upon assumption, Sullivan's New Market lease default or non-renewal 6
mos prior to expiration;
122 No
123 No
124 No
125 No
126 Yes Upfront: $300,000.00 Upon either (I) sale of the property and subsequent assumption of the
loan (ii) tenant default, or (iii) failure of tenant to extend their lease for a period >=
five years at a rental rate >= $4.31 per sq.ft. per year 6 mos prior to lease expiration.
127 No
129 Yes Upfront: $285,000.00 Upon either (a) borrower sells the property and requires an
assumption, (b) YKK AP America, Inc. defaults on its lease, or (c) YKK AP America, Inc.
does not renew its lease by 12/31/05.;
130 No
131 No
132 No
136 No
137 No
138 Yes Upfront: $45,000.00 Upon assuption;
139 Yes Upfront: $100,000.00 City of San Francisco (tenant) terminates its lease, defaults on its
lease, or upon loan assumption.;
140 No
141 No
142 No
144 Yes Upfront: $194,000.00 Upon Assumption. Impound may be waived upon assumption subject to
satisfactory credit and financial review of the proposed New Borrower and an MAI appraisal
ordered by WFB concludes to a LTV of 50% or less at time of assumption.;
145 No
146 Yes Ongoing: $1,283.00 Upon assumption.
147 No
148 Yes Upfront: $416,000.00 Petsmart terminates or default its lease or upon sale and assumption.;
149 Yes Upfront: $234,000.00 Upon assumption or transfer to an entity not controlled by Robert D.
Shipp or Xxxxxxx Xxxxxxxxx
150 Yes Ongoing: $1,167.00 Maintenance of Cap
151 No
152 No
153 No
155 No
156 Yes Upon default or failure at any time of Tenant to maintain a credit rating of at least "BB"
as rated by S&P
157 Yes Upon default or failure at any time of Tenant to maintain a credit rating of at least "BB"
as rated by S&P
158 No
159 No
160 Yes Upon default or failure at any time of Tenant to maintain a credit rating of at least "BB"
as rated by S&P
161 Yes Upon default or failure at any time of Tenant to maintain a credit rating of at least "BB"
as rated by S&P
162 No
163 Yes Upon default or failure at any time of Tenant to maintain a credit rating of at least "BB"
as rated by S&P
164 No
165 No
166 No
167 Yes Upon default or failure at any time of Tenant to maintain a credit rating of at least "BB"
as rated by S&P
168 No
169 Yes Upon default or failure at any time of Tenant to maintain a credit rating of at least "BB"
as rated by S&P
170 No
171 No
172 Yes Upon default or failure at any time of Tenant to maintain a credit rating of at least "BB"
as rated by S&P
173 Yes Ongoing: $950.00 Upon assuption.
174 No
175 No
176 Yes Upfront: $125,000.00 Upon either (a) Borrower's sale of the property where an assumption is
required, (b) California Radomes defaults on its lease, or (c) California Radomes (its
succesors and assigns) does not renew its lease by February 15, 2006;
177 Xx
000 Xx
000 Xx
000 Xx
----------------------------------------------------------------------------------------------------------------------------
ONGOING ENVIRONMENTAL
CURRENT TI/LC INTEREST ON ENVIRONMENTAL ENVIRONMENTAL RESERVE
LOAN BALANCE AS TI/LC ESCROW ESCROW IN INITIAL ENVIRONMENTAL ESCROW - CAP ($ AND
POOL NO. OF [ ]($) PAID TO: PLACE (Y/N) ESCROW AMOUNT ($) MONTHLY ($) DESCRIPTION)
----------------------------------------------------------------------------------------------------------------------------
2 $0 Servicer No 0 NAP NAP
20 $996,980 Servicer No 0 NAP NAP
43 $51,932 Borrower No 0 NAP NAP
60 $0 NAP No 0 NAP NAP
61 $130,000 Servicer No 0 NAP NAP
67 $0 NAP No 0 NAP NAP
70 $0 NAP No 0 NAP NAP
73 $1,425 Borrower No 0 NAP NAP
84 $0 Borrower No 0 NAP NAP
87 $0 Borrower No 0 NAP NAP
91 $4,175 Borrower No 0 NAP NAP
92 $0 Borrower No 0 NAP NAP
93 $0 Borrower No 0 NAP NAP
96 $0 NAP No 0 NAP NAP
98 $5,150 Servicer No 0 NAP NAP
103 $3,334 Borrower No 0 NAP NAP
106 $400,000 Servicer No 0 NAP NAP
108 $0 NAP No 0 NAP NAP
115 $0 NAP No 0 NAP NAP
120 $0 NAP No 0 NAP NAP
122 $0 NAP No 0 NAP NAP
123 $0 NAP No 0 NAP NAP
124 $0 Servicer No 0 NAP NAP
125 $0 NAP No 0 NAP NAP
126 $0 NAP No 0 NAP NAP
127 $0 NAP No 0 NAP NAP
129 $0 NAP No 0 NAP NAP
130 $0 Servicer No 0 NAP NAP
131 $0 NAP No 0 NAP NAP
132 $0 NAP No 0 NAP NAP
136 $0 NAP No 0 NAP NAP
137 $0 NAP No 0 NAP NAP
138 $0 NAP No 0 NAP NAP
139 $7,900 Servicer No 0 NAP NAP
140 $5,972 Borrower No 0 NAP NAP
141 $0 NAP No 0 NAP NAP
142 $0 NAP No 0 NAP NAP
144 $0 NAP No 0 NAP NAP
145 $0 NAP No 0 NAP NAP
146 $0 NAP No 0 NAP NAP
147 $0 Servicer No 0 NAP NAP
148 $0 NAP No 0 NAP NAP
149 $0 NAP No 0 NAP NAP
150 $31,057 Servicer No 0 NAP NAP
151 $2,972 Borrower No 0 NAP NAP
152 $0 NAP No 0 NAP NAP
153 $0 NAP No 0 NAP NAP
155 $0 NAP No 0 NAP NAP
156 $0 Borrower No 0 NAP NAP
157 $0 Borrower No 0 NAP NAP
158 $0 NAP No 0 NAP NAP
159 $0 NAP No 0 NAP NAP
160 $0 Borrower No 0 NAP NAP
161 $0 Borrower No 0 NAP NAP
162 $0 NAP No 0 NAP NAP
163 $0 Borrower No 0 NAP NAP
164 $0 NAP No 0 NAP NAP
165 $0 Servicer No 0 NAP NAP
166 $0 Servicer No 0 NAP NAP
167 $0 Borrower No 0 NAP NAP
168 $0 NAP No 0 NAP NAP
169 $0 Borrower No 0 NAP NAP
170 $0 NAP No 0 NAP NAP
171 $0 NAP No 0 NAP NAP
172 $0 Borrower No 0 NAP NAP
173 $0 NAP No 0 NAP NAP
174 $0 NAP No 0 NAP NAP
175 $0 NAP No 0 NAP NAP
176 $0 NAP No 0 NAP NAP
177 $0 NAP No 0 NAP NAP
179 $0 NAP No 0 NAP NAP
180 $0 Servicer No 0 NAP NAP
181 $0 NAP No 0 NAP NAP
--------------------------------------------------------------------------------------------------------------------------------
SPRINGING RESERVE TERMS OR CONDITIONS FOR INTEREST ON
LOAN REQUIREMENT FOR SPRINGING ENVIRONMENTAL ENVIRONMENTAL ESCROW OTHER ESCROWS DESCRIPTION OF
POOL NO. ENVIRONMENTAL (Y/N) RESERVE REQUIREMENT PAID TO: IN PLACE (Y/N) "OTHER" ESCROWS
--------------------------------------------------------------------------------------------------------------------------------
2 NAP NAP NAP NAP NAP
20 NAP NAP NAP NAP NAP
43 NAP NAP NAP NAP NAP
60 NAP NAP NAP NAP NAP
61 NAP NAP NAP NAP NAP
67 NAP NAP NAP NAP NAP
70 NAP NAP NAP NAP NAP
73 NAP NAP NAP NAP NAP
84 NAP NAP NAP NAP NAP
87 NAP NAP NAP NAP NAP
91 NAP NAP NAP NAP NAP
92 NAP NAP NAP NAP NAP
93 NAP NAP NAP NAP NAP
96 NAP NAP NAP NAP NAP
98 NAP NAP NAP NAP NAP
103 NAP NAP NAP NAP NAP
106 NAP NAP NAP NAP NAP
108 NAP NAP NAP NAP NAP
115 NAP NAP NAP NAP NAP
120 NAP NAP NAP NAP NAP
122 NAP NAP NAP NAP NAP
123 NAP NAP NAP NAP NAP
124 NAP NAP NAP NAP NAP
125 NAP NAP NAP NAP NAP
126 NAP NAP NAP NAP NAP
127 NAP NAP NAP NAP NAP
129 NAP NAP NAP NAP NAP
130 NAP NAP NAP NAP NAP
131 NAP NAP NAP NAP NAP
132 NAP NAP NAP NAP NAP
136 NAP NAP NAP NAP NAP
137 NAP NAP NAP NAP NAP
138 NAP NAP NAP NAP NAP
139 NAP NAP NAP NAP NAP
140 NAP NAP NAP NAP NAP
141 NAP NAP NAP NAP NAP
142 NAP NAP NAP NAP NAP
144 NAP NAP NAP NAP NAP
145 NAP NAP NAP NAP NAP
146 NAP NAP NAP NAP NAP
147 NAP NAP NAP NAP NAP
148 NAP NAP NAP NAP NAP
149 NAP NAP NAP NAP NAP
150 NAP NAP NAP NAP NAP
151 NAP NAP NAP NAP NAP
152 NAP NAP NAP NAP NAP
153 NAP NAP NAP NAP NAP
155 NAP NAP NAP NAP NAP
156 NAP NAP NAP NAP NAP
157 NAP NAP NAP NAP NAP
158 NAP NAP NAP NAP NAP
159 NAP NAP NAP NAP NAP
160 NAP NAP NAP NAP NAP
161 NAP NAP NAP NAP NAP
162 NAP NAP NAP NAP NAP
163 NAP NAP NAP NAP NAP
164 NAP NAP NAP NAP NAP
165 NAP NAP NAP NAP NAP
166 NAP NAP NAP NAP NAP
167 NAP NAP NAP NAP NAP
168 NAP NAP NAP NAP NAP
169 NAP NAP NAP NAP NAP
170 NAP NAP NAP NAP NAP
171 NAP NAP NAP NAP NAP
172 NAP NAP NAP NAP NAP
173 NAP NAP NAP NAP NAP
174 NAP NAP NAP NAP NAP
175 NAP NAP NAP NAP NAP
176 NAP NAP NAP NAP NAP
177 NAP NAP NAP NAP NAP
179 NAP NAP NAP NAP NAP
180 NAP NAP NAP NAP NAP
181 NAP NAP NAP NAP NAP
-----------------------------------------------------------------------------------------------------------------
ONGOING OTHER OTHER RESERVE OTHER SPRINGING TERMS OR CONDITIONS
LOAN INITIAL OTHER ESCROW - CAP ($ AND RESERVE FOR OTHER RESERVE
POOL NO. ESCROW AMOUNT ($) MONTHLY ($) DESCRIPTION) REQUIREMENT (Y/N) REQUIREMENT
-----------------------------------------------------------------------------------------------------------------
2 NAP NAP NAP NAP NAP
20 NAP NAP NAP NAP NAP
43 NAP NAP NAP NAP NAP
60 NAP NAP NAP NAP NAP
61 NAP NAP NAP NAP NAP
67 NAP NAP NAP NAP NAP
70 NAP NAP NAP NAP NAP
73 NAP NAP NAP NAP NAP
84 NAP NAP NAP NAP NAP
87 NAP NAP NAP NAP NAP
91 NAP NAP NAP NAP NAP
92 NAP NAP NAP NAP NAP
93 NAP NAP NAP NAP NAP
96 NAP NAP NAP NAP NAP
98 NAP NAP NAP NAP NAP
103 NAP NAP NAP NAP NAP
106 NAP NAP NAP NAP NAP
108 NAP NAP NAP NAP NAP
115 NAP NAP NAP NAP NAP
120 NAP NAP NAP NAP NAP
122 NAP NAP NAP NAP NAP
123 NAP NAP NAP NAP NAP
124 NAP NAP NAP NAP NAP
125 NAP NAP NAP NAP NAP
126 NAP NAP NAP NAP NAP
127 NAP NAP NAP NAP NAP
129 NAP NAP NAP NAP NAP
130 NAP NAP NAP NAP NAP
131 NAP NAP NAP NAP NAP
132 NAP NAP NAP NAP NAP
136 NAP NAP NAP NAP NAP
137 NAP NAP NAP NAP NAP
138 NAP NAP NAP NAP NAP
139 NAP NAP NAP NAP NAP
140 NAP NAP NAP NAP NAP
141 NAP NAP NAP NAP NAP
142 NAP NAP NAP NAP NAP
144 NAP NAP NAP NAP NAP
145 NAP NAP NAP NAP NAP
146 NAP NAP NAP NAP NAP
147 NAP NAP NAP NAP NAP
148 NAP NAP NAP NAP NAP
149 NAP NAP NAP NAP NAP
150 NAP NAP NAP NAP NAP
151 NAP NAP NAP NAP NAP
152 NAP NAP NAP NAP NAP
153 NAP NAP NAP NAP NAP
155 NAP NAP NAP NAP NAP
156 NAP NAP NAP NAP NAP
157 NAP NAP NAP NAP NAP
158 NAP NAP NAP NAP NAP
159 NAP NAP NAP NAP NAP
160 NAP NAP NAP NAP NAP
161 NAP NAP NAP NAP NAP
162 NAP NAP NAP NAP NAP
163 NAP NAP NAP NAP NAP
164 NAP NAP NAP NAP NAP
165 NAP NAP NAP NAP NAP
166 NAP NAP NAP NAP NAP
167 NAP NAP NAP NAP NAP
168 NAP NAP NAP NAP NAP
169 NAP NAP NAP NAP NAP
170 NAP NAP NAP NAP NAP
171 NAP NAP NAP NAP NAP
172 NAP NAP NAP NAP NAP
173 NAP NAP NAP NAP NAP
174 NAP NAP NAP NAP NAP
175 NAP NAP NAP NAP NAP
176 NAP NAP NAP NAP NAP
177 NAP NAP NAP NAP NAP
179 NAP NAP NAP NAP NAP
180 NAP NAP NAP NAP NAP
181 NAP NAP NAP NAP NAP
----------------------------------------------------------------------------------------------------------------------------------
DEBT SERVICE PAYMENT DEBT SERVICE
LOAN INTEREST ON OTHER FUTURE PAYMENT PAYMENT GRACE PERIOD TO GRACE PERIOD TO
POOL NO. ESCROW PAID TO: CHANGES (Y/N) FREQUENCY DUE DATE IMPOSE LATE CHARGE CALL A DEFAULT
----------------------------------------------------------------------------------------------------------------------------------
2 NAP NAP Monthly 1st 10 10
20 NAP NAP Monthly 1st 5 5
43 NAP NAP Monthly 1st 5 5
60 NAP NAP Monthly 1st 5 5
61 NAP NAP Monthly 1st 5 5
67 NAP NAP Monthly 1st 5 5
70 NAP NAP Monthly 1st 5 5
73 NAP NAP Monthly 1st 5 5
84 NAP NAP Monthly 1st 5 5
87 NAP NAP Monthly 1st 5 5
91 NAP NAP Monthly 1st 5 5
92 NAP NAP Monthly 1st 5 5
93 NAP NAP Monthly 1st 5 5
96 NAP NAP Monthly 1st 5 5
98 NAP NAP Monthly 1st 5 5
103 NAP NAP Monthly 1st 5 5
106 NAP NAP Monthly 1st 5 5
108 NAP NAP Monthly 1st 5 5
115 NAP NAP Monthly 1st 5 5
120 NAP NAP Monthly 1st 5 5
122 NAP NAP Monthly 1st 5 5
123 NAP NAP Monthly 1st 5 5
124 NAP NAP Monthly 1st 5 5
125 NAP NAP Monthly 1st 5 5
126 NAP NAP Monthly 1st 5 5
127 NAP NAP Monthly 1st 5 5
129 NAP NAP Monthly 1st 5 5
130 NAP NAP Monthly 1st 5 5
131 NAP NAP Monthly 1st 5 5
132 NAP NAP Monthly 1st 5 5
136 NAP NAP Monthly 1st 5 5
137 NAP NAP Monthly 1st 5 5
138 NAP NAP Monthly 1st 5 5
139 NAP NAP Monthly 1st 5 5
140 NAP NAP Monthly 1st 5 5
141 NAP NAP Monthly 1st 5 5
142 NAP NAP Monthly 1st 5 5
144 NAP NAP Monthly 1st 5 5
145 NAP NAP Monthly 1st 5 5
146 NAP NAP Monthly 1st 5 5
147 NAP NAP Monthly 1st 5 5
148 NAP NAP Monthly 1st 5 5
149 NAP NAP Monthly 1st 5 5
150 NAP NAP Monthly 1st 5 5
151 NAP NAP Monthly 1st 5 5
152 NAP NAP Monthly 1st 5 5
153 NAP NAP Monthly 1st 5 5
155 NAP NAP Monthly 1st 5 5
156 NAP NAP Monthly 1st 5 5
157 NAP NAP Monthly 1st 5 5
158 NAP NAP Monthly 1st 5 5
159 NAP NAP Monthly 1st 5 5
160 NAP NAP Monthly 1st 5 5
161 NAP NAP Monthly 1st 5 5
162 NAP NAP Monthly 1st 5 5
163 NAP NAP Monthly 1st 5 5
164 NAP NAP Monthly 1st 5 5
165 NAP NAP Monthly 1st 5 5
166 NAP NAP Monthly 1st 5 5
167 NAP NAP Monthly 1st 5 5
168 NAP NAP Monthly 1st 5 5
169 NAP NAP Monthly 1st 5 5
170 NAP NAP Monthly 1st 5 5
171 NAP NAP Monthly 1st 5 5
172 NAP NAP Monthly 1st 5 5
173 NAP NAP Monthly 1st 5 5
174 NAP NAP Monthly 1st 5 5
175 NAP NAP Monthly 1st 5 5
176 NAP NAP Monthly 1st 5 5
177 NAP NAP Monthly 1st 5 5
179 NAP NAP Monthly 1st 5 5
180 NAP NAP Monthly 1st 5 5
181 NAP NAP Monthly 1st 5 5
------------------------------------------------------------------------------------------------------------------------------------
BALLOON PAYMENT GRACE BALLOON PAYMENT
LOAN PERIOD TO IMPOSE GRACE PERIOD TO PRIMARY SERVICER
POOL NO. DEFAULT INTEREST % LATE CHARGE CALL A DEFAULT TO CONTINUE (Y/N)
------------------------------------------------------------------------------------------------------------------------------------
2 Lesser of Interest Rate + 4% or the legal maximum 5 0 Yes
20 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
43 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
60 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
61 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
67 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
70 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
73 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
84 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
87 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
91 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
92 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
93 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
96 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
98 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
103 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
106 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
108 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
115 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
120 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
122 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
123 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
124 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
125 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
126 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
127 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
129 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
130 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
131 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
132 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
136 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
137 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
138 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
139 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
140 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
141 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
142 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
144 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
145 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
146 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
147 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
148 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
149 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
150 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
151 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
152 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
153 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
155 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
156 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
157 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
158 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
159 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
160 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
161 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
162 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
163 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
164 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
165 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
166 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
167 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
168 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
169 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
170 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
171 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
172 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
173 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
174 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
175 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
176 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
177 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
179 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
180 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
181 Lesser of Interest Rate + 5% or the legal maximum 5 0 Yes
-----------------------------------------------------------------------------------------------------------------------------------
LOAN ASSUMPTION ASSUMPTION EARTHQUAKE EARTHQUAKE HURRICANE
POOL NO. PROVISION (Y/N) /FEE ZONE 3 OR 4 (Y/N) PML % INSURANCE (Y/N) ZONE (Y/N)
-----------------------------------------------------------------------------------------------------------------------------------
2 Yes 1 - 0.5% No NAP No No
20 Yes 1 - 1% No NAP No No
43 Yes 1 - 1.0% Yes 0.136 No No
60 Yes 1 - 1.0% Yes 0.123 No No
61 Yes 1 - 1.0% Yes 0.133 No No
67 Yes 1 - 1.0% No NAP No No
70 Yes 1 - 1.0% Yes 0.178 No No
73 Yes 1 - 1.0% No NAP No No
84 Yes 2 - 1.0% No NAP No 0
87 Yes 2 - 1.0% No NAP No 0
91 Yes 2 - 1.0% No NAP No No
92 Yes 2 - 1.0% No NAP No 0
93 Yes 2 - 1.0% No NAP No 0
96 Yes 2 - 1.0% Yes 0.15 No No
98 Yes 1 - 1.0% Yes 0.1 No No
103 Yes 2 - 0.01 Yes 0.1 No No
106 Yes 1 - 1.0% No NAP No No
108 Yes 1 - 1.0% Yes 0.119 No No
115 Yes 1 - 1.0% No NAP No No
120 Yes 1 - 1.0% No NAP No No
122 Yes 1 - 1.0% Yes 0.13 No No
123 Yes 1 - 1.0% Yes 0.15 No No
124 Yes 1 - 1.0% No NAP No No
125 Yes 1 - 1.0% No NAP No No
126 Yes 1 - 1.0% No NAP No No
127 Yes 1 - 1.0% No NAP No No
129 Yes 1 - 1.0% No NAP No No
130 Yes 1 - 1.0% No NAP No No
131 Yes 1 - 1.0% Yes 0.099 No No
132 Yes 2 - 1.0% No NAP No No
136 Yes 1 - 1.0% No 0 No No
137 Yes 1 - 1.0% Yes 0.14 No No
138 Yes 2 - 1.0% No 0 No No
139 Yes 1 - 1.0% Yes 0.18 No No
140 Yes 1 - 1.0% Yes 0.16 No No
141 Yes 1 - 1.0% Yes 0.18 No No
142 Yes 1 - 1.0% No NAP No No
144 Yes 1 - 1.0% Yes 0.16 No No
145 Yes 1 - 1.0% No NAP No No
146 Yes 2 - 1.0% Yes 0.18 No No
147 Yes 1 - 1.0% Yes 0.15 No No
148 Yes 1 - 1.0% Yes 0.08 No No
149 Yes 2 - 1.0% Yes 0.18 No No
150 Yes 1 - 1.0% No NAP No No
151 Yes 1 - 1.0% No NAP No No
152 Yes 1 - 1.0% Yes 0.141 No No
153 Yes 1 - 1.0% Yes 0.11 No No
155 Yes 1 - 1.0% Yes 0.11 No No
156 Yes 2 - 1.0% No NAP No 0
157 Yes 2 - 1.0% No NAP No 0
158 Yes 1 - 1.0% No NAP No No
159 Yes 1 - 1.0% Yes 0.165 No No
160 Yes 2 - 1.0% No NAP No 0
161 Yes 2 - 1.0% No NAP No 0
162 Yes 1 - 1.0% Yes 0.15 No No
163 Yes 2 - 1.0% No NAP No 0
164 Yes 1 - 1.0% Yes 0.13 No No
165 Yes 1 - 1.0% No NAP No No
166 Yes 1 - 1.0% No NAP No No
167 Yes 2 - 1.0% No NAP No 0
168 Yes 1 - 1.0% No NAP No No
169 Yes 2 - 1.0% No NAP No 0
170 Yes 1 - 1.0% Yes 0.15 No No
171 Yes 1 - 1.0% Yes 0.12 No No
172 Yes 2 - 1.0% No NAP No 0
173 Yes 1 - 1.0% Yes 0.17 No No
174 Yes 1 - 1.0% Yes 0.14 No No
175 Yes 1 - 1.0% Yes 0.15 No No
176 Yes 1 - 1.0% Yes 0.19 No No
177 Yes 1 - 1.0% Yes 0.18 No No
179 Yes 1 - 1% Yes 0.09 No No
180 Yes 1 - 1.0% No NAP No No
181 Yes 1 - 1.0% Yes 0.1 No No
----------------------------------------------------------------------------------------------------------------------
HURRICANE FLOOD ENVIRONMENTAL
LOAN INSURANCE INSURANCE INSURANCE SAE SPE TWO-TIER NON-CONSOLIDATION
POOL NO. (Y/N) (Y/N) (Y/N) (Y/N) (Y/N) SPE (Y/N) OPINION (Y/N)
----------------------------------------------------------------------------------------------------------------------
2 Yes No No Yes Yes Yes Yes
20 Yes No No Yes Yes Yes Yes
43 Yes No No No No No No
60 Yes No No Yes Yes No No
61 Yes No No Yes Yes No No
67 Yes No No Yes Yes No No
70 Yes No No Yes Yes No No
73 Yes No No Yes Yes No No
84 Yes No No Yes Yes Yes Yes
87 Yes No No Yes Yes Yes Yes
91 Yes No No Yes Yes No No
92 Yes No No Yes Yes Yes Yes
93 Yes No No Yes Yes Yes Yes
96 Yes No No No No No No
98 Yes No No Yes Yes No No
103 Yes No No No No No No
106 Yes No No Yes Yes No No
108 Yes No No Yes No No No
115 Yes No Yes - Group No No No No
120 Yes No Yes - Group Yes Yes No No
122 Yes No Yes - Group Yes No No No
123 Yes Yes Yes - Group No No No No
124 Yes No Yes - Group Yes Yes No No
125 Yes No Yes - Group Yes Yes No No
126 Yes No Yes - Group No No No No
127 Yes No Yes - Group Yes No No No
129 Yes No Yes - Group Yes Yes No No
130 Yes No Yes - Group Yes Yes Yes No
131 Yes No Yes - Group No No No No
132 Yes No Yes - Group Yes No No No
136 Yes No Yes - Group Yes No No No
137 Yes No Yes - Group Yes No No No
138 Yes Yes Yes - Group Yes No No No
139 Yes No Yes - Group No No No No
140 Yes No Yes - Group No No No No
141 Yes No Yes - Group Yes No No No
142 Yes No Yes - Group No No No No
144 Yes No Yes - Group No No No No
145 Yes No No Yes Yes No No
146 Yes No Yes - Group Yes No No No
147 Yes No Yes - Group Yes Yes No No
148 Yes No Yes - Group No No No No
149 Yes No Yes - Group Yes No No No
150 Yes No Yes - Group Yes Yes No No
151 Yes No Yes - Group Yes No No No
152 Yes No Yes - Group Yes Yes No No
153 Yes No Yes - Group Yes No No No
155 Yes No Yes - Group Yes Yes No No
156 Yes No No Yes Yes Yes Yes
157 Yes No No Yes Yes Yes Yes
158 Yes No Yes - Group Yes Yes No No
159 Yes No Yes - Group No No No No
160 Yes No No Yes Yes Yes Yes
161 Yes No No Yes Yes Yes Yes
162 Yes No Yes - Group No No No No
163 Yes No No Yes Yes Yes Yes
164 Yes No Yes - Group Yes No No No
165 Yes No Yes - Group No No No No
166 Yes Yes Yes - Group Yes Yes No No
167 Yes No No Yes Yes Yes Yes
168 Yes No Yes - Group Yes No No No
169 Yes No No Yes Yes Yes Yes
170 Yes No Yes - Group Yes No No No
171 Yes No Yes - Group No No No No
172 Yes No No Yes Yes Yes Yes
173 Yes No Yes - Group Yes No No No
174 Yes No Yes - Group Yes No No No
175 Yes No Yes - Group Yes No No No
176 Yes No Yes - Group Yes No No No
177 Yes No Yes - Group No No No No
179 Yes No Yes - Group No No No No
180 Yes No Yes - Group No No No No
181 Yes No Yes - Group No No No No
------------------------------------------------------------------------------------------------------------------------------------
CURRENT ADDITIONAL CURRENT ADDITIONAL DESCRIPTION OF
LOAN INDEPENDENT FINANCING IN FINANCING SECURED CURRENT ADDITIONAL STANDSTILL AGREEMENT
POOL NO. DIRECTOR (Y/N) PLACE (Y/N) BY PROPERTY (Y/N) FINANCING IN PLACE (Y/N)
------------------------------------------------------------------------------------------------------------------------------------
2 Yes No NAP NAP NAP
20 Yes No NAP NAP NAP
43 No No NAP NAP NAP
60 No No NAP NAP NAP
61 No No NAP NAP NAP
67 No No NAP NAP NAP
70 No No NAP NAP NAP
73 No No NAP NAP NAP
84 Yes No NAP NAP NAP
87 Yes No NAP NAP NAP
91 No No NAP NAP NAP
92 Yes No NAP NAP NAP
93 Yes No NAP NAP NAP
96 No No NAP NAP NAP
98 No No NAP NAP NAP
103 No No NAP NAP NAP
106 No No NAP NAP NAP
108 No No NAP NAP NAP
115 No No NAP NAP NAP
120 No No NAP NAP NAP
122 No No NAP NAP NAP
123 No No NAP NAP NAP
124 No No NAP NAP NAP
125 No No NAP NAP NAP
126 No No NAP NAP NAP
127 No No NAP NAP NAP
129 No No NAP NAP NAP
130 No No NAP NAP NAP
131 No No NAP NAP NAP
132 No No NAP NAP NAP
136 No No NAP NAP NAP
137 No No NAP NAP NAP
138 No No NAP NAP NAP
139 No No NAP NAP NAP
140 No No NAP NAP NAP
141 No No NAP NAP NAP
142 No No NAP NAP NAP
144 No No NAP NAP NAP
145 No No NAP NAP NAP
146 No No NAP NAP NAP
147 No No NAP NAP NAP
148 No No NAP NAP NAP
149 No No NAP NAP NAP
150 No No NAP NAP NAP
151 No No NAP NAP NAP
152 No No NAP NAP NAP
153 No No NAP NAP NAP
155 No No NAP NAP NAP
156 Yes No NAP NAP NAP
157 Yes No NAP NAP NAP
158 No No NAP NAP NAP
159 No No NAP NAP NAP
160 Yes No NAP NAP NAP
161 Yes No NAP NAP NAP
162 No No NAP NAP NAP
163 Yes No NAP NAP NAP
164 No No NAP NAP NAP
165 No No NAP NAP NAP
166 No No NAP NAP NAP
167 Yes No NAP NAP NAP
168 No No NAP NAP NAP
169 Yes No NAP NAP NAP
170 No No NAP NAP NAP
171 No No NAP NAP NAP
172 Yes No NAP NAP NAP
173 No No NAP NAP NAP
174 No No NAP NAP NAP
175 No No NAP NAP NAP
176 No No NAP NAP NAP
177 No No NAP NAP NAP
179 No No NAP NAP NAP
180 No No NAP NAP NAP
181 No No NAP NAP NAP
----------------------------------------------------------------------------------------------------------------------------
ADDITIONAL FINANCING FUTURE ADDITIONAL
LOAN PERMITTED IN FINANCING SECURED
POOL NO. FUTURE (Y/N) BY PROPERTY (Y/N) DESCRIPTION OF FUTURE ADDITIONAL FINANCING
----------------------------------------------------------------------------------------------------------------------------
2 No NAP NAP
20 No NAP NAP
43 No NAP NAP
60 No NAP NAP
61 No NAP NAP
67 No NAP NAP
70 No NAP NAP
73 No NAP NAP
84 No NAP NAP
87 No NAP NAP
91 No NAP NAP
92 No NAP NAP
93 No NAP NAP
96 Yes Yes Future secondary/junior financing shall not be permitted by
the borrowing entity, without the prior written consent of
Lender. Lender agrees to future secondary/junior financing,
provided such financing shall comply with the following
minimum requirements: a) The property cash flow, as
underwritten by Lender, shall cover the debt service
(principal and interest) on the Loan and the junior loan
("Combined Loans") at a coverage ratio of 2.10 times; b) The
loan to value ratio of the Combined Loans shall not exceed
50%; c) At Lender's sole discretion, Lender has the right to
require Borrower to fund an impound account, in amount to be
determined by Lender, for potential re-tenanting costs
associated with any tenant occupying greater than 20% of net
rentable area or accounting for greater than 20% of scheduled
rental income; d) Borrower, shall be required to notify
Lender of any material monetary default under the junior
loan, in addition, Lender shall record a Request for Notice
of Default with the titl
98 No NAP NAP
103 No NAP NAP
106 No NAP NAP
108 No NAP NAP
115 No NAP NAP
120 No NAP NAP
122 No NAP NAP
123 No NAP NAP
124 No NAP NAP
125 No NAP NAP
126 No NAP NAP
127 No NAP NAP
129 No NAP NAP
130 No NAP NAP
131 No NAP NAP
132 No NAP NAP
136 No NAP NAP
137 No NAP NAP
138 No NAP NAP
139 No NAP NAP
140 No NAP NAP
141 No NAP NAP
142 No NAP NAP
144 No NAP NAP
145 No NAP NAP
146 No NAP NAP
147 No NAP NAP
148 No NAP NAP
149 No NAP NAP
150 No NAP NAP
151 No NAP NAP
152 No NAP NAP
153 No NAP NAP
155 No NAP NAP
156 No NAP NAP
157 No NAP NAP
158 No NAP NAP
159 No NAP NAP
160 No NAP NAP
161 No NAP NAP
162 No NAP NAP
163 No NAP NAP
164 No NAP NAP
165 No NAP NAP
166 No NAP NAP
167 No NAP NAP
168 No NAP NAP
169 No NAP NAP
170 No NAP NAP
171 No NAP NAP
172 No NAP NAP
173 No NAP NAP
174 No NAP NAP
175 No NAP NAP
176 No NAP NAP
177 No NAP NAP
179 No NAP NAP
180 No NAP NAP
181 No NAP NAP
--------------------------------------------------------------------------------------------------------------------
NUMBER SEC. 8 NO. OF SEC. 42 NO. OF
LOAN TIMES (MULTIFAMILY) SEC. 8 (MULTIFAMILY) SEC. 42 PARTIAL COLLATERAL
POOL NO. DELINQUENT (Y/N) UNITS (Y/N) UNITS RELEASE (Y/N)
--------------------------------------------------------------------------------------------------------------------
2 0 NAP NAP NAP NAP No
20 0 NAP NAP NAP NAP No
43 0 NAP NAP NAP NAP No
60 0 NAP NAP NAP NAP No
61 0 NAP NAP NAP NAP No
67 0 NAP NAP NAP NAP No
70 0 NAP NAP NAP NAP No
73 0 NAP NAP NAP NAP No
84 0 NAP NAP NAP NAP Yes
87 0 NAP NAP NAP NAP Yes
91 0 NAP NAP NAP NAP No
92 0 NAP NAP NAP NAP Yes
93 0 NAP NAP NAP NAP Yes
96 0 NAP NAP NAP NAP No
98 0 NAP NAP NAP NAP No
103 0 NAP NAP NAP NAP No
106 0 NAP NAP NAP NAP No
108 0 No NAP No NAP No
115 0 NAP NAP NAP NAP No
120 0 NAP NAP NAP NAP No
122 0 Yes 12 No NAP No
123 0 NAP NAP NAP NAP No
124 0 NAP NAP NAP NAP No
125 0 No NAP No NAP No
126 0 NAP NAP NAP NAP No
127 0 NAP NAP NAP NAP No
129 0 NAP NAP NAP NAP No
130 0 NAP NAP NAP NAP No
131 0 NAP NAP NAP NAP No
132 0 NAP NAP NAP NAP No
136 0 No NAP No NAP No
137 0 NAP NAP NAP NAP No
138 0 NAP NAP NAP NAP No
139 0 NAP NAP NAP NAP No
140 0 NAP NAP NAP NAP No
141 0 No NAP No NAP No
142 0 NAP NAP NAP NAP No
144 0 NAP NAP NAP NAP No
145 0 No NAP No NAP No
146 0 NAP NAP NAP NAP No
147 0 NAP NAP NAP NAP No
148 0 NAP NAP NAP NAP No
149 0 NAP NAP NAP NAP No
150 0 NAP NAP NAP NAP No
151 0 NAP NAP NAP NAP No
152 0 NAP NAP NAP NAP No
153 0 NAP NAP NAP NAP No
155 0 NAP NAP NAP NAP No
156 0 NAP NAP NAP NAP Yes
157 0 NAP NAP NAP NAP Yes
158 0 NAP NAP NAP NAP No
159 0 NAP NAP NAP NAP No
160 0 NAP NAP NAP NAP Yes
161 0 NAP NAP NAP NAP Yes
162 0 No NAP No NAP No
163 0 NAP NAP NAP NAP Yes
164 0 NAP NAP NAP NAP No
165 0 NAP NAP NAP NAP No
166 0 NAP NAP NAP NAP No
167 0 NAP NAP NAP NAP Yes
168 0 NAP NAP NAP NAP No
169 0 NAP NAP NAP NAP Yes
170 0 NAP NAP NAP NAP No
171 0 NAP NAP NAP NAP No
172 0 NAP NAP NAP NAP Yes
173 0 NAP NAP NAP NAP No
174 0 NAP NAP NAP NAP No
175 0 No NAP No NAP No
176 0 NAP NAP NAP NAP No
177 0 NAP NAP NAP NAP No
179 0 NAP NAP NAP NAP No
180 0 NAP NAP NAP NAP No
181 0 No NAP No NAP No
------------------------------------------------------------------------------------------------------------------------------------
LOAN
POOL NO. PARTIAL COLLATERAL RELEASE DESCRIPTION
------------------------------------------------------------------------------------------------------------------------------------
2 NAP
20 NAP
43 NAP
60 NAP
61 NAP
67 NAP
70 NAP
73 NAP
84 Partial defeasance allowed subject to 125% of the allocated balance and lockout provisions, so long as the LTV is
not greater than 65% and the DSCR is at least 1.80x.
87 Partial defeasance allowed subject to 125% of the allocated balance and lockout provisions, so long as the LTV is
not greater than 65% and the DSCR is at least 1.80x.
91 NAP
92 Partial defeasance allowed subject to 125% of the allocated balance and lockout provisions, so long as the LTV is
not greater than 65% and the DSCR is at least 1.80x.
93 Partial defeasance allowed subject to 125% of the allocated balance and lockout provisions, so long as the LTV is
not greater than 65% and the DSCR is at least 1.80x.
96 NAP
98 NAP
103 NAP
106 NAP
108 NAP
115 NAP
120 NAP
122 NAP
123 NAP
124 NAP
125 NAP
126 NAP
127 NAP
129 NAP
130 NAP
131 NAP
132 NAP
136 NAP
137 NAP
138 NAP
139 NAP
140 NAP
141 NAP
142 NAP
144 NAP
145 NAP
146 NAP
147 NAP
148 NAP
149 NAP
150 NAP
151 NAP
152 NAP
153 NAP
155 NAP
156 Partial defeasance allowed subject to 125% of the allocated balance and lockout provisions, so long as the LTV is
not greater than 65% and the DSCR is at least 1.80x.
157 Partial defeasance allowed subject to 125% of the allocated balance and lockout provisions, so long as the LTV is
not greater than 65% and the DSCR is at least 1.80x.
158 NAP
159 NAP
160 Partial defeasance allowed subject to 125% of the allocated balance and lockout provisions, so long as the LTV is
not greater than 65% and the DSCR is at least 1.80x.
161 Partial defeasance allowed subject to 125% of the allocated balance and lockout provisions, so long as the LTV is
not greater than 65% and the DSCR is at least 1.80x.
162 NAP
163 Partial defeasance allowed subject to 125% of the allocated balance and lockout provisions, so long as the LTV is
not greater than 65% and the DSCR is at least 1.80x.
164 NAP
165 NAP
166 NAP
167 Partial defeasance allowed subject to 125% of the allocated balance and lockout provisions, so long as the LTV is
not greater than 65% and the DSCR is at least 1.80x.
168 NAP
169 Partial defeasance allowed subject to 125% of the allocated balance and lockout provisions, so long as the LTV is
not greater than 65% and the DSCR is at least 1.80x.
170 NAP
171 NAP
172 Partial defeasance allowed subject to 125% of the allocated balance and lockout provisions, so long as the LTV is
not greater than 65% and the DSCR is at least 1.80x.
173 NAP
174 NAP
175 NAP
176 NAP
177 NAP
179 NAP
180 NAP
181 NAP
-------------------------------------------------------------------------------------------------------------------------------
PARTIAL COLLATERAL
LOAN RELEASE PREPAYMENT OUTPARCEL OR OTHER
POOL NO. PENALTY DESCRIPTION RELEASE (Y/N) OUTPARCEL OR OTHER RELEASE DESCRIPTION
-------------------------------------------------------------------------------------------------------------------------------
2 NAP No NAP
20 NAP No NAP
43 NAP No NAP
60 NAP No NAP
61 NAP No NAP
67 NAP No NAP
70 NAP No NAP
73 NAP No NAP
84 Partial Defeasance No NAP
87 Partial Defeasance No NAP
91 NAP No NAP
92 Partial Defeasance No NAP
93 Partial Defeasance No NAP
96 NAP No NAP
98 NAP No NAP
103 NAP No NAP
106 NAP No NAP
108 NAP No NAP
115 NAP No NAP
120 NAP No NAP
122 NAP No NAP
123 NAP No NAP
124 NAP No NAP
125 NAP No NAP
126 NAP No NAP
127 NAP No NAP
129 NAP No NAP
130 NAP No NAP
131 NAP No NAP
132 NAP Yes Partial Reconveyance/ Outparcel release to the City of
Colorado Springs in connection with the Academy
Boulevard Maizeland to Galley Road Traffic Safety
Improvements Project.
136 NAP No NAP
137 NAP No NAP
138 NAP No NAP
139 NAP No NAP
140 NAP No NAP
141 NAP No NAP
142 NAP No NAP
144 NAP No NAP
145 NAP No NAP
146 NAP No NAP
147 NAP No NAP
148 NAP No NAP
149 NAP No NAP
150 NAP No NAP
151 NAP No NAP
152 NAP No NAP
153 NAP No NAP
155 NAP No NAP
156 Partial Defeasance No NAP
157 Partial Defeasance No NAP
158 NAP No NAP
159 NAP No NAP
160 Partial Defeasance No NAP
161 Partial Defeasance No NAP
162 NAP No NAP
163 Partial Defeasance No NAP
164 NAP No NAP
165 NAP No NAP
166 NAP No NAP
167 Partial Defeasance No NAP
168 NAP No NAP
169 Partial Defeasance No NAP
170 NAP No NAP
171 NAP No NAP
172 Partial Defeasance No NAP
173 NAP No NAP
174 NAP No NAP
175 NAP No NAP
176 NAP No NAP
177 NAP No NAP
179 NAP No NAP
180 NAP No NAP
181 NAP No NAP
------------------------------------------------------------------------------------------------------------------------------------
LOAN SUBSTITUTION
POOL NO. ALLOWED (Y/N) SUBSTITUTION PROVISION DESCRIPTION
------------------------------------------------------------------------------------------------------------------------------------
2 No NAP
20 No NAP
43 No NAP
60 No NAP
61 No NAP
67 No NAP
70 No NAP
73 No NAP
84 Yes Substitution of collateral allowed, up to 30% of the loan amount, of other Best Buy stores,
subject to lender and rating agency approval, with an LTV not greater than 65%, a DSCR of at
least 1.80x, and recommended deferred maintenance of not more than $10,000, with a deferred
maintenance deposit of 150%.
87 Yes Substitution of collateral allowed, up to 30% of the loan amount, of other Best Buy stores,
subject to lender and rating agency approval, with an LTV not greater than 65%, a DSCR of at
least 1.80x, and recommended deferred maintenance of not more than $10,000, with a deferred
maintenance deposit of 150%.
91 No NAP
92 Yes Substitution of collateral allowed, up to 30% of the loan amount, of other Best Buy stores,
subject to lender and rating agency approval, with an LTV not greater than 65%, a DSCR of at
least 1.80x, and recommended deferred maintenance of not more than $10,000, with a deferred
maintenance deposit of 150%.
93 Yes Substitution of collateral allowed, up to 30% of the loan amount, of other Best Buy stores,
subject to lender and rating agency approval, with an LTV not greater than 65%, a DSCR of at
least 1.80x, and recommended deferred maintenance of not more than $10,000, with a deferred
maintenance deposit of 150%.
96 No NAP
98 No NAP
103 No NAP
106 No NAP
108 No NAP
115 No NAP
120 No NAP
122 No NAP
123 No NAP
124 No NAP
125 No NAP
126 No NAP
127 No NAP
129 No NAP
130 No NAP
131 No NAP
132 No NAP
136 No NAP
137 No NAP
138 No NAP
139 No NAP
140 No NAP
141 No NAP
142 No NAP
144 No NAP
145 No NAP
146 No NAP
147 No NAP
148 No NAP
149 No NAP
150 No NAP
151 No NAP
152 No NAP
153 No NAP
155 No NAP
156 Yes Substitution of collateral allowed, up to 30% of the loan amount, of other Best Buy stores,
subject to lender and rating agency approval, with an LTV not greater than 65%, a DSCR of at
least 1.80x, and recommended deferred maintenance of not more than $10,000, with a deferred
maintenance deposit of 150%.
157 Yes Substitution of collateral allowed, up to 30% of the loan amount, of other Best Buy stores,
subject to lender and rating agency approval, with an LTV not greater than 65%, a DSCR of at
least 1.80x, and recommended deferred maintenance of not more than $10,000, with a deferred
maintenance deposit of 150%.
158 No NAP
159 No NAP
160 Yes Substitution of collateral allowed, up to 30% of the loan amount, of other Best Buy stores,
subject to lender and rating agency approval, with an LTV not greater than 65%, a DSCR of at
least 1.80x, and recommended deferred maintenance of not more than $10,000, with a deferred
maintenance deposit of 150%.
161 Yes Substitution of collateral allowed, up to 30% of the loan amount, of other Best Buy stores,
subject to lender and rating agency approval, with an LTV not greater than 65%, a DSCR of at
least 1.80x, and recommended deferred maintenance of not more than $10,000, with a deferred
maintenance deposit of 150%.
162 No NAP
163 Yes Substitution of collateral allowed, up to 30% of the loan amount, of other Best Buy stores,
subject to lender and rating agency approval, with an LTV not greater than 65%, a DSCR of at
least 1.80x, and recommended deferred maintenance of not more than $10,000, with a deferred
maintenance deposit of 150%.
164 No NAP
165 No NAP
166 No NAP
167 Yes Substitution of collateral allowed, up to 30% of the loan amount, of other Best Buy stores,
subject to lender and rating agency approval, with an LTV not greater than 65%, a DSCR of at
least 1.80x, and recommended deferred maintenance of not more than $10,000, with a deferred
maintenance deposit of 150%.
168 No NAP
169 Yes Substitution of collateral allowed, up to 30% of the loan amount, of other Best Buy stores,
subject to lender and rating agency approval, with an LTV not greater than 65%, a DSCR of at
least 1.80x, and recommended deferred maintenance of not more than $10,000, with a deferred
maintenance deposit of 150%.
170 No NAP
171 No NAP
172 Yes Substitution of collateral allowed, up to 30% of the loan amount, of other Best Buy stores,
subject to lender and rating agency approval, with an LTV not greater than 65%, a DSCR of at
least 1.80x, and recommended deferred maintenance of not more than $10,000, with a deferred
maintenance deposit of 150%.
173 No NAP
174 No NAP
175 No NAP
176 No NAP
177 No NAP
179 No NAP
180 No NAP
181 No NAP
-----------------------------------------------------------------------------------------------------------------------------
VOLUNTARY PARTIAL PARTIAL
LOAN PREPAYMENT PREPAYMENT
POOL NO. PERMITTED (Y/N) DESCRIPTION DAY PREPAYMENT ALLOWED SEASONING
-----------------------------------------------------------------------------------------------------------------------------
2 NAP NAP Any Day 0
20 NAP NAP Any Day 3
43 NAP NAP Any Day with a full month of accrued interest 4
60 NAP NAP Any Day with a full month of accrued interest 3
61 NAP NAP Any Day with a full month of accrued interest 3
67 NAP NAP 1st of Month 18
70 NAP NAP Any Day with a full month of accrued interest 3
73 NAP NAP Any Day 4
84 Yes Partial Defeasance Any Day with a full month of accrued interest 1
87 Yes Partial Defeasance Any Day with a full month of accrued interest 1
91 NAP NAP Any Day 4
92 Yes Partial Defeasance Any Day with a full month of accrued interest 1
93 Yes Partial Defeasance Any Day with a full month of accrued interest 1
96 NAP NAP Any Day 4
98 NAP NAP Any Day 4
103 NAP NAP Any Day with a full month of accrued interest 4
106 NAP NAP Any Day with a full month of accrued interest 3
108 NAP NAP Any Day with a full month of accrued interest 3
115 NAP NAP Any Day 5
120 NAP NAP Any Day 4
122 NAP NAP Any Day with a full month of accrued interest 3
123 NAP NAP Any Day with a full month of accrued interest 3
124 NAP NAP Any Day 3
125 NAP NAP Any Day 4
126 NAP NAP Any Day 5
127 NAP NAP Any Day 4
129 NAP NAP Any Day with a full month of accrued interest 4
130 NAP NAP Any Day with a full month of accrued interest 4
131 NAP NAP Any Day with a full month of accrued interest 3
132 NAP NAP Any Day 5
136 NAP NAP Any Day with a full month of accrued interest 6
137 NAP NAP Any Day with a full month of accrued interest 6
138 NAP NAP Any Day 7
139 NAP NAP Any Day with a full month of accrued interest 7
140 NAP NAP Any Day 5
141 NAP NAP Any Day with a full month of accrued interest 6
142 NAP NAP Any Day 4
144 NAP NAP Any Day 5
145 NAP NAP 1st of Month 32
146 NAP NAP Any Day with a full month of accrued interest 6
147 NAP NAP Any Day 3
148 NAP NAP Any Day 5
149 NAP NAP Any Day 6
150 NAP NAP Any Day 6
151 NAP NAP Any Day 6
152 NAP NAP Any Day 7
153 NAP NAP Any Day 4
155 NAP NAP Any Day with a full month of accrued interest 3
156 Yes Partial Defeasance Any Day with a full month of accrued interest 1
157 Yes Partial Defeasance Any Day with a full month of accrued interest 1
158 NAP NAP Any Day with a full month of accrued interest 3
159 NAP NAP Any Day with a full month of accrued interest 3
160 Yes Partial Defeasance Any Day with a full month of accrued interest 1
161 Yes Partial Defeasance Any Day with a full month of accrued interest 1
162 NAP NAP Any Day 4
163 Yes Partial Defeasance Any Day with a full month of accrued interest 1
164 NAP NAP Any Day 4
165 NAP NAP Any Day 5
166 NAP NAP Any Day 5
167 Yes Partial Defeasance Any Day with a full month of accrued interest 1
168 NAP NAP Any Day 5
169 Yes Partial Defeasance Any Day with a full month of accrued interest 1
170 NAP NAP Any Day with a full month of accrued interest 6
171 NAP NAP Any Day 4
172 Yes Partial Defeasance Any Day with a full month of accrued interest 1
173 NAP NAP Any Day with a full month of accrued interest 6
174 NAP NAP Any Day with a full month of accrued interest 7
175 NAP NAP Any Day 4
176 NAP NAP Any Day 4
177 NAP NAP Any Day 7
179 NAP NAP Any Day with a full month of accrued interest 4
180 NAP NAP Any Day 5
181 NAP NAP Any Day 4
------------------------------------------------------------------------------------------------------------------------------------
LOAN
POOL NO. LO LO END DATE DEF DEF/YM1 DEF/YM YM3 YM2 YM1
------------------------------------------------------------------------------------------------------------------------------------
2 23 12/01/2011 93
20 35 08/31/2011 81
43 36 07/31/2011 80
60 35 08/31/2006 21
61 35 08/31/2006 21
67 59 05/31/2020 177
70 34 08/31/2011 82
73 35 07/31/2011 81
84 25 10/31/2011 91
87 25 10/31/2011 91
91 34 07/31/2011 82
92 25 10/31/2011 91
93 25 10/31/2011 91
96 34 07/31/2011 82
98 35 07/31/2021 201
103 36 07/31/2011 80
106 35 08/31/2011 81
108 35 08/31/2011 81
115 35 06/30/2011 81
120 34 07/31/2011 82
122 35 08/31/2011 81
123 35 08/31/2011 81
124 35 08/31/2011 81
125 34 07/31/2011 82
126 34 06/30/2016 142
127 34 07/31/2011 82
129 35 07/31/2011 81
130 36 07/31/2016 140
131 34 08/31/2006 22
132 34 06/30/2011 82
136 34 05/31/2011 82
137 35 05/31/2006 21
138 35 04/30/2011 81
139 35 04/30/2011 81
140 34 06/30/2011 82
141 34 05/31/2011 82
142 35 07/31/2021 201
144 34 06/30/2011 82
145 56 12/31/2008 57
146 35 05/31/2011 81
147 34 08/31/2011 82
148 34 06/30/2011 82
149 35 05/31/2011 81
150 35 05/31/2011 81
151 35 05/31/2011 81
152 35 04/30/2011 81
153 34 07/31/2006 22
155 35 08/31/2011 81
156 25 10/31/2011 91
157 25 10/31/2011 91
158 35 08/31/2011 81
159 35 08/31/2016 141
160 25 10/31/2011 91
161 25 10/31/2011 91
162 34 07/31/2016 142
163 25 10/31/2011 91
164 35 07/31/2006 21
165 34 06/30/2011 82
166 34 06/30/2011 82
167 25 10/31/2011 91
168 35 06/30/2011 81
169 25 10/31/2011 91
170 35 05/31/2011 81
171 34 07/31/2006 22
172 25 10/31/2011 91
173 35 05/31/2011 81
174 35 04/30/2011 81
175 35 07/31/2016 141
176 35 07/31/2021 201
177 35 04/30/2011 81
179 35 07/31/2011 81
180 34 06/30/2011 82
181 35 07/31/2011 81
-----------------------------------------------------------------------------------------------------------------------------------
LOAN
POOL NO. YM 7% 6% 5% 4% 3% 2% 1%
-----------------------------------------------------------------------------------------------------------------------------------
2
20
43
60
61
67
70
73
84
87
91
92
93
96
98
103
106
108
115
120
122
123
124
125
126
127
129
130
131
132
136
137
138
139
140
141
142
144
145
146
147
148
149
150
151
152
153
155
156
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
179
180
181
----------------------------------------------------------------------------------------------------------------------------------
YIELD MAINTENANCE DEFEASANCE LANGUAGE
LOAN LANGUAGE CONFORMS CONFORMS TO
POOL NO. OPEN TO STANDARD (Y/N) EXCEPTION STANDARD (Y/N) EXCEPTION
----------------------------------------------------------------------------------------------------------------------------------
2 4 Yes NAP Yes NAP
20 4 NAP NAP Yes NAP
43 4 NAP NAP Yes NAP
60 4 NAP NAP Yes NAP
61 4 NAP NAP Yes NAP
67 4 NAP NAP Yes NAP
70 4 NAP NAP Yes NAP
73 4 NAP NAP Yes NAP
84 4 NAP NAP Yes NAP
87 4 NAP NAP Yes NAP
91 4 NAP NAP Yes NAP
92 4 NAP NAP Yes NAP
93 4 NAP NAP Yes NAP
96 4 NAP NAP Yes NAP
98 4 NAP NAP Yes NAP
103 4 NAP NAP Yes NAP
106 4 NAP NAP Yes NAP
108 4 NAP NAP Yes NAP
115 4 NAP NAP Yes NAP
120 4 NAP NAP Yes NAP
122 4 NAP NAP Yes NAP
123 4 NAP NAP Yes NAP
124 4 NAP NAP Yes NAP
125 4 NAP NAP Yes NAP
126 4 NAP NAP Yes NAP
127 4 NAP NAP Yes NAP
129 4 NAP NAP Yes NAP
130 4 NAP NAP Yes NAP
131 4 NAP NAP Yes NAP
132 4 NAP NAP Yes NAP
136 4 NAP NAP Yes NAP
137 4 NAP NAP Yes NAP
138 4 NAP NAP Yes NAP
139 4 NAP NAP Yes NAP
140 4 NAP NAP Yes NAP
141 4 NAP NAP Yes NAP
142 4 NAP NAP Yes NAP
144 4 NAP NAP Yes NAP
145 7 NAP NAP Yes NAP
146 4 NAP NAP Yes NAP
147 4 NAP NAP Yes NAP
148 4 NAP NAP Yes NAP
149 4 NAP NAP Yes NAP
150 4 NAP NAP Yes NAP
151 4 NAP NAP Yes NAP
152 4 NAP NAP Yes NAP
153 4 NAP NAP Yes NAP
155 4 NAP NAP Yes NAP
156 4 NAP NAP Yes NAP
157 4 NAP NAP Yes NAP
158 4 NAP NAP Yes NAP
159 4 NAP NAP Yes NAP
160 4 NAP NAP Yes NAP
161 4 NAP NAP Yes NAP
162 4 NAP NAP Yes NAP
163 4 NAP NAP Yes NAP
164 4 NAP NAP Yes NAP
165 4 NAP NAP Yes NAP
166 4 NAP NAP Yes NAP
167 4 NAP NAP Yes NAP
168 4 NAP NAP Yes NAP
169 4 NAP NAP Yes NAP
170 4 NAP NAP Yes NAP
171 4 NAP NAP Yes NAP
172 4 NAP NAP Yes NAP
173 4 NAP NAP Yes NAP
174 4 NAP NAP Yes NAP
175 4 NAP NAP Yes NAP
176 4 NAP NAP Yes NAP
177 4 NAP NAP Yes NAP
179 4 NAP NAP Yes NAP
180 4 NAP NAP Yes NAP
181 4 NAP NAP Yes NAP
EXHIBIT J
BSCMSI 2001-TOP6
LIST OF LOANS AS TO WHICH EXCESS SERVICING FEES ARE PAID - WELLS FARGO
------------------------------------------------------------------------------------------------------------
LOAN MORTGAGE LOAN
POOL NO. SELLER PROPERTY NAME LOAN NUMBER CUT-OFF DATE BALANCE
------------------------------------------------------------------------------------------------------------
2 WFB Coliseum Centre 310900730 $73,000,000
32 WFB Boca Park Retail Center 310900622 $19,952,991
56 WFB Golden Springs Business Center (Building C-1) 310900582 $10,395,315
00 XXX Xxxxxxx Xxxxxxxxx Center 310900619A $6,909,515
00 XXX Xxxxxx Xxxxxx Station 310900619B $6,755,971
78 WFB Cinemark 18 Theatres 310900099 $6,070,845
81 WFB Ventura Pettit East Building 310900623 $5,976,778
84 WFB Ladson Crossing Shopping Center 310900618 $5,781,396
19 WFB Best Buy - Virginia Beach, Virginia 310900713B $4,832,683
20 WFB Best Buy - Nashua, New Hampshire 310900713E $4,546,537
100 WFB Ticketmaster 310900568 $4,216,096
21 WFB Best Buy - North Attleboro, Massachusetts 310900713D $4,133,216
22 WFB Best Buy - Schaumburg, IL 310900713A $4,006,040
000 XXX Xxxxxx Xxxxxxxx Xxxxxxxxx 310900609 $3,979,824
000 XXX Xxxxxx Xxxxxx Shopping Center 310900585 $3,969,954
110 WFB 0000 Xxxxxx Xxxx 310900507 $3,581,727
113 WFB 000 X. Xxxxx Xxxx 310900625 $3,491,062
115 WFB Chautauqua Apartments 310900636 $3,286,428
122 WFB Byerly's Park Center 310900587 $2,987,525
000 XXX Xxxxxxxx Center 310900580 $2,629,361
129 WFB Chaparral Apartments 310900637 $2,390,129
000 XXX Xxxxxx Xxxxxx 310900630 $2,358,740
131 WFB West Fargo Warehouses 310900566 $2,336,804
132 WFB Northwinds Apartments 310900613 $2,288,095
133 WFB Nogg Chemical & Paper Co. 310900581 $2,264,712
000 XXX Xxxxxxxx Xxxxxx Shopping Center 310900611 $2,242,566
136 WFB Andover Property 310900602 $2,164,594
000 XXX Xxxxxxx Xxxxxx 310900523 $2,143,193
000 XXX Xxxxxx Xxxx Xxxxx 310900627 $1,992,380
139 WFB Polo Center 310900545 $1,988,875
000 XXX Xxxxxxxxx Apartments 310900521 $1,986,586
000 XXX Xxxxxxxx Xxxx Xxxxxxx 310900499 $1,984,763
000 XXX Xxxxxx Xxxxx Xxxxxxxx Xxxx 310900520 $1,984,634
000 XXX Xxxx Xxxxxx 310900506 $1,984,418
000 XXX X. Xxxxxxxx Xxxxxx 310900584 $1,981,760
148 WFB San Remo Apartments 310900536 $1,960,919
000 XXX Xxxxxxxx'x- Xxxxxxx 310900620 $1,885,728
000 XXX Xxxxxxx Xxx 310900588 $1,789,501
000 XXX Xxxxxxx Xxxxxxxxxx Xxxx 310900410 $1,727,852
000 XXX Xxxxxx Xxxxxx 310900554 $1,694,064
154 WFB PETsMART Salem, OR 310900552 $1,690,924
000 XXX Xxxxxxxx Xxxxxxxxx 310900594 $1,688,406
156 WFB Good Shepherd Shopping Center 310900589 $1,688,386
157 WFB Superstores - Albuquerque 310900509 $1,688,269
158 WFB Grocery Outlet Retail Center 310900488 $1,686,939
159 WFB A-American Truxtun, Bakersfield 310900601 $1,656,713
161 WFB 0000 Xxxxxxxxxx Xxxxx 310900591 $1,594,065
23 WFB Best Buy - Arlington, Texas 310900713C $1,526,111
24 WFB Best Buy - Fort Worth (Ridgemar), Texas 310900713K $1,526,111
162 WFB 0000 X. Xxxxxxxx Xxxxxx 310900626 $1,496,094
000 XXX 00xx Xxxxxx Center 310900645 $1,485,727
25 WFB Best Buy - Dallas (Duncanville), Texas 310900713L $1,462,522
00 XXX Xxxx Xxx - Xxxxxxxx, XX 000000000X $1,446,626
000 XXX Xxxxxxxxx Xxxxxxx 310900592 $1,395,597
27 WFB Best Buy - Houston (Willowbrook), Texas 310900713G $1,335,346
165 WFB Borrego Self Storage 310900606 $1,318,405
000 XXX Xxxxx Xxxxxx Xxxxx 920900555 $1,245,527
167 WFB Andrews Commercial Center 890900564 $1,245,338
28 WFB Best Buy - Beaumont, Texas 310900713I $1,239,964
168 WFB Lok-Tite Self Storage 310900531 $1,239,056
29 WFB Best Buy - Fort Collins, CO 310900713F $1,220,888
000 XXX Xxxxxxxxx Corner 310900522 $1,217,003
000 XXX Xxxxxxxxxxx Xxxxx Self Storage 310900600 $1,194,027
30 WFB Best Buy - Albuquerque, New Mexico 310900713H $1,179,557
171 WFB Yates Commerce Associates 310900517 $1,092,510
000 XXX Xxxxxx Xxxxx Xxxx Center 310900542 $1,046,853
000 XXX Xxxxxxx Xxxxxxx 310900593 $1,026,761
000 XXX Xxxx Xxxxxx 310900614 $992,489
175 WFB Bank of the West 310900535 $992,045
177 WFB Kmart Retail Plaza 310900631 $845,933
178 WFB Wal-Mart Center 890900578 $805,691
179 WFB Tulare Inn MHP 310900605 $696,781
------------------------------------------------------------------------------------------------------------------
WELLS
LOAN WELLS WELLS SUBSERVICER PRIMARY\EXCESS DEAL TRUSTEE ADMINISTRATIVE
POOL NO. MASTER FEE PRIMARY FEE PRIMARY FEE SERVICING FEES* FEE COST RATE
------------------------------------------------------------------------------------------------------------------
2 2.00 1.00 0.00 0.00 3.00 0.24 3.24
32 2.00 1.00 0.00 0.00 3.00 0.24 3.24
56 2.00 1.00 0.00 0.00 3.00 0.24 3.24
42 2.00 1.00 0.00 0.00 3.00 0.24 3.24
43 2.00 1.00 0.00 0.00 3.00 0.24 3.24
78 2.00 1.00 0.00 1.00 4.00 0.24 4.24
81 2.00 1.00 0.00 1.00 4.00 0.24 4.24
84 2.00 1.00 0.00 1.00 4.00 0.24 4.24
19 2.00 1.00 0.00 0.00 3.00 0.24 3.24
20 2.00 1.00 0.00 0.00 3.00 0.24 3.24
100 2.00 1.00 0.00 1.00 4.00 0.24 4.24
21 2.00 1.00 0.00 0.00 3.00 0.24 3.24
22 2.00 1.00 0.00 0.00 3.00 0.24 3.24
103 2.00 1.00 0.00 3.00 6.00 0.24 6.24
105 2.00 1.00 0.00 3.00 6.00 0.24 6.24
110 2.00 1.00 0.00 3.00 6.00 0.24 6.24
113 2.00 1.00 0.00 3.00 6.00 0.24 6.24
115 2.00 1.00 0.00 3.00 6.00 0.24 6.24
122 2.00 1.00 0.00 3.00 6.00 0.24 6.24
127 2.00 1.00 0.00 3.00 6.00 0.24 6.24
129 2.00 1.00 0.00 3.00 6.00 0.24 6.24
130 2.00 1.00 0.00 3.00 6.00 0.24 6.24
131 2.00 1.00 0.00 3.00 6.00 0.24 6.24
132 2.00 1.00 0.00 3.00 6.00 0.24 6.24
133 2.00 1.00 0.00 3.00 6.00 0.24 6.24
134 2.00 1.00 0.00 3.00 6.00 0.24 6.24
136 2.00 1.00 0.00 3.00 6.00 0.24 6.24
137 2.00 1.00 0.00 3.00 6.00 0.24 6.24
138 2.00 1.00 0.00 5.00 8.00 0.24 8.24
139 2.00 1.00 0.00 5.00 8.00 0.24 8.24
143 2.00 1.00 0.00 5.00 8.00 0.24 8.24
144 2.00 1.00 0.00 5.00 8.00 0.24 8.24
145 2.00 1.00 0.00 5.00 8.00 0.24 8.24
146 2.00 1.00 0.00 5.00 8.00 0.24 8.24
147 2.00 1.00 0.00 5.00 8.00 0.24 8.24
148 2.00 1.00 0.00 5.00 8.00 0.24 8.24
149 2.00 1.00 0.00 5.00 8.00 0.24 8.24
151 2.00 1.00 0.00 5.00 8.00 0.24 8.24
152 2.00 1.00 0.00 5.00 8.00 0.24 8.24
153 2.00 1.00 0.00 5.00 8.00 0.24 8.24
154 2.00 1.00 0.00 5.00 8.00 0.24 8.24
155 2.00 1.00 0.00 5.00 8.00 0.24 8.24
156 2.00 1.00 0.00 5.00 8.00 0.24 8.24
157 2.00 1.00 0.00 5.00 8.00 0.24 8.24
158 2.00 1.00 0.00 5.00 8.00 0.24 8.24
159 2.00 1.00 0.00 5.00 8.00 0.24 8.24
161 2.00 1.00 0.00 5.00 8.00 0.24 8.24
23 2.00 1.00 0.00 0.00 3.00 0.24 3.24
24 2.00 1.00 0.00 0.00 3.00 0.24 3.24
162 2.00 1.00 0.00 9.00 12.00 0.24 12.24
163 2.00 1.00 0.00 9.00 12.00 0.24 12.24
25 2.00 1.00 0.00 0.00 3.00 0.24 3.24
26 2.00 1.00 0.00 0.00 3.00 0.24 3.24
164 2.00 1.00 0.00 9.00 12.00 0.24 12.24
27 2.00 1.00 0.00 0.00 3.00 0.24 3.24
165 2.00 1.00 0.00 9.00 12.00 0.24 12.24
166 2.00 0.00 9.00 0.00 11.00 0.24 11.24
167 2.00 0.00 9.00 0.00 11.00 0.24 11.24
28 2.00 1.00 0.00 0.00 3.00 0.24 3.24
168 2.00 1.00 0.00 9.00 12.00 0.24 12.24
29 2.00 1.00 0.00 0.00 3.00 0.24 3.24
169 2.00 1.00 0.00 9.00 12.00 0.24 12.24
170 2.00 1.00 0.00 9.00 12.00 0.24 12.24
30 2.00 1.00 0.00 0.00 3.00 0.24 3.24
171 2.00 1.00 0.00 9.00 12.00 0.24 12.24
172 2.00 1.00 0.00 9.00 12.00 0.24 12.24
173 2.00 1.00 0.00 9.00 12.00 0.24 12.24
174 2.00 1.00 0.00 12.00 15.00 0.24 15.24
175 2.00 1.00 0.00 12.00 15.00 0.24 15.24
177 2.00 1.00 0.00 12.00 15.00 0.24 15.24
178 2.00 0.00 9.00 0.00 11.00 0.24 11.24
179 2.00 1.00 0.00 12.00 15.00 0.24 15.24
EXHIBIT K-1
[RESERVED]
EXHIBIT K-2
FORM OF PURCHASE AGREEMENT II
[Under Separate Tab]
EXHIBIT K-3
FORM OF PURCHASE AGREEMENT III
[Under Separate Tab]
EXHIBIT K-4
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT IV
[UNDER SEPARATE TAB]
EXHIBIT K-5
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT V
[UNDER SEPARATE TAB]
EXHIBIT L
FORM OF INSPECTION REPORT
[Available from Master Servicer]
EXHIBIT M
FORM OF MONTHLY CERTIFICATEHOLDER REPORT
SUBSTANTIALLY SIMILAR TO THE INFORMATION
REPEATED IN THE FORM OF STATEMENT TO
CERTIFICATEHOLDERS IN THE
PROSPECTUS SUPPLEMENT
EXHIBIT N
FORM OF OPERATING STATEMENT ANALYSIS REPORT
[Available At CMSA Website version 2.0 dated 11/15/99]
EXHIBIT O
RESERVED
EXHIBIT P
RESERVED
EXHIBIT Q
RESERVED
EXHIBIT R
RESERVED
EXHIBIT S-1
FORM OF POWER OF ATTORNEY FOR MASTER SERVICER
RECORDING REQUESTED BY:
WELLS FARGO BANK, N.A.
AND WHEN RECORDED MAIL TO:
WELLS FARGO BANK, N.A.
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention:Commercial Mortgage Pass-
Through Certificates Series 2002-TOP6
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL
ASSOCIATION, as trustee for Bear Stearns Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2002-TOP6 ("Trustee"),
under that certain Pooling and Servicing Agreement dated as of March 1, 2002
(the "Pooling and Servicing Agreement"), does hereby nominate, constitute and
appoint WELLS FARGO BANK, NATIONAL ASSOCIATION, as Master Servicer under the
Pooling and Servicing Agreement ("Wells Fargo Bank"), as its true and lawful
attorney-in-fact for it and in its name, place, stead and for its use and
benefit:
To perform any and all acts which may be necessary or
appropriate to enable Wells Fargo Bank to service and administer the Mortgage
Loans (as defined in the Pooling and Servicing Agreement) in connection with the
performance by Wells Fargo Bank of its duties as Master Servicer under the
Pooling and Servicing Agreement, giving and granting unto Wells Fargo Bank full
power and authority to do and perform any and every act necessary, requisite, or
proper in connection with the foregoing and hereby ratifying, approving or
confirming all that Wells Fargo Bank shall lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this limited
power of attorney to be executed as of this day of , 2002.
--- ---------------
LASALLE BANK NATIONAL ASSOCIATION,
as trustee for Bear Stearns Commercial
Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates,
Series 2002-TOP6
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On before me,
--------------- ----------------------------------
Date Name and Title of Officer (i.e., Your
Name, Notary Public)
personally appeared
-----------------------------------------------------------
Name(s) of Document Signer(s)
-------------------------------------------------------------------------------
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
------------------------------
Signature of Notary
(Affix seal in the above blank space)
EXHIBIT S-2
FORM OF POWER OF ATTORNEY FOR SPECIAL SERVICER
RECORDING REQUESTED BY:
WELLS FARGO BANK, N.A.
AND WHEN RECORDED MAIL TO:
GMAC COMMERCIAL MORTGAGE CORPORATION
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention:Commercial Mortgage Pass-
Through Certificates Series 2002-TOP6
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL
ASSOCIATION, as trustee for Bear Stearns Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2002-TOP6 ("Trustee"),
under that certain Pooling and Servicing Agreement dated as of March 1, 2002
(the "Pooling and Servicing Agreement"), does hereby nominate, constitute and
appoint GMAC COMMERCIAL MORTGAGE CORPORATION, as Special Servicer under the
Pooling and Servicing Agreement ("GMAC"), as its true and lawful
attorney-in-fact for it and in its name, place, stead and for its use and
benefit:
To perform any and all acts which may be necessary or
appropriate to enable GMAC to service and administer the Mortgage Loans (as
defined in the Pooling and Servicing Agreement) in connection with the
performance by GMAC of its duties as Special Servicer under the Pooling and
Servicing Agreement, giving and granting unto GMAC full power and authority to
do and perform any and every act necessary, requisite, or proper in connection
with the foregoing and hereby ratifying, approving or confirming all that GMAC
shall lawfully do or cause to be done by virtue hereof.
S-2-1
IN WITNESS WHEREOF, the undersigned has caused this limited
power of attorney to be executed as of this day of , 2002.
--- --------------
LASALLE BANK NATIONAL ASSOCIATION,
as trustee for Bear Stearns Commercial
Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates,
Series 2002-TOP6
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
S-2-2
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On before me,
---------------- ----------------------------------
Date Name and Title of Officer (i.e., Your
Name, Notary Public)
personally appeared
---------------------------------------------------------
Name(s) of Document Signer(s)
-------------------------------------------------------------------------------
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
--------------------------------------------
Signature of Notary
(Affix seal in the above blank space)
s-2-3
EXHIBIT T
FORM OF DEBT SERVICE COVERAGE RATIO PROCEDURES
"Debt Service Coverage Ratios" generally means the ratio of
"Underwritable Cash Flow" estimated to be produced by the related Mortgaged
Property to the annualized amount of debt service payable under that Mortgage
Loan. "Underwritable Cash Flow" in each case is an estimate of stabilized cash
flow available for debt service. In general, it is the estimated stabilized
revenue derived from the use and operation of a Mortgaged Property (consisting
primarily of rental income) less the sum of (a) estimated stabilized operating
expenses (such as utilities, administrative expenses, repairs and maintenance,
management fees and advertising), (b) fixed expenses (such as insurance, real
estate taxes and, if applicable, ground lease payments) and (c) capital
expenditures and reserves for capital expenditures, including tenant improvement
costs and leasing commissions. Underwritable Cash Flow generally does not
reflect interest expenses and non-cash items such as depreciation and
amortization. In determining Underwritable Cash Flow for a Mortgaged Property,
the Master Servicer may rely on rent rolls and other generally unaudited
financial information provided by the respective borrowers and may estimate cash
flow taking into account historical financial statements, material changes in
the operating position of the Mortgaged Property, and estimated capital
expenditures, leasing commissions and tenant improvement reserves. The Master
Servicer may make certain changes to operating statements and operating
information obtained from the respective borrowers.
EXHIBIT U
[Form of Assignment and Assumption Submission to Special Servicer]
See Primary Servicing Agreement
EXHIBIT V
[Form of Additional Lien, Monetary Encumbrance and Mezzanine Financing
Submission Package to the Special Services]
See Primary Servicing Agreement
EXHIBIT W
RESTRICTED SERVICER REPORTS
[Available at CMSA Website version 2.0 dated 11/15/99]
EXHIBIT X
UNRESTRICTED SERVICER REPORTS
[Available at CMSA Website version 2.0 dated 11/15/99]
EXHIBIT Y
[Investor Certificate]
INVESTOR CERTIFICATION
Date:
Wells Fargo Bank Minnesota, N.A.
0000 Xxx Xxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Bear Stearns Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2002-TOP6
In accordance with the Pooling and Servicing Agreement, dated as of
March 1, 2002 (the "Agreement"), by and among Bear Stearns Commercial
Mortgage Securities Inc., as Depositor, Wells Fargo Bank, National
Association, as Master Servicer, GMAC Commercial Mortgage Corporation
as Special Servicer, ABN AMRO Bank N.V., as Fiscal Agent, LaSalle Bank
National Association, as Trustee, and Wells Fargo Bank Minnesota, N.A.
as Paying Agent and Certificate Registrar (the "Paying Agent"), with
respect to the above referenced certificates (the "Certificates"), the
undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner or prospective purchaser of the Class
__ Certificates.
2. The undersigned is requesting access to the Paying Agent's internet website
containing certain information (the "Information") and/or is requesting the
information identified on the schedule attached hereto (also, the
"Information") pursuant to the provisions of the Agreement.
3. In consideration of the Paying Agent's disclosure to the undersigned of the
Information, or access thereto, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in
making an evaluation in connection with purchasing the related
Certificates, from its accountants and attorneys, and otherwise from such
governmental or banking authorities or agencies to which the undersigned is
subject), and such Information will not, without the prior written consent
of the Paying Agent, be otherwise disclosed by the undersigned or by its
officers, directors, partners, employees, agents or representatives
(collectively, the "Representatives") in any manner whatsoever, in whole or
in part.
4. The undersigned will not use or disclose the Information in any manner
which could result in a violation of any provision of the Securities Act of
1933, as amended (the "Securities Act"), or the Securities Exchange Act of
1934, as amended, or would require registration of any Certificate pursuant
to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this agreement by
itself or any of its Representatives and shall indemnify the Depositor, the
Paying Agent and the Trust Fund for any loss, liability or expense incurred
thereby with respect to any such breach by the undersigned or any of its
Representatives.
6. Capitalized terms used but not defined herein shall have the respective
meanings assigned thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto
by its duly authorized officer, as of the day and year written above.
-------------------------------------------
Beneficial Owner or Prospective Purchaser
By:
----------------------------------------
Title:
-------------------------------------
Company:
-----------------------------------
Phone:
-------------------------------------
EXHIBIT Z
Form of Notice and Certification
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
FOR LOANS HAVING BALANCE OF (A) $20,000,000 OR LESS, OR (B) LESS THAN 5% OF
OUTSTANDING POOL BALANCE, WHICHEVER IS LESS
To: [Address]
Attn:
From: _____________________________________ , in its capacity
as Servicer (the "Servicer") under the Pooling and Servicing Agreement
dated as of _______________ (the "Pooling and Servicing Agreement"),
among the Servicer, __________________________ as Trustee, and others.
Date: ___________________, 20______
Re: _________________________________________________________.
Commercial Mortgage Pass-Through Certificates
Series ____________
Mortgage Loan (the "Mortgage Loan") identified by loan number ________ on
the Mortgage Loan Schedule attached to the Pooling and Servicing Agreement and
heretofore secured by the Mortgaged Properties identified on the Mortgage Loan
Schedule by the following names: ____________________
____________________
Reference is made to the Pooling and Servicing Agreement described above.
Capitalized terms used but not defined herein have the meanings assigned to such
terms in the Pooling and Servicing Agreement. [NOTE: ALL TERMS IN THIS
CERTIFICATION MUST BE CONFORMED TO TERMS USED IN THE POOLING AND SERVICING
AGREEMENT]
As Servicer under the Pooling and Servicing Agreement, we hereby:
1. NOTIFY YOU THAT THE MORTGAGOR HAS CONSUMMATED A
DEFEASANCE OF THE MORTGAGE LOAN PURSUANT TO THE TERMS
OF THE MORTGAGE LOAN, OF THE TYPE CHECKED BELOW:
____ a full defeasance of the payments scheduled to
be due in respect of the entire Principal
Balance of the Mortgage Loan; or
____ a partial defeasance of the payments scheduled
to be due in respect of a portion of the
Principal Balance of the
Mortgage Loan that represents ___% of the
entire Principal Balance of the Mortgage Loan
and, under the Mortgage, has an allocated loan
amount of $____________ or _______% of the
entire Principal Balance;
2. CERTIFY THAT EACH OF THE FOLLOWING IS TRUE, SUBJECT
TO THOSE EXCEPTIONS SET FORTH WITH EXPLANATORY NOTES ON
EXHIBIT A HERETO, WHICH EXCEPTIONS THE SERVICER HAS
DETERMINED, CONSISTENT WITH THE SERVICING STANDARD, WILL
HAVE NO MATERIAL ADVERSE EFFECT ON THE MORTGAGE LOAN OR THE
DEFEASANCE TRANSACTION:
A. THE MORTGAGE LOAN DOCUMENTS PERMIT THE
DEFEASANCE, AND THE TERMS AND CONDITIONS FOR DEFEASANCE
SPECIFIED THEREIN WERE SATISFIED IN ALL MATERIAL
RESPECTS IN COMPLETING THE DEFEASANCE.
B. THE DEFEASANCE WAS CONSUMMATED ON
__________, 20__.
C. THE DEFEASANCE COLLATERAL CONSISTS OF
SECURITIES THAT (I) CONSTITUTE "GOVERNMENT SECURITIES"
AS DEFINED IN SECTION 2(A)(16) OF THE INVESTMENT
COMPANY ACT OF 1940 AS AMENDED (15 U.S.C. 80A-1), (II)
ARE LISTED AS "QUALIFIED INVESTMENTS FOR `AAA'
FINANCINGS" UNDER PARAGRAPHS 1, 2 OR 3 OF "CASH FLOW
APPROACH" IN STANDARD & POOR'S PUBLIC FINANCE CRITERIA
2000, AS AMENDED TO THE DATE OF THE DEFEASANCE, (III)
ARE RATED `AAA' BY STANDARD & POOR'S, (IV) IF THEY
INCLUDE A PRINCIPAL OBLIGATION, THE PRINCIPAL DUE AT
MATURITY CANNOT VARY OR CHANGE, AND (V) ARE NOT SUBJECT
TO PREPAYMENT, CALL OR EARLY REDEMPTION. SUCH
SECURITIES HAVE THE CHARACTERISTICS SET FORTH BELOW:
CUSIP RATE MAT PAY DATES ISSUED
D. THE SERVICER RECEIVED AN OPINION OF COUNSEL
(FROM COUNSEL APPROVED BY SERVICER IN ACCORDANCE WITH
THE SERVICING STANDARD) THAT THE DEFEASANCE WILL NOT
RESULT IN AN ADVERSE REMIC EVENT.
E. THE SERVICER DETERMINED THAT THE DEFEASANCE
COLLATERAL WILL BE OWNED BY AN ENTITY (THE "DEFEASANCE
OBLIGOR") AS TO WHICH ONE OF THE STATEMENTS CHECKED
BELOW IS TRUE:
____ the related Mortgagor was a Single-Purpose
Entity (as defined in Standard & Poor's
Structured Finance Ratings Real Estate Finance
Criteria, as amended to the date of the
defeasance (the "S&P Criteria")) as of the date
of the defeasance, and after the defeasance
owns no assets other than the defeasance
collateral and real property securing Mortgage
Loans included in the pool.
____ the related Mortgagor designated a
Single-Purpose Entity (as defined in the S&P
Criteria) to own the defeasance collateral; or
____ the Servicer designated a Single-Purpose Entity
(as defined in the S&P Criteria) established
for the benefit of the Trust to own the
defeasance collateral.
F. THE SERVICER RECEIVED A BROKER OR SIMILAR
CONFIRMATION OF THE CREDIT, OR THE ACCOUNTANT'S LETTER
DESCRIBED BELOW CONTAINED STATEMENTS THAT IT REVIEWED A
BROKER OR SIMILAR CONFIRMATION OF THE CREDIT, OF THE
DEFEASANCE COLLATERAL TO AN ELIGIBLE ACCOUNT (AS
DEFINED IN THE S&P CRITERIA) IN THE NAME OF THE
DEFEASANCE OBLIGOR, WHICH ACCOUNT IS MAINTAINED AS A
SECURITIES ACCOUNT BY THE TRUSTEE ACTING AS A
SECURITIES INTERMEDIARY.
G. AS SECURITIES INTERMEDIARY, TRUSTEE IS
OBLIGATED TO MAKE THE SCHEDULED PAYMENTS ON THE
MORTGAGE LOAN FROM THE PROCEEDS OF THE DEFEASANCE
COLLATERAL DIRECTLY TO THE SERVICER'S COLLECTION
ACCOUNT IN THE AMOUNTS AND ON THE DATES SPECIFIED IN
THE MORTGAGE LOAN DOCUMENTS OR, IN A PARTIAL
DEFEASANCE, THE PORTION OF SUCH SCHEDULED PAYMENTS
ATTRIBUTED TO THE ALLOCATED LOAN AMOUNT FOR THE REAL
PROPERTY DEFEASED, INCREASED BY ANY DEFEASANCE PREMIUM
SPECIFIED IN THE MORTGAGE LOAN DOCUMENTS (THE
"SCHEDULED PAYMENTS").
H. THE SERVICER RECEIVED FROM THE MORTGAGOR
WRITTEN CONFIRMATION FROM A FIRM OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS, WHO WERE APPROVED BY
SERVICER IN ACCORDANCE WITH THE SERVICING STANDARD,
STATING THAT (I) REVENUES FROM PRINCIPAL AND INTEREST
PAYMENTS MADE ON THE DEFEASANCE COLLATERAL (WITHOUT
TAKING INTO ACCOUNT ANY EARNINGS ON REINVESTMENT OF
SUCH REVENUES) WILL BE SUFFICIENT TO TIMELY PAY EACH OF
THE SCHEDULED PAYMENTS AFTER THE DEFEASANCE INCLUDING
THE PAYMENT IN FULL OF THE MORTGAGE LOAN (OR THE
ALLOCATED PORTION THEREOF IN CONNECTION WITH A PARTIAL
DEFEASANCE) ON ITS MATURITY DATE (OR, IN THE CASE OF AN
ARD LOAN, ON ITS ANTICIPATED REPAYMENT DATE), (II) THE
REVENUES RECEIVED IN ANY MONTH FROM THE DEFEASANCE
COLLATERAL WILL BE APPLIED TO MAKE SCHEDULED PAYMENTS
WITHIN FOUR (4) MONTHS AFTER THE DATE OF RECEIPT, AND
(III) INTEREST INCOME FROM THE DEFEASANCE COLLATERAL TO
THE DEFEASANCE OBLIGOR IN ANY CALENDAR OR FISCAL YEAR
WILL NOT EXCEED SUCH DEFEASANCE OBLIGOR'S INTEREST
EXPENSE FOR THE MORTGAGE LOAN (OR THE ALLOCATED PORTION
THEREOF IN A PARTIAL DEFEASANCE) FOR SUCH YEAR.
I. THE SERVICER RECEIVED OPINIONS FROM COUNSEL,
WHO WERE APPROVED BY SERVICER IN ACCORDANCE WITH THE
SERVICING STANDARD, THAT (I) THE AGREEMENTS EXECUTED BY
THE MORTGAGOR AND/OR THE DEFEASANCE OBLIGOR IN
CONNECTION WITH THE DEFEASANCE ARE ENFORCEABLE AGAINST
THEM IN ACCORDANCE WITH THEIR TERMS, AND (II) THE
TRUSTEE WILL HAVE A PERFECTED, FIRST PRIORITY SECURITY
INTEREST IN THE DEFEASANCE COLLATERAL DESCRIBED ABOVE.
J. THE AGREEMENTS EXECUTED IN CONNECTION WITH THE
DEFEASANCE (I) PERMIT REINVESTMENT OF PROCEEDS OF THE
DEFEASANCE COLLATERAL ONLY IN PERMITTED INVESTMENTS (AS
DEFINED IN THE S&P CRITERIA), (II) PERMIT RELEASE OF
SURPLUS DEFEASANCE COLLATERAL AND EARNINGS ON
REINVESTMENT TO THE DEFEASANCE OBLIGOR OR THE MORTGAGOR
ONLY AFTER THE MORTGAGE LOAN HAS BEEN PAID IN FULL, IF
ANY SUCH RELEASE IS PERMITTED, (III) PROHIBIT ANY
SUBORDINATE LIENS AGAINST THE DEFEASANCE COLLATERAL,
AND (IV) PROVIDE FOR PAYMENT FROM SOURCES OTHER THAN
THE DEFEASANCE COLLATERAL OR OTHER ASSETS OF THE
DEFEASANCE OBLIGOR OF ALL FEES AND EXPENSES OF THE
SECURITIES INTERMEDIARY FOR ADMINISTERING THE
DEFEASANCE AND THE SECURITIES ACCOUNT AND ALL FEES AND
EXPENSES OF MAINTAINING THE EXISTENCE OF THE DEFEASANCE
OBLIGOR.
K. THE ENTIRE PRINCIPAL BALANCE OF THE MORTGAGE
LOAN AS OF THE DATE OF DEFEASANCE WAS $___________
[$5,000,000 OR LESS OR LESS THAN ONE PERCENT OF POOL
BALANCE, WHICHEVER IS LESS] WHICH IS LESS THAN 1% OF
THE AGGREGATE CERTIFICATE BALANCE OF THE CERTIFICATES
AS OF THE DATE OF THE MOST RECENT PAYING AGENT'S
MONTHLY CERTIFICATEHOLDER REPORT RECEIVED BY US (THE
"CURRENT REPORT").
L. THE DEFEASANCE DESCRIBED HEREIN, TOGETHER
WITH ALL PRIOR AND SIMULTANEOUS DEFEASANCES OF MORTGAGE
LOANS, BRINGS THE TOTAL OF ALL FULLY AND PARTIALLY
DEFEASED MORTGAGE LOANS TO $__________________, WHICH
IS _____% OF THE AGGREGATE CERTIFICATE BALANCE OF THE
CERTIFICATES AS OF THE DATE OF THE CURRENT REPORT.
3. CERTIFY THAT, IN ADDITION TO THE FOREGOING, SERVICER
HAS IMPOSED SUCH ADDITIONAL CONDITIONS TO THE DEFEASANCE,
SUBJECT TO THE LIMITATIONS IMPOSED BY THE MORTGAGE LOAN
DOCUMENTS, AS ARE CONSISTENT WITH THE SERVICING STANDARD.
4. CERTIFY THAT EXHIBIT B HERETO IS A LIST OF THE MATERIAL
AGREEMENTS, INSTRUMENTS, ORGANIZATIONAL DOCUMENTS FOR THE
DEFEASANCE OBLIGOR, AND OPINIONS OF COUNSEL AND
INDEPENDENT ACCOUNTANTS EXECUTED AND DELIVERED IN
CONNECTION WITH THE DEFEASANCE DESCRIBED ABOVE AND THAT
ORIGINALS OR COPIES OF SUCH AGREEMENTS, INSTRUMENTS AND
OPINIONS HAVE BEEN TRANSMITTED TO THE TRUSTEE FOR
PLACEMENT IN THE RELATED MORTGAGE FILE OR, TO THE EXTENT
NOT REQUIRED TO BE PART OF THE RELATED MORTGAGE FILE, ARE
IN THE POSSESSION OF THE SERVICER AS PART OF THE
SERVICER'S MORTGAGE FILE.
5. CERTIFY AND CONFIRM THAT THE DETERMINATIONS AND
CERTIFICATIONS DESCRIBED ABOVE WERE RENDERED IN ACCORDANCE
WITH THE SERVICING STANDARD SET FORTH IN, AND THE OTHER
APPLICABLE TERMS AND CONDITIONS OF, THE POOLING AND
SERVICING AGREEMENT.
6. CERTIFY THAT THE INDIVIDUAL UNDER WHOSE HAND THE
SERVICER HAS CAUSED THIS NOTICE AND CERTIFICATION TO BE
EXECUTED DID CONSTITUTE A SERVICING OFFICER AS OF THE DATE
OF THE DEFEASANCE DESCRIBED ABOVE.
7. AGREE TO PROVIDE COPIES OF ALL ITEMS LISTED IN
EXHIBIT B TO YOU UPON REQUEST.
IN WITNESS WHEREOF, the Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
SERVICER:
----------------------------
By:
----------------------------------
Name:
Title:
EXHIBIT AA
Form of Primary Servicing Agreement
(Wells Fargo)
[Available Upon Request]
SCHEDULE I
[RESERVED]
SCHEDULE II
WELLS FARGO LOAN SCHEDULE
BSCMSI 2001 TOP6 MORTGAGE LOAN SCHEDULE
WFB
-----------------------------------------------------------------------------------------------------------------------------------
AGGREGATE
LOAN CUT-OFF MORTGAGE MONTHLY NOTE
NO. SELLER PROPERTY NAME DATE BALANCE RATE PAYMENT DATE
-----------------------------------------------------------------------------------------------------------------------------------
2 WFB Coliseum Centre $73,000,000 6.780% $474,933.26 02/08/2002
19 WFB Best Buy Portfolio - Virginia Beach, Virginia (II) $4,832,683 7.490% $35,737.34 01/25/2002
20 WFB Best Buy Portfolio - Nashua, New Hampshire (II) $4,546,537 7.490% $33,621.32 01/25/2002
21 WFB Best Buy Portfolio - North Attleboro, Massachusetts (II) $4,133,216 7.490% $30,564.84 01/25/2002
22 WFB Best Buy Portfolio - Schaumburg, IL (II) $4,006,040 7.490% $29,624.38 01/25/2002
23 WFB Best Buy Portfolio - Arlington, Texas (II) $1,526,111 7.490% $11,285.48 01/25/2002
24 WFB Best Buy Portfolio - Fort Worth (Ridgemar), Texas (II) $1,526,111 7.490% $11,285.48 01/25/2002
25 WFB Best Buy Portfolio - Dallas (Duncanville), Texas (II) $1,462,522 7.490% $10,815.25 01/25/2002
26 WFB Best Buy Portfolio - Matteson, IL (II) $1,446,626 7.490% $10,697.70 01/25/2002
27 WFB Best Buy Portfolio - Houston (Willowbrook), Texas (II) $1,335,346 7.490% $9,874.80 01/25/2002
28 WFB Best Buy Portfolio - Beaumont, Texas (II) $1,239,964 7.490% $9,169.45 01/25/2002
29 WFB Best Buy Portfolio - Fort Collins, CO (II) $1,220,888 7.490% $9,028.38 01/25/2002
30 WFB Best Buy Portfolio - Albuquerque, New Mexico (II) $1,179,557 7.490% $8,722.74 01/25/2002
32 WFB Boca Park Retail Center $19,952,991 7.250% $136,435.26 11/23/2001
00 XXX Xxxxxxx Xxxxxxxxx Center (IV) $6,909,515 6.500% $51,834.10 11/12/2001
00 XXX Xxxxxx Xxxxxx Station (IV) $6,755,971 6.500% $50,682.22 11/12/2001
56 WFB Golden Springs Business Center (Building C-1) $10,395,315 6.680% $71,739.01 10/24/2001
78 WFB Cinemark 18 Theatres $6,070,845 9.270% $57,175.97 08/24/2000
81 WFB Ventura Pettit East Building $5,976,778 6.750% $41,454.69 10/23/2001
84 WFB Ladson Crossing Shopping Center $5,781,396 7.150% $39,173.59 10/09/2001
100 WFB Ticketmaster $4,216,096 6.750% $32,315.47 09/19/2001
000 XXX Xxxxxx Xxxxxxxx Xxxxxxxxx $3,979,824 6.920% $28,067.36 09/25/2001
000 XXX Xxxxxx Xxxxxx Shopping Center $3,969,954 7.250% $31,615.04 10/01/2001
110 WFB 0000 Xxxxxx Xxxx $3,581,727 6.875% $25,157.71 10/22/2001
113 WFB 000 X. Xxxxx Xxxx $3,491,062 6.830% $22,887.37 11/15/2001
115 WFB Chautauqua Apartments $3,286,428 6.360% $21,994.01 11/16/2001
122 WFB Byerly's Park Center $2,987,525 6.750% $19,457.94 09/05/2001
000 XXX Xxxxxxxx Center $2,629,361 6.950% $20,465.96 09/18/2001
129 WFB Chaparral Apartments $2,390,129 6.360% $15,995.65 11/09/2001
000 XXX Xxxxxx Xxxxxx $2,358,740 7.250% $28,176.25 10/30/2001
131 WFB West Fargo Warehouses $2,336,804 7.250% $18,573.84 11/14/2001
000 XXX Xxxxxxxxxx Apartments $2,288,095 6.750% $15,890.96 09/19/2001
133 WFB Nogg Chemical & Paper Co. $2,264,712 7.300% $21,060.72 08/31/2001
000 XXX Xxxxxxxx Xxxxxx Shopping Center $2,242,566 7.000% $14,969.31 09/07/2001
136 WFB Andover Property $2,164,594 7.250% $15,721.05 10/15/2001
000 XXX Xxxxxxx Xxxxxx $2,143,193 7.350% $19,931.64 10/05/2001
000 XXX Xxxxxx Xxxx Xxxxx $1,992,380 6.850% $13,944.78 10/22/2001
139 WFB Polo Center $1,988,875 7.490% $14,766.82 08/27/2001
000 XXX Xxxxxxxxx Apartments $1,986,586 7.520% $14,805.85 07/31/2001
000 XXX Xxxxxxxx Xxxx Xxxxxxx $1,984,763 6.750% $13,818.23 08/13/2001
000 XXX Xxxxxx Xxxxx Xxxxxxxx Xxxx $1,984,634 7.510% $14,792.83 07/17/2001
000 XXX Xxxx Xxxxxx $1,984,418 7.430% $14,688.88 07/27/2001
000 XXX X. Xxxxxxxx Xxxxxx $1,981,760 7.330% $15,904.61 08/29/2001
148 WFB San Remo Apartments $1,960,919 7.180% $13,345.47 07/30/2001
000 XXX Xxxxxxxx'x- Xxxxxxx $1,885,728 7.250% $15,017.14 10/05/2001
000 XXX Xxxxxxx Xxx $1,789,501 7.210% $12,964.17 08/22/2001
000 XXX Xxxxxxx Xxxxxxxxxx Xxxx $1,727,852 7.280% $12,610.49 08/10/2001
000 XXX Xxxxxx Xxxxxx $1,694,064 7.400% $12,452.48 10/05/2001
000 XXX XXXxXXXX Xxxxx, XX $1,690,924 7.730% $12,818.28 08/23/2001
000 XXX Xxxxxxxx Xxxxxxxxx $1,688,406 7.420% $12,474.52 08/22/2001
156 WFB Good Shepherd Shopping Center $1,688,386 7.410% $12,463.50 08/14/2001
157 WFB Superstores - Albuquerque $1,688,269 7.350% $12,397.45 08/15/2001
158 WFB Grocery Outlet Retail Center $1,686,939 7.510% $12,573.91 07/11/2001
159 WFB A-American Truxtun, Bakersfield $1,656,713 7.000% $11,767.87 09/18/2001
161 WFB 0000 Xxxxxxxxxx Xxxxx $1,594,065 7.020% $11,328.89 11/09/2001
162 WFB 0000 X. Xxxxxxxx Xxxxxx $1,496,094 6.730% $9,709.04 11/13/2001
000 XXX 00xx Xxxxxx Center $1,485,727 7.000% $13,482.42 11/01/2001
000 XXX Xxxxxxxxx Xxxxxxx $1,395,597 7.250% $9,550.47 09/21/2001
165 WFB Borrego Self Storage $1,318,405 7.000% $9,364.82 10/01/2001
000 XXX Xxxxx Xxxxxx Place $1,245,527 7.450% $8,697.42 08/22/2001
167 WFB Andrews Commercial Center $1,245,338 7.260% $8,535.68 08/16/2001
168 WFB Lok-Tite Self Storage $1,239,056 7.650% $10,184.88 09/06/2001
000 XXX Xxxxxxxxx Corner $1,217,003 7.680% $9,196.55 08/03/2001
000 XXX Xxxxxxxxxxx Xxxxx Self Storage $1,194,027 7.000% $8,481.35 09/27/2001
171 WFB Yates Commerce Associates $1,092,510 7.430% $8,078.88 08/03/2001
000 XXX Xxxxxx Xxxxx Xxxx Center $1,046,853 7.470% $7,334.14 07/25/2001
000 XXX Xxxxxxx Xxxxxxx $1,026,761 7.250% $7,026.42 10/04/2001
000 XXX Xxxx Xxxxxx $992,489 7.250% $7,903.76 10/02/2001
175 WFB Bank of the West $992,045 7.310% $7,266.77 07/13/2001
177 WFB Folsom Retail Plaza $845,933 7.250% $6,143.86 10/17/2001
000 XXX Xxx-Xxxx Xxxxxx $805,691 7.750% $6,118.16 08/23/2001
179 WFB Tulare Inn MHP $696,781 7.500% $5,172.94 10/01/2001
TOTAL: $263,620,241
------------------------------------------------------------------------------------------------------------------------------------
ORIG. PREPAYMENT DESCRIPTION
LOAN ORIG. TERM REM. TERM AMORT. LOCKOUT
NO. (MOS) (MOS) (MOS) SEASONING PERIOD DEF DEF/YM1 DEF/YM YM1 OPEN
------------------------------------------------------------------------------------------------------------------------------------
2 120 120 360 0 24 0 92 0 0 4
19 120 119 300 1 25 91 0 0 0 4
20 120 119 300 1 25 91 0 0 0 4
21 120 119 300 1 25 91 0 0 0 4
22 120 119 300 1 25 91 0 0 0 4
23 120 119 300 1 25 91 0 0 0 4
24 120 119 300 1 25 91 0 0 0 4
25 120 119 300 1 25 91 0 0 0 4
26 120 119 300 1 25 91 0 0 0 4
27 120 119 300 1 25 91 0 0 0 4
28 120 119 300 1 25 91 0 0 0 4
29 120 119 300 1 25 91 0 0 0 4
30 120 119 300 1 25 91 0 0 0 4
32 120 117 360 3 35 81 0 0 0 4
42 60 57 240 3 35 21 0 0 0 4
43 60 57 240 3 35 21 0 0 0 4
56 120 116 300 4 36 80 0 0 0 4
78 240 222 240 18 59 177 0 0 0 4
81 120 117 300 3 27 89 0 0 0 4
84 120 116 360 4 35 81 0 0 0 4
100 120 116 240 4 34 82 0 0 0 4
103 120 116 300 4 34 82 0 0 0 4
105 240 236 240 4 35 201 0 0 0 4
110 120 116 300 4 36 80 0 0 0 4
113 120 117 360 3 35 81 0 0 0 4
115 120 117 300 3 35 81 0 0 0 4
122 120 115 360 5 35 81 0 0 0 4
127 120 116 240 4 34 82 0 0 0 4
129 120 117 300 3 35 81 0 0 0 4
130 120 117 120 3 35 81 0 0 0 4
131 120 117 240 3 35 81 0 0 0 4
132 120 116 300 4 34 82 0 0 0 4
133 180 175 180 5 34 142 0 0 0 4
134 120 116 360 4 34 82 0 0 0 4
136 120 116 300 4 35 81 0 0 0 4
137 180 176 180 4 36 140 0 0 0 4
138 60 57 300 3 35 21 0 0 0 4
139 120 115 300 5 34 82 0 0 0 4
143 120 114 300 6 34 82 0 0 0 4
144 60 54 300 6 35 21 0 0 0 4
145 120 113 300 7 35 81 0 0 0 4
146 120 113 300 7 35 81 0 0 0 4
147 120 115 240 5 34 82 0 0 0 4
148 120 114 360 6 34 82 0 0 0 4
149 240 236 240 4 35 201 0 0 0 4
151 120 115 300 5 34 82 0 0 0 4
152 120 114 300 6 35 81 0 0 0 4
153 120 117 300 3 34 82 0 0 0 4
154 120 115 300 5 34 82 0 0 0 4
155 120 114 300 6 35 81 0 0 0 4
156 120 114 300 6 35 81 0 0 0 4
157 120 114 300 6 35 81 0 0 0 4
158 120 113 300 7 35 81 0 0 0 4
159 60 56 300 4 34 22 0 0 0 4
161 120 117 300 3 35 81 0 0 0 4
162 120 117 360 3 35 81 0 0 0 4
163 180 177 180 3 35 141 0 0 0 4
164 180 176 360 4 34 142 0 0 0 4
165 60 56 300 4 35 21 0 0 0 4
166 120 115 360 5 34 82 0 0 0 4
167 120 115 360 5 34 82 0 0 0 4
168 120 115 240 5 35 81 0 0 0 4
169 120 114 300 6 35 81 0 0 0 4
170 60 56 300 4 34 22 0 0 0 4
171 120 114 300 6 35 81 0 0 0 4
172 120 113 360 7 35 81 0 0 0 4
173 180 176 360 4 35 141 0 0 0 4
174 240 236 240 4 35 201 0 0 0 4
175 120 113 300 7 35 81 0 0 0 4
177 120 116 300 4 35 81 0 0 0 4
178 120 115 300 5 34 82 0 0 0 4
179 120 116 300 4 35 81 0 0 0 4
------------------------------------------------------------------------------------------------------------------------------------
MASTER PRIMARY MASTER EXCESS PRIMARY EXCESS SUBSERVICER PRIMARY TRUSTEE
LOAN YM ADMIN. COST SERV. FEE SERV. FEE SERV. FEE SERV. FEE SERV. FEE FEE
NO. FORMULA RATE (BPS) RATE (BPS) RATE (BPS) RATE (BPS) RATE (BPS) RATE (BPS) RATE (BPS)
------------------------------------------------------------------------------------------------------------------------------------
2 A 3.24 2.00 1.00 0.00 0.00 0.00 0.24
19 3.24 2.00 1.00 0.00 0.00 0.00 0.24
20 3.24 2.00 1.00 0.00 0.00 0.00 0.24
21 3.24 2.00 1.00 0.00 0.00 0.00 0.24
22 3.24 2.00 1.00 0.00 0.00 0.00 0.24
23 3.24 2.00 1.00 0.00 0.00 0.00 0.24
24 3.24 2.00 1.00 0.00 0.00 0.00 0.24
25 3.24 2.00 1.00 0.00 0.00 0.00 0.24
26 3.24 2.00 1.00 0.00 0.00 0.00 0.24
27 3.24 2.00 1.00 0.00 0.00 0.00 0.24
28 3.24 2.00 1.00 0.00 0.00 0.00 0.24
29 3.24 2.00 1.00 0.00 0.00 0.00 0.24
30 3.24 2.00 1.00 0.00 0.00 0.00 0.24
32 3.24 2.00 1.00 0.00 0.00 0.00 0.24
42 3.24 2.00 1.00 0.00 0.00 0.00 0.24
43 3.24 2.00 1.00 0.00 0.00 0.00 0.24
56 3.24 2.00 1.00 0.00 0.00 0.00 0.24
78 4.24 2.00 1.00 0.00 1.00 0.00 0.24
81 4.24 2.00 1.00 0.00 1.00 0.00 0.24
84 4.24 2.00 1.00 0.00 1.00 0.00 0.24
100 4.24 2.00 1.00 0.00 1.00 0.00 0.24
103 6.24 2.00 1.00 0.00 3.00 0.00 0.24
105 6.24 2.00 1.00 0.00 3.00 0.00 0.24
110 6.24 2.00 1.00 0.00 3.00 0.00 0.24
113 6.24 2.00 1.00 0.00 3.00 0.00 0.24
115 6.24 2.00 1.00 0.00 3.00 0.00 0.24
122 6.24 2.00 1.00 0.00 3.00 0.00 0.24
127 6.24 2.00 1.00 0.00 3.00 0.00 0.24
129 6.24 2.00 1.00 0.00 3.00 0.00 0.24
130 6.24 2.00 1.00 0.00 3.00 0.00 0.24
131 6.24 2.00 1.00 0.00 3.00 0.00 0.24
132 6.24 2.00 1.00 0.00 3.00 0.00 0.24
133 6.24 2.00 1.00 0.00 3.00 0.00 0.24
134 6.24 2.00 1.00 0.00 3.00 0.00 0.24
136 6.24 2.00 1.00 0.00 3.00 0.00 0.24
137 6.24 2.00 1.00 0.00 3.00 0.00 0.24
138 8.24 2.00 1.00 0.00 5.00 0.00 0.24
139 8.24 2.00 1.00 0.00 5.00 0.00 0.24
143 8.24 2.00 1.00 0.00 5.00 0.00 0.24
144 8.24 2.00 1.00 0.00 5.00 0.00 0.24
145 8.24 2.00 1.00 0.00 5.00 0.00 0.24
146 8.24 2.00 1.00 0.00 5.00 0.00 0.24
147 8.24 2.00 1.00 0.00 5.00 0.00 0.24
148 8.24 2.00 1.00 0.00 5.00 0.00 0.24
149 8.24 2.00 1.00 0.00 5.00 0.00 0.24
151 8.24 2.00 1.00 0.00 5.00 0.00 0.24
152 8.24 2.00 1.00 0.00 5.00 0.00 0.24
153 8.24 2.00 1.00 0.00 5.00 0.00 0.24
154 8.24 2.00 1.00 0.00 5.00 0.00 0.24
155 8.24 2.00 1.00 0.00 5.00 0.00 0.24
156 8.24 2.00 1.00 0.00 5.00 0.00 0.24
157 8.24 2.00 1.00 0.00 5.00 0.00 0.24
158 8.24 2.00 1.00 0.00 5.00 0.00 0.24
159 8.24 2.00 1.00 0.00 5.00 0.00 0.24
161 8.24 2.00 1.00 0.00 5.00 0.00 0.24
162 12.24 2.00 1.00 0.00 9.00 0.00 0.24
163 12.24 2.00 1.00 0.00 9.00 0.00 0.24
164 12.24 2.00 1.00 0.00 9.00 0.00 0.24
165 12.24 2.00 1.00 0.00 9.00 0.00 0.24
166 11.24 2.00 0.00 0.00 0.00 9.00 0.24
167 11.24 2.00 0.00 0.00 0.00 9.00 0.24
168 12.24 2.00 1.00 0.00 9.00 0.00 0.24
169 12.24 2.00 1.00 0.00 9.00 0.00 0.24
170 12.24 2.00 1.00 0.00 9.00 0.00 0.24
171 12.24 2.00 1.00 0.00 9.00 0.00 0.24
172 12.24 2.00 1.00 0.00 9.00 0.00 0.24
173 12.24 2.00 1.00 0.00 9.00 0.00 0.24
174 15.24 2.00 1.00 0.00 12.00 0.00 0.24
175 15.24 2.00 1.00 0.00 12.00 0.00 0.24
177 15.24 2.00 1.00 0.00 12.00 0.00 0.24
178 11.24 2.00 0.00 0.00 0.00 9.00 0.24
179 15.24 2.00 1.00 0.00 12.00 0.00 0.24
SCHEDULE III
PRINCIPAL LOAN SCHEDULE
BSCMSI 2001 TOP6 MORTGAGE LOAN SCHEDULE
PCF
-----------------------------------------------------------------------------------------------------------------------------------
AGGREGATE
LOAN CUT-OFF MORTGAGE MONTHLY NOTE
NO. SELLER PROPERTY NAME DATE BALANCE RATE PAYMENT DATE
-----------------------------------------------------------------------------------------------------------------------------------
31 PCF Broadcom Corporation $24,872,605 6.850% $174,309.80 10/12/2001
35 PCF Blackwell II $16,949,435 7.530% $119,215.89 10/26/2001
00 XXX Xxxxxxxxx Xxxxxx $15,901,269 6.940% $105,804.45 06/18/2001
37 PCF 000 Xxxxxxx Xxxxxxxxx $15,759,759 7.780% $121,167.92 12/15/2000
38 PCF New Haven At The Park Apartments $14,500,000 6.480% $79,387.50 11/02/2001
00 XXX Xxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx $11,000,000 5.960% $54,633.33 11/01/2001
55 PCF Industrial Building - Moonachie $10,402,257 8.030% $77,265.00 11/22/2000
57 PCF Shady Grove Medical Village II $10,374,214 6.980% $69,051.82 11/28/2001
00 XXX XxxxxXxxx Xxxxxxx Xxxxxxxx Xxxxxx $9,566,951 6.790% $62,520.88 10/15/2001
60 PCF Lowe's Shopping Center $9,312,996 7.050% $62,386.34 12/13/2001
62 PCF Marco Town Center $8,974,977 6.700% $61,898.17 12/14/2001
63 PCF Kirkman Oaks Shopping Center $8,819,533 6.790% $57,636.44 10/15/2001
64 PCF Time Customer Service Office - Service Facilities $8,484,206 6.930% $56,151.68 12/18/2001
65 PCF Lowe's Home Center $8,163,280 7.460% $57,292.24 03/21/2001
67 PCF Vienna Square Shopping Center $7,979,929 6.920% $52,795.07 11/14/2001
68 PCF Lowe's Home Improvement Store $7,462,293 7.350% $51,672.91 06/19/2001
00 XXX Xxxxx Xxxxxx Xxxx Center $7,375,998 7.050% $49,695.82 05/07/2001
00 XXX Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxx $7,151,379 6.560% $62,957.46 12/17/2001
71 PCF Sawgrass Concourse (VI) $4,021,230 6.010% $20,139.66 12/12/2001
72 PCF Spectrum Office Park (VI) $3,088,770 6.010% $15,469.59 12/12/2001
00 XXX 00 Xxxxxx Xxxxx $6,477,448 6.750% $42,158.88 10/17/2001
74 PCF American Airlines Building $6,300,000 7.220% $38,431.46 08/27/2001
75 PCF 000/000 Xxxxxxx Xxxxxx $6,237,303 6.380% $39,012.31 12/19/2001
77 PCF Time Customer Service - Distribution Warehouse $6,138,480 6.880% $40,421.67 12/18/2001
79 PCF Peachtree Corners Distribution Center $6,000,000 6.920% $34,600.00 10/05/2001
80 PCF One Presidential Boulevard $5,979,505 6.830% $39,235.49 10/29/2001
83 PCF RAZ Imports $5,829,604 7.410% $42,889.10 10/26/2001
85 PCF Birchview Garden Apartments $5,694,293 5.970% $34,064.52 01/04/2002
86 PCF Canning Shaws Plaza $5,490,515 6.320% $36,520.16 01/18/2002
87 PCF TASQ Technology Building $5,487,981 6.740% $40,850.75 01/04/2002
88 PCF Shoppes at Packway $5,390,031 6.970% $35,817.60 12/18/2001
89 PCF Home Depot Distribution Center $5,339,530 6.610% $34,203.59 12/13/2001
90 PCF Cardinal Restaurant Supply $5,069,136 6.990% $36,013.21 09/21/2001
95 PCF Broadway Tech Center $4,791,081 6.930% $31,709.18 12/13/2001
96 PCF McKee Commercial Center $4,556,442 6.970% $35,387.59 12/04/2001
00 XXX Xxxx Xxxxxx Xxxxxx Xxxxxxxx $4,539,263 7.230% $30,977.32 11/14/2001
99 PCF Staples & Dollar Tree $4,419,490 6.670% $28,465.55 01/10/2002
000 XXX Xxxxxxxx Xxxxxxxx Xxxxxx $4,000,000 6.770% $22,880.09 11/02/2001
102 PCF SableOaks $3,996,109 6.120% $24,291.49 01/11/2002
000 XXX Xxxx Xx. Charles $3,937,280 7.130% $26,625.21 10/29/2001
000 XXX Xxxxxx Xxxxx Apartments $3,665,241 6.630% $23,543.58 11/20/2001
109 PCF 530 and 000 Xxxx Xxxxxxx Xxxxxx $3,642,549 6.350% $22,711.60 12/18/2001
111 PCF Morningstar Self Storage $3,541,284 7.030% $23,689.81 11/21/2001
112 PCF Great Western V $3,493,380 6.820% $22,864.03 12/05/2001
114 PCF Portion of Reuten Corporate Park $3,399,674 7.250% $27,267.97 06/12/2001
118 PCF Walgreens - Lithonia $3,044,486 7.100% $20,496.97 11/27/2001
119 PCF Huntington Woods Apartments $3,041,774 6.550% $19,378.48 11/08/2001
000 XXX Xxxxxx Xxxxxxx Plaza $2,994,335 6.830% $19,617.74 12/18/2001
000 XXX Xxxxxxxxx - Xxxxxxxx Xxxxx $2,942,955 7.170% $19,964.38 11/01/2001
000 XXX Xxxxxxxx Xxxxx Apartments $2,792,680 6.710% $18,086.36 11/16/2001
000 XXX Xxxxxxxxx Xxxxxx Xxxxxxxx $2,720,089 7.120% $18,349.63 11/30/2001
126 PCF Walgreens - Mobile $2,656,702 7.300% $18,270.47 10/22/2001
000 XXX Xxxxxxxx-Xxxxxx $2,470,625 7.240% $16,867.08 12/19/2001
135 PCF Brighton Walgreens $2,191,418 7.330% $17,495.07 12/19/2001
150 PCF 125 Asia Place $1,794,192 7.120% $12,120.86 10/16/2001
TOTAL: $360,225,958
------------------------------------------------------------------------------------------------------------------------------------
ORIG. PREPAYMENT DESCRIPTION
LOAN ORIG. TERM REM. TERM AMORT. LOCKOUT
NO. (MOS) (MOS) (MOS) SEASONING PERIOD DEF DEF/YM1 DEF/YM YM1 OPEN
------------------------------------------------------------------------------------------------------------------------------------
31 120 116 300 4 28 0 88 0 0 4
35 132 128 360 4 28 100 0 0 0 4
36 120 112 360 8 32 84 0 0 0 4
37 120 106 300 14 38 78 0 0 0 4
38 120 117 360 3 27 89 0 0 0 4
54 84 81 IO 3 27 0 53 0 0 4
55 120 105 360 15 39 77 0 0 0 4
57 120 117 360 3 27 89 0 0 0 4
59 120 116 360 4 28 88 0 0 0 4
60 120 118 360 2 26 90 0 0 0 4
62 120 118 300 2 26 90 0 0 0 4
63 120 116 360 4 28 88 0 0 0 4
64 103 101 360 2 26 73 0 0 0 4
65 120 109 360 11 0 0 116 0 0 4
67 120 117 360 3 27 89 0 0 0 4
68 120 113 360 7 31 85 0 0 0 4
69 120 111 360 9 33 83 0 0 0 4
70 180 178 180 2 26 0 150 0 0 4
71 120 118 IO 2 26 0 90 0 0 4
72 120 118 IO 2 26 0 90 0 0 4
73 120 116 360 4 28 88 0 0 0 4
74 108 102 360 6 30 0 65 0 0 13
75 120 118 360 2 26 90 0 0 0 4
77 103 101 360 2 26 73 0 0 0 4
79 120 116 IO 4 28 0 79 9 0 4
80 120 116 360 4 28 0 0 0 88 4
83 120 117 300 3 27 89 0 0 0 4
85 120 119 360 1 25 91 0 0 0 4
86 120 119 300 1 25 0 91 0 0 4
87 120 119 252 1 25 91 0 0 0 4
88 120 118 360 2 26 90 0 0 0 4
89 120 118 360 2 26 90 0 0 0 4
90 132 127 300 5 29 99 0 0 0 4
95 120 118 360 2 26 90 0 0 0 4
96 240 238 240 2 26 210 0 0 0 4
97 120 117 360 3 27 89 0 0 0 4
99 120 119 360 1 25 91 0 0 0 4
101 120 117 IO 3 27 89 0 0 0 4
102 120 119 360 1 25 0 91 0 0 4
106 120 116 360 4 28 88 0 0 0 4
108 120 117 360 3 27 89 0 0 0 4
109 120 118 360 2 26 90 0 0 0 4
111 120 117 360 3 27 89 0 0 0 4
112 120 118 360 2 0 0 0 0 116 4
114 120 112 240 8 32 84 0 0 0 4
118 120 118 360 2 26 90 0 0 0 4
119 120 117 360 3 27 0 89 0 0 4
121 120 118 360 2 26 90 0 0 0 4
123 120 117 360 3 27 89 0 0 0 4
124 120 117 360 3 27 89 0 0 0 4
125 120 118 360 2 26 90 0 0 0 4
126 144 140 360 4 28 112 0 0 0 4
128 120 118 360 2 26 90 0 0 0 4
135 240 238 240 2 26 210 0 0 0 4
150 120 116 360 4 28 88 0 0 0 4
------------------------------------------------------------------------------------------------------------------------------------
MASTER PRIMARY MASTER EXCESS PRIMARY EXCESS SUBSERVICER PRIMARY TRUSTEE
LOAN YM ADMIN. COST SERV. FEE SERV. FEE SERV. FEE SERV. FEE SERV. FEE FEE
NO. FORMULA RATE (BPS) RATE (BPS) RATE (BPS) RATE (BPS) RATE (BPS) RATE (BPS) RATE (BPS)
------------------------------------------------------------------------------------------------------------------------------------
31 B 3.24 2.00 1.00 0.00 0.00 0.00 0.24
35 3.24 2.00 1.00 0.00 0.00 0.00 0.24
36 3.24 2.00 1.00 0.00 0.00 0.00 0.24
37 3.24 2.00 1.00 0.00 0.00 0.00 0.24
38 3.24 2.00 1.00 0.00 0.00 0.00 0.24
54 B 3.24 2.00 1.00 0.00 0.00 0.00 0.24
55 3.24 2.00 1.00 0.00 0.00 0.00 0.24
57 3.24 2.00 1.00 0.00 0.00 0.00 0.24
59 3.24 2.00 1.00 0.00 0.00 0.00 0.24
60 3.24 2.00 1.00 0.00 0.00 0.00 0.24
62 3.24 2.00 1.00 0.00 0.00 0.00 0.24
63 3.24 2.00 1.00 0.00 0.00 0.00 0.24
64 3.24 2.00 1.00 0.00 0.00 0.00 0.24
65 B 3.24 2.00 1.00 0.00 0.00 0.00 0.24
67 3.24 2.00 1.00 0.00 0.00 0.00 0.24
68 3.24 2.00 1.00 0.00 0.00 0.00 0.24
69 3.24 2.00 1.00 0.00 0.00 0.00 0.24
70 B 3.24 2.00 1.00 0.00 0.00 0.00 0.24
71 B 3.24 2.00 1.00 0.00 0.00 0.00 0.24
72 B 3.24 2.00 1.00 0.00 0.00 0.00 0.24
73 3.24 2.00 1.00 0.00 0.00 0.00 0.24
74 B 3.24 2.00 1.00 0.00 0.00 0.00 0.24
75 3.24 2.00 1.00 0.00 0.00 0.00 0.24
77 3.24 2.00 1.00 0.00 0.00 0.00 0.24
79 B 3.24 2.00 1.00 0.00 0.00 0.00 0.24
80 B 3.24 2.00 1.00 0.00 0.00 0.00 0.24
83 3.24 2.00 1.00 0.00 0.00 0.00 0.24
85 3.24 2.00 1.00 0.00 0.00 0.00 0.24
86 B 3.24 2.00 1.00 0.00 0.00 0.00 0.24
87 3.24 2.00 1.00 0.00 0.00 0.00 0.24
88 3.24 2.00 1.00 0.00 0.00 0.00 0.24
89 3.24 2.00 1.00 0.00 0.00 0.00 0.24
90 3.24 2.00 1.00 0.00 0.00 0.00 0.24
95 3.24 2.00 1.00 0.00 0.00 0.00 0.24
96 3.24 2.00 1.00 0.00 0.00 0.00 0.24
97 3.24 2.00 1.00 0.00 0.00 0.00 0.24
99 3.24 2.00 1.00 0.00 0.00 0.00 0.24
101 3.24 2.00 1.00 0.00 0.00 0.00 0.24
102 B 3.24 2.00 1.00 0.00 0.00 0.00 0.24
106 3.24 2.00 1.00 0.00 0.00 0.00 0.24
108 3.24 2.00 1.00 0.00 0.00 0.00 0.24
109 3.24 2.00 1.00 0.00 0.00 0.00 0.24
111 3.24 2.00 1.00 0.00 0.00 0.00 0.24
112 B 3.24 2.00 1.00 0.00 0.00 0.00 0.24
114 3.24 2.00 1.00 0.00 0.00 0.00 0.24
118 3.24 2.00 1.00 0.00 0.00 0.00 0.24
119 B 3.24 2.00 1.00 0.00 0.00 0.00 0.24
121 3.24 2.00 1.00 0.00 0.00 0.00 0.24
123 3.24 2.00 1.00 0.00 0.00 0.00 0.24
124 3.24 2.00 1.00 0.00 0.00 0.00 0.24
125 3.24 2.00 1.00 0.00 0.00 0.00 0.24
126 3.24 2.00 1.00 0.00 0.00 0.00 0.24
128 3.24 2.00 1.00 0.00 0.00 0.00 0.24
135 3.24 2.00 1.00 0.00 0.00 0.00 0.24
150 3.24 2.00 1.00 0.00 0.00 0.00 0.24
SCHEDULE IV
BEAR STEARNS FUNDING LOAN SCHEDULE
BSCMSI 2001 TOP6 MORTGAGE LOAN SCHEDULE
BSFI
-----------------------------------------------------------------------------------------------------------------------------------
AGGREGATE
LOAN CUT-OFF MORTGAGE MONTHLY NOTE
NO. SELLER PROPERTY NAME DATE BALANCE RATE PAYMENT DATE
-----------------------------------------------------------------------------------------------------------------------------------
1 BSFI Regent Court $86,451,522 7.390% $717,622.78 12/01/2001
33 BSFI Xxxxxxx Xxxx Plaza $18,300,000 6.420% $97,905.00 12/06/2001
34 BSFI 000 Xxx Xxxxxx $17,805,000 7.720% $167,288.33 03/01/2002
00 XXXX Xxxxxxx Xxxxx $11,300,000 6.475% $60,972.92 01/22/2002
58 BSFI 00 Xxxxxx Xxxxxx $9,831,399 6.830% $64,411.59 12/27/2001
61 BSFI Middletown Shopping Center $8,976,560 7.180% $64,647.29 12/28/2001
66 BSFI Aurora Commons $8,000,000 6.600% $44,000.00 02/11/2002
76 BSFI Big Y Supermarket $6,156,988 6.220% $53,058.90 12/21/2001
82 BSFI Aborn Square Shopping Center $5,893,505 8.185% $44,055.41 01/31/2002
00 XXXX Xxxxxxxx Xxxxxx Xxxx $5,053,218 7.600% $36,009.81 01/17/2001
00 XXXX Xxxxxx Xxxx Shopping Center $4,938,189 7.825% $37,632.84 12/31/2001
104 BSFI Verizon Communications - Manhattan $3,974,511 6.920% $35,774.46 12/21/2001
107 BSFI Aberdeen Square Shopping Center $3,670,000 6.250% $19,114.58 12/10/2001
000 XXXX Xxxxxxxxx Xxxxxx $3,191,940 6.900% $21,075.20 11/13/2001
117 BSFI Hunter's Ridge Apartments $3,087,466 6.470% $20,873.35 11/02/2001
120 BSFI Autumnwood Apartments $3,012,769 6.470% $20,368.35 11/02/2001
140 XXXX 00 Xxxxxxx Xxxxxx (VII) $1,036,959 6.780% $6,752.16 01/24/2002
141 XXXX 00 Xx. Xxxxxxxx Xx. & 000 X. Xxxx Xxxxxx (VII) $951,338 6.780% $6,194.65 01/24/2002
142 BSFI Verizon Communications - Brooklyn $1,987,343 7.000% $17,976.57 12/21/2001
160 BSFI 0000 Xxxxx Xxxx. West $1,597,592 7.920% $12,264.39 01/25/2002
TOTAL: $205,216,300
------------------------------------------------------------------------------------------------------------------------------------
ORIG. PREPAYMENT DESCRIPTION
LOAN ORIG. TERM REM. TERM AMORT. LOCKOUT
NO. (MOS) (MOS) (MOS) SEASONING PERIOD DEF DEF/YM1 DEF/YM YM1 OPEN
------------------------------------------------------------------------------------------------------------------------------------
1 180 177 180 3 27 152 0 0 0 1
33 84 82 IO 2 35 0 0 0 46 3
34 180 180 180 0 36 143 0 0 0 1
53 84 83 IO 1 35 0 0 0 46 3
58 120 118 360 2 47 72 0 0 0 1
61 84 82 300 2 47 33 0 0 0 4
66 84 84 IO 0 35 0 0 0 47 2
76 180 178 180 2 26 153 0 0 0 1
82 120 119 360 1 47 72 0 0 0 1
91 120 107 360 13 47 72 0 0 0 1
92 120 118 300 2 47 72 0 0 0 1
104 180 178 180 2 47 132 0 0 0 1
107 61 59 IO 2 35 0 0 0 24 2
116 120 117 360 3 47 72 0 0 0 1
117 120 117 300 3 47 70 0 0 0 3
120 120 117 300 3 47 70 0 0 0 3
140 60 59 360 1 47 12 0 0 0 1
141 60 59 360 1 47 12 0 0 0 1
142 180 178 180 2 47 132 0 0 0 1
160 120 119 300 1 47 72 0 0 0 1
-----------------------------------------------------------------------------------------------------------------------------------
MASTER PRIMARY MASTER EXCESS PRIMARY EXCESS SUBSERVICER PRIMARY TRUSTEE
LOAN YM ADMIN. COST SERV. FEE SERV. FEE SERV. FEE SERV. FEE SERV. FEE FEE
NO. FORMULA RATE (BPS) RATE (BPS) RATE (BPS) RATE (BPS) RATE (BPS) RATE (BPS) RATE (BPS)
-----------------------------------------------------------------------------------------------------------------------------------
1 3.24 2.00 1.00 0.00 0.00 0.00 0.24
33 C 3.24 2.00 1.00 0.00 0.00 0.00 0.24
34 3.24 2.00 1.00 0.00 0.00 0.00 0.24
53 C 3.24 2.00 1.00 0.00 0.00 0.00 0.24
58 3.24 2.00 1.00 0.00 0.00 0.00 0.24
61 6.24 2.00 4.00 0.00 0.00 0.00 0.24
66 D 6.24 2.00 4.00 0.00 0.00 0.00 0.24
76 3.24 2.00 1.00 0.00 0.00 0.00 0.24
82 3.24 2.00 1.00 0.00 0.00 0.00 0.24
91 3.24 2.00 1.00 0.00 0.00 0.00 0.24
92 6.24 2.00 1.00 3.00 0.00 0.00 0.24
104 3.24 2.00 1.00 0.00 0.00 0.00 0.24
107 D 3.24 2.00 1.00 0.00 0.00 0.00 0.24
116 13.24 2.00 11.00 0.00 0.00 0.00 0.24
117 6.24 2.00 4.00 0.00 0.00 0.00 0.24
120 6.24 2.00 4.00 0.00 0.00 0.00 0.24
140 3.24 2.00 1.00 0.00 0.00 0.00 0.24
141 3.24 2.00 1.00 0.00 0.00 0.00 0.24
142 3.24 2.00 1.00 0.00 0.00 0.00 0.24
160 3.24 2.00 1.00 0.00 0.00 0.00 0.24
SCHEDULE V
XXXXXX XXXXXXX XXXX XXXXXX MORTGAGE CAPITAL LOAN SCHEDULE
BSCMSI 2001 TOP6 MORTGAGE LOAN SCHEDULE
MSDWMC
-----------------------------------------------------------------------------------------------------------------------------------
AGGREGATE
LOAN CUT-OFF MORTGAGE MONTHLY NOTE
NO. SELLER PROPERTY NAME DATE BALANCE RATE PAYMENT DATE
-----------------------------------------------------------------------------------------------------------------------------------
3 MSDWMC Bank One Center Office $64,500,000 7.330% $443,509.00 02/11/2002
0 XXXXXX Xxxxxxx Xxxx Xxxx $53,250,000 7.610% $337,693.75 01/02/2002
0 XXXXXX Xxxx Xxxx Xxxx $36,934,701 7.250% $252,405.22 12/06/2001
6 MSDWMC Nortel Networks $29,947,896 7.350% $206,691.63 12/20/2001
7 MSDWMC PETsMART Portfolio - Braintree (I) $4,053,773 7.700% $28,964.02 12/01/2001
8 MSDWMC PETsMART Portfolio - Boca Raton (I) $3,430,116 7.700% $24,508.01 12/01/2001
9 MSDWMC PETsMART Portfolio - Southlake (I) $3,118,287 7.700% $22,280.01 12/01/2001
00 XXXXXX XXXxXXXX Xxxxxxxxx - Xxxxxxxx Xxxxxxx (X) $3,055,921 7.700% $21,834.40 12/01/2001
00 XXXXXX XXXxXXXX Xxxxxxxxx - Xxxxxxxx (X) $2,681,727 7.700% $19,160.80 12/01/2001
12 MSDWMC PETsMART Portfolio - Plantation (I) $2,619,361 7.700% $18,715.21 12/01/2001
13 MSDWMC PETsMART Portfolio - Dallas (I) $2,432,264 7.700% $17,378.40 12/01/2001
00 XXXXXX XXXxXXXX Xxxxxxxxx - Xxxx Xxxx (X) $2,245,167 7.700% $16,041.60 12/01/2001
15 MSDWMC PETsMART Portfolio - Lake Mary (I) $1,870,972 7.700% $13,368.00 12/01/2001
16 MSDWMC PETsMART Portfolio - Flint (I) $1,808,607 7.700% $12,922.40 12/01/2001
17 MSDWMC PETsMART Portfolio - Fridley (I) $1,496,778 7.700% $10,694.40 12/01/2001
00 XXXXXX XXXxXXXX Xxxxxxxxx - Xxxxxxxxxxx (X) $997,852 7.700% $7,129.60 12/01/2001
00 XXXXXX Xxxxxx Xxxxxxxxxx Xxxxxxxxx - Xxxxx Xxxxxxxx (XXX) $7,058,371 7.250% $48,263.97 12/01/2001
40 MSDWMC Atrium Industrial Portfolio - Texas (III) $4,988,248 7.250% $34,108.82 12/01/2001
00 XXXXXX Xxxxxx Xxxxxxxxxx Xxxxxxxxx - Xxxxxxxxxxxx (XXX) $1,920,475 7.250% $13,131.89 12/01/2001
44 MSDWMC Hide Away - Pine Ridge (A) $5,201,764 7.370% $38,098.50 12/14/2001
45 MSDWMC Hide Away - Skyway (A) $3,790,356 7.370% $27,761.13 12/14/2001
46 MSDWMC Hide Away - 32nd Street (A) $2,593,401 7.370% $18,994.46 12/14/2001
47 MSDWMC Hide Away - Ellenton (A) $1,351,561 7.370% $9,899.03 12/14/2001
00 XXXXXX Xxxxx - Xxxxxxx, XX $12,814,551 7.560% $122,908.68 07/17/2001
00 XXXXXX Xxxxxx Xxxxxxxxx Xxxxxxxx #0 (V) $6,700,514 7.540% $47,114.01 12/20/2001
50 MSDWMC Gerber Portfolio Building #3 (V) $3,503,938 7.540% $24,637.60 12/20/2001
51 MSDWMC Gerber Portfolio Building #1 (V) $2,274,486 7.540% $15,992.83 12/20/2001
52 MSDWMC Pinecrest Plaza $11,821,307 7.100% $79,635.79 11/09/2001
93 MSDWMC Pateley Portfolio: Pitney-Bowes - Stamford, CT (B) $2,782,919 7.450% $30,348.43 08/01/2001
94 MSDWMC Pateley Portfolio: Pitney-Bowes - Newtown, CT (B) $2,075,813 7.450% $22,854.99 08/01/2001
98 MSDWMC Brentwood Shopping Center $4,485,162 7.010% $29,968.84 10/23/2001
000 XXXXXX Xxxxxxxx Xxxxxx Xxxxxxxxxx - Xxxx Xxxx Xxxx, Xxxx $923,394 7.450% $14,227.31 08/01/2001
TOTAL: $288,729,681
------------------------------------------------------------------------------------------------------------------------------------
ORIG. PREPAYMENT DESCRIPTION
LOAN ORIG. TERM REM. TERM AMORT. LOCKOUT
NO. (MOS) (MOS) (MOS) SEASONING PERIOD DEF DEF/YM1 DEF/YM YM1 OPEN
------------------------------------------------------------------------------------------------------------------------------------
3 120 120 360 0 24 92 0 0 0 4
4 120 119 336 1 25 91 0 0 0 4
5 120 118 360 2 26 90 0 0 0 4
6 120 118 360 2 26 90 0 0 0 4
7 120 117 360 3 27 89 0 0 0 4
8 120 117 360 3 27 89 0 0 0 4
9 120 117 360 3 27 89 0 0 0 4
10 120 117 360 3 27 89 0 0 0 4
11 120 117 360 3 27 89 0 0 0 4
12 120 117 360 3 27 89 0 0 0 4
13 120 117 360 3 27 89 0 0 0 4
14 120 117 360 3 27 89 0 0 0 4
15 120 117 360 3 27 89 0 0 0 4
16 120 117 360 3 27 89 0 0 0 4
17 120 117 360 3 27 89 0 0 0 4
18 120 117 360 3 27 89 0 0 0 4
39 120 117 360 3 27 89 0 0 0 4
40 120 117 360 3 27 89 0 0 0 4
41 120 117 360 3 27 89 0 0 0 4
44 60 58 300 2 26 29 0 0 0 5
45 60 58 300 2 26 29 0 0 0 5
46 60 58 300 2 26 29 0 0 0 5
47 60 58 300 2 26 29 0 0 0 5
48 114 107 376 7 31 76 0 0 0 7
49 120 118 360 2 26 90 0 0 0 4
50 120 118 360 2 26 90 0 0 0 4
51 120 118 360 2 26 90 0 0 0 4
52 120 117 360 3 27 89 0 0 0 4
93 120 113 389 7 31 82 0 0 0 7
94 120 113 389 7 31 82 0 0 0 7
98 120 116 360 4 28 88 0 0 0 4
176 120 113 398 7 31 82 0 0 0 7
------------------------------------------------------------------------------------------------------------------------------------
MASTER PRIMARY MASTER EXCESS PRIMARY EXCESS SUBSERVICER PRIMARY TRUSTEE
LOAN YM ADMIN. COST SERV. FEE SERV. FEE SERV. FEE SERV. FEE SERV. FEE FEE
NO. FORMULA RATE (BPS) RATE (BPS) RATE (BPS) RATE (BPS) RATE (BPS) RATE (BPS) RATE (BPS)
------------------------------------------------------------------------------------------------------------------------------------
3 3.24 2.00 1.00 0.00 0.00 0.00 0.24
4 3.24 2.00 1.00 0.00 0.00 0.00 0.24
5 3.24 2.00 1.00 0.00 0.00 0.00 0.24
6 8.24 2.00 5.00 1.00 0.00 0.00 0.24
7 3.24 2.00 1.00 0.00 0.00 0.00 0.24
8 3.24 2.00 1.00 0.00 0.00 0.00 0.24
9 3.24 2.00 1.00 0.00 0.00 0.00 0.24
10 3.24 2.00 1.00 0.00 0.00 0.00 0.24
11 3.24 2.00 1.00 0.00 0.00 0.00 0.24
12 3.24 2.00 1.00 0.00 0.00 0.00 0.24
13 3.24 2.00 1.00 0.00 0.00 0.00 0.24
14 3.24 2.00 1.00 0.00 0.00 0.00 0.24
15 3.24 2.00 1.00 0.00 0.00 0.00 0.24
16 3.24 2.00 1.00 0.00 0.00 0.00 0.24
17 3.24 2.00 1.00 0.00 0.00 0.00 0.24
18 3.24 2.00 1.00 0.00 0.00 0.00 0.24
39 13.24 2.00 10.00 1.00 0.00 0.00 0.24
40 13.24 2.00 10.00 1.00 0.00 0.00 0.24
41 13.24 2.00 10.00 1.00 0.00 0.00 0.24
44 3.24 2.00 1.00 0.00 0.00 0.00 0.24
45 3.24 2.00 1.00 0.00 0.00 0.00 0.24
46 3.24 2.00 1.00 0.00 0.00 0.00 0.24
47 3.24 2.00 1.00 0.00 0.00 0.00 0.24
48 3.24 2.00 1.00 0.00 0.00 0.00 0.24
49 3.24 2.00 1.00 0.00 0.00 0.00 0.24
50 3.24 2.00 1.00 0.00 0.00 0.00 0.24
51 3.24 2.00 1.00 0.00 0.00 0.00 0.24
52 3.24 2.00 1.00 0.00 0.00 0.00 0.24
93 3.24 2.00 1.00 0.00 0.00 0.00 0.24
94 3.24 2.00 1.00 0.00 0.00 0.00 0.24
98 13.24 2.00 10.00 1.00 0.00 0.00 0.24
176 3.24 2.00 1.00 0.00 0.00 0.00 0.24
SCHEDULE VI
LIST OF ESCROW ACCOUNTS NOT CURRENTLY
ELIGIBLE ACCOUNTS
None.
SCHEDULE VII
CERTAIN ESCROW ACCOUNTS FOR
WHICH A REPORT UNDER SECTION 5.1(G)
IS REQUIRED
PRINCIPAL COMMERCIAL FUNDING
LOAN NO. PROPERTY NAME
------------- ------------------------------------------
37 000 Xxxxxxx Xxxxxxxxx
00 Xxxxx Xxxxxx Xxxx Center
00 Xxxxxxxxx Xxxxxx
35 Blackwell II
31 Broadcom Corporation
90 Cardinal Restaurant Supply
00 Xxxxxxx Xxxx Xxxxxxxx Xxxxxx
00 XxxxxXxxx Xxxxxxx Shopping Center
112 Great Western V
67 Vienna Square Shopping Center
88 Shoppes at Packway
70 Exchange Plaza Shopping Center
XXXXXX XXXXXXX XXXX XXXXXX MORTGAGE CAPITAL
LOAN NO. PROPERTY NAME
------------- -------------------------------------------
5 Fair City Mall
52 Pinecrest Plaze
BEAR STEARNS
Wells Fargo
None.
SCHEDULE VIII
LIST OF MORTGAGORS THAT ARE THIRD PARTY
BENEFICIARIES UNDER SECTION 2.3(a)
None.
SCHEDULE IX
RATES USED IN DETERMINATION OF CLASS X PASS-THROUGH RATES
("CLASS X-1 STRIP RATE" AND "CLASS X-2 STRIP RATE")
04/15/02 7.2602
05/15/02 7.0557
06/15/02 7.2601
07/15/02 7.0556
08/15/02 7.2600
09/15/02 7.2600
10/15/02 7.0555
11/15/02 7.2598
12/15/02 7.0554
01/15/03 7.0553
02/15/03 7.0552
03/15/03 7.0559
04/15/03 7.2595
05/15/03 7.0551
06/15/03 7.2593
07/15/03 7.0550
08/15/03 7.2592
09/15/03 7.2592
10/15/03 7.0548
11/15/03 7.2590
12/15/03 7.0547
01/15/04 7.2589
02/15/04 7.0546
03/15/04 7.0548
04/15/04 7.2587
05/15/04 7.0544
06/15/04 7.2585
07/15/04 7.0543
08/15/04 7.2583
09/15/04 7.2582
10/15/04 7.0541
11/15/04 7.2580
12/15/04 7.0539
01/15/05 7.0538
02/15/05 7.0538
03/15/05 7.0545
04/15/05 7.2575
05/15/05 7.0535
06/15/05 7.2573
07/15/05 7.0533
SCHEDULE X
RATES USED IN DETERMINATION OF CLASS X PASS-THROUGH RATES
("CLASS X-1 STRIP RATE" AND "CLASS X-2 STRIP RATE")
04/15/02 7.2602
05/15/02 7.0557
06/15/02 7.2601
07/15/02 7.0556
08/15/02 7.2600
09/15/02 7.2600
10/15/02 7.0555
11/15/02 7.2598
12/15/02 7.0554
01/15/03 7.0553
02/15/03 7.0552
03/15/03 7.0559
04/15/03 7.2595
05/15/03 7.0551
06/15/03 7.2593
07/15/03 7.0550
08/15/03 7.2592
09/15/03 7.2592
10/15/03 7.0548
11/15/03 7.2590
12/15/03 7.0547
01/15/04 7.2589
02/15/04 7.0546
03/15/04 7.0548
04/15/04 7.2587
05/15/04 7.0544
06/15/04 7.2585
07/15/04 7.0543
08/15/04 7.2583
09/15/04 7.2582
10/15/04 7.0541
11/15/04 7.2580
12/15/04 7.0539
01/15/05 7.0538
02/15/05 7.0538
03/15/05 7.0545
04/15/05 7.2575
05/15/05 7.0535
06/15/05 7.2573
07/15/05 7.0533
08/15/05 7.2570
09/15/05 7.2569
10/15/05 7.0530
11/15/05 7.2567
12/15/05 7.0528
01/15/06 7.0527
02/15/06 7.0527
03/15/06 7.0535
04/15/06 7.2561
05/15/06 7.0523
06/15/06 7.2558
07/15/06 7.0521
08/15/06 7.2555
09/15/06 7.2554
10/15/06 7.0525
11/15/06 7.2559
12/15/06 7.0531
01/15/07 7.0577
02/15/07 7.0576
03/15/07 7.0624
04/15/07 7.2649
05/15/07 7.0611
06/15/07 7.2646
07/15/07 7.0609
08/15/07 7.2643
09/15/07 7.2642
10/15/07 7.0605
11/15/07 7.2639
12/15/07 7.0603
01/15/08 7.2636
02/15/08 7.0600
03/15/08 7.0603
04/15/08 7.2631
05/15/08 7.0596
06/15/08 7.2628
07/15/08 7.0594
08/15/08 7.2625
09/15/08 7.2623
10/15/08 7.0590
11/15/08 7.2620
12/15/08 7.0587
1/15/09 7.0720
2/15/09 7.0860
3/15/09 7.0976
SCHEDULE XI
MORTGAGE LOANS SECURED BY MORTGAGED PROPERTIES COVERED BY AN
ENVIRONMENTAL INSURANCE POLICY
Loan Xx. 00000, Xxxxxxx
Xxxxxxxxxxxxxx - Xxxxxxxxx: Secured creditor impaired property policy with a term that expires five
years after loan maturity.
Loan Xx. 00000, Xxxxxxx Xxxxx: Secured creditor impaired property policy with a term that expires five
years after loan maturity.
SCHEDULE XII
MORTGAGE LOANS THAT ARE EARNOUT LOANS
None.
