================================================================================
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.,
as Depositor,
PRUDENTIAL ASSET RESOURCES, INC.,
as a Master Servicer and as RREEF Textron Special Servicer,
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
as a Master Servicer,
ARCAP SPECIAL SERVICING, INC.
as General Special Servicer,
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
as Certificate Administrator and as Tax Administrator
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee,
ABN AMRO BANK N.V.,
as Fiscal Agent
and
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
as RREEF Textron B-Note Holder
---------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of October 1, 2002
---------------------------------
$921,174,883
Commercial Mortgage Pass-Through Certificates
Series 2002-PBW1
================================================================================
TABLE OF CONTENTS
---------------
SECTION PAGE
------- ----
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
SECTION 1.01. Defined Terms........................................................8
SECTION 1.02. General Interpretive Principles.....................................91
SECTION 1.03. Certain Calculations in Respect of the Mortgage Pool................92
SECTION 1.04. Cross-Collateralized Mortgage Loans.................................94
SECTION 1.05. Incorporation of Preliminary Statement..............................95
ARTICLE II
CONVEYANCE OF POOLED MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES; ORIGINAL ISSUANCE OF REMIC I REGULAR
INTERESTS, REMIC II REGULAR INTERESTS, REMIC III COMPONENTS,
REMIC I RESIDUAL INTEREST, REMIC II RESIDUAL INTEREST, REMIC
III RESIDUAL INTEREST AND CERTIFICATES
SECTION 2.01. Conveyance of Pooled Mortgage Loans.................................96
SECTION 2.02. Acceptance of Mortgage Assets by Trustee...........................101
SECTION 2.03. Certain Repurchases and Substitutions of Mortgage Loans by the
Pooled Mortgage Loan Sellers.....................................104
SECTION 2.04. Representations and Warranties of the Depositor....................112
SECTION 2.05. Representations and Warranties of PAR as a Master Servicer.........114
SECTION 2.06. Representations and Warranties of WFB as a Master Servicer.........116
SECTION 2.07. Representations and Warranties of the General Special Servicer.....118
SECTION 2.08. Representations and Warranties of the RREEF Textron Special
Servicer.........................................................120
SECTION 2.09. Representations and Warranties of the Certificate Administrator
and Tax Administrator............................................122
SECTION 2.10. Representations, Warranties and Covenants of the Trustee...........124
SECTION 2.11. Representations and Warranties of the Fiscal Agent.................126
-i-
SECTION PAGE
------- ----
SECTION 2.12. Creation of REMIC I; Issuance of the REMIC I Regular Interests
and the REMIC I Residual Interest; Certain Matters Involving
REMIC I..........................................................128
SECTION 2.13. Conveyance of the REMIC I Regular Interests; Acceptance of the
REMIC I Regular Interests by Trustee.............................132
SECTION 2.14. Creation of REMIC II; Issuance of the REMIC II Regular Interests
and the REMIC II Residual Interest; Certain Matters Involving
REMIC II.........................................................132
SECTION 2.15. Conveyance of the REMIC II Regular Interests; Acceptance of the
REMIC II Regular Interests by Trustee............................134
SECTION 2.16. Creation of REMIC III; Issuance of the Regular Interest
Certificates, the REMIC III Components and the REMIC III
Residual Interest; Certain Matters Involving REMIC III...........135
SECTION 2.17. Acceptance of Grantor Trusts; Issuance of the Class V and Class R
Certificates.....................................................146
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. General Provisions.................................................148
SECTION 3.02. Collection of Mortgage Loan Payments...............................151
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing
Accounts; Reserve Accounts.......................................152
SECTION 3.04. Collection Accounts, Distribution Account, Interest Reserve
Account and Excess Liquidation Proceeds Account..................157
SECTION 3.05. Permitted Withdrawals From the Collection Accounts, the
Distribution Account, the Interest Reserve Account and the
Excess Liquidation Proceeds Account..............................164
SECTION 3.06. Investment of Funds in the Accounts................................176
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage................................................179
SECTION 3.08. Enforcement of Alienation Clauses..................................186
SECTION 3.09. Realization Upon Defaulted Mortgage Loans..........................192
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files....................197
SECTION 3.11. Master Servicing and Special Servicing Compensation; Interest on
and Reimbursement of Servicing Advances; Payment of Certain
-ii-
SECTION PAGE
------- ----
Expenses; Obligations of the Trustee and the Fiscal Agent
Regarding Back-up Servicing Advances.............................199
SECTION 3.12. Property Inspections; Collection of Financial Statements...........210
SECTION 3.13. Annual Statement as to Compliance..................................212
SECTION 3.14. Reports by Independent Public Accountants..........................213
SECTION 3.15. Access to Information..............................................213
SECTION 3.16. Title to REO Property; REO Account.................................215
SECTION 3.17. Management of REO Property.........................................218
SECTION 3.18. Fair Value Option; Sale of REO Properties..........................222
SECTION 3.19. Additional Obligations of Master Servicers and the Special
Servicer.........................................................230
SECTION 3.20. Modifications, Waivers, Amendments and Consents....................234
SECTION 3.21. Transfer of Servicing Between Applicable Master Servicer and
Applicable Special Servicer; Record Keeping......................242
SECTION 3.22. Sub-Servicing Agreements...........................................244
SECTION 3.23. Controlling Class Representative...................................248
SECTION 3.24. Certain Rights and Powers of the Controlling Class Representative..251
SECTION 3.25. Replacement of Special Servicers...................................257
SECTION 3.26. Application of Default Charges.....................................260
SECTION 3.27. Certain Matters Regarding the RREEF Textron B-Note Holder..........261
SECTION 3.28. Certain Rights and Powers of the RREEF Textron B-Note Holder.......262
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions......................................................267
SECTION 4.02. Certificate Administrator Reports; Servicer Reporting..............282
SECTION 4.03. P&I Advances.......................................................298
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund Expenses...301
SECTION 4.05. Calculations.......................................................302
-iii-
SECTION PAGE
------- ----
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates...................................................304
SECTION 5.02. Registration of Transfer and Exchange of Certificates..............305
SECTION 5.03. Book-Entry Certificates............................................315
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates..................318
SECTION 5.05. Persons Deemed Owners..............................................318
SECTION 5.06. Certification by Certificate Owners................................318
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS AND THE
SPECIAL SERVICERS
SECTION 6.01. Liability of the Depositor, the Master Servicers and the
Special Servicers................................................320
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor, a Master
Servicer or a Special Servicer...................................320
SECTION 6.03. Limitation on Liability of the Depositor, the Master Servicers
and the Special Servicers........................................321
SECTION 6.04. Resignation of Master Servicers and Special Servicers..............323
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the Master
Servicers and the Special Servicers..............................324
SECTION 6.06. Master Servicers and Special Servicers May Own Certificates........325
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default..................................................327
SECTION 7.02. Trustee to Act; Appointment of Successor...........................334
SECTION 7.03. Notification to Certificateholders.................................335
SECTION 7.04. Waiver of Events of Default........................................335
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default...............336
-iv-
SECTION PAGE
------- ----
ARTICLE VIII
THE TRUSTEE, CUSTODIAN, CERTIFICATE ADMINISTRATOR AND
TAX ADMINISTRATOR
SECTION 8.01. Duties of the Trustee, the Custodian, the Certificate
Administrator and the Tax Administrator..........................337
SECTION 8.02. Certain Matters Affecting the Trustee, the Certificate
Administrator and the Tax Administrator..........................340
SECTION 8.03. Trustee, the Fiscal Agent, the Certificate Administrator and the
Tax Administrator not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans...................................342
SECTION 8.04. Trustee, Fiscal Agent, Certificate Administrator and Tax
Administrator May Own Certificates...............................343
SECTION 8.05. Fees and Expenses of the Trustee, the Certificate Administrator
and the Tax Administrator; Indemnification of and by the
Trustee, the Certificate Administrator, the Tax Administrator
and Fiscal Agent.................................................344
SECTION 8.06. Eligibility Requirements for Trustee, Certificate Administrator
and Tax Administrator............................................346
SECTION 8.07. Resignation and Removal of Trustee, Certificate Administrator and
Tax Administrator................................................347
SECTION 8.08. Successor Trustee, Certificate Administrator and Tax
Administrator....................................................349
SECTION 8.09. Merger or Consolidation of Trustee, Certificate Administrator or
Tax Administrator................................................350
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee......................350
SECTION 8.11. Appointment of Custodians..........................................352
SECTION 8.12. Access to Certain Information......................................352
SECTION 8.13. Appointment of Fiscal Agent........................................355
SECTION 8.14. Advance Security Arrangement.......................................357
SECTION 8.15. Exchange Act Reporting.............................................357
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Mortgage Loans...361
SECTION 9.02. Additional Termination Requirements................................365
-v-
SECTION PAGE
------- ----
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. Tax Administration.................................................367
SECTION 10.02. Depositor, Master Servicers, Special Servicers and Fiscal Agent to
Cooperate with Trustee...........................................372
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment..........................................................373
SECTION 11.02. Recordation of Agreement; Counterparts.............................375
SECTION 11.03. Limitation on Rights of Certificateholders.........................376
SECTION 11.04. Governing Law......................................................377
SECTION 11.05. Notices............................................................377
SECTION 11.06. Severability of Provisions.........................................378
SECTION 11.07. Successors and Assigns; Beneficiaries..............................378
SECTION 11.08. Article and Section Headings.......................................379
SECTION 11.09. Notices to and from the Rating Agencies and the Depositor..........379
SECTION 11.10. Notices to Controlling Class Representative........................380
SECTION 11.11. Complete Agreement.................................................380
-vi-
EXHIBITS
EXHIBIT A-1 Form of Certificate (other than Class R and Class V Certificates)
EXHIBIT A-2 Form of Class R Certificate
EXHIBIT A-3 Form of Class V Certificate
EXHIBIT B Letters of Representations Among Depositor, Trustee and Initial
Depositary
EXHIBIT C-1 Form of Master Servicer Request for Release
EXHIBIT C-2 Form of Special Servicer Request for Release
EXHIBIT D-1 Form of Certificate Administrator Report
EXHIBIT D-2 Form of CMSA Servicer Watch List Criteria
EXHIBIT D-3 Form of ARCap Interest on Advance Reconciliation Report
EXHIBIT D-4 Form of ARCap Mortgage Loans Delinquent Report
EXHIBIT ▇-▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇&▇ Advances as of Remittance Date Report
EXHIBIT D-6 ARCap Naming Convention for Electronic File Delivery
EXHIBIT D-7 Controlling Class Certificateholder's Reports Checklist
EXHIBIT E-1A Form I of Transferor Certificate for Transfers of Non-Registered
Certificates Held in Physical Form
EXHIBIT E-1B Form II of Transferor Certificate for Transfers of Non-Registered
Certificates Held in Physical Form
EXHIBIT E-1C Form of Transferor Certificate for Certain Transfers of Interests
in Rule 144A Global Certificates
EXHIBIT E-1D Form of Transferor Certificate for Certain Transfers of Interests
in Regulation S Global Certificates
EXHIBIT E-2A Form I of Transferee Certificate for Transfers of Non-Registered
Certificates Held in Physical Form
EXHIBIT E-2B Form II of Transferee Certificate for Transfers of Non-Registered
Certificates Held in Physical Form
EXHIBIT E-2C Form of Transferee Certificate for Certain Transfers of Interests
in Rule 144A Global Certificates
EXHIBIT E-2D Form of Transferee Certificate for Certain Transfers of Interests
in Regulation S Global Certificates
EXHIBIT E-3A Form of Transferor Certificate for Transfer of the Excess
Servicing Fee Rights
EXHIBIT E-3B Form of Transferee Certificate for Transfer of the Excess
Servicing Fee Rights
EXHIBIT F-1 Form of Transferee Certificate in Connection with ERISA
(Non-Registered Certificates and Non-Investment Grade
Certificates Held in Physical Form)
EXHIBIT F-2 Form of Transferee Certificate in Connection with ERISA
(Non-Registered Certificates Held in Book-Entry Form)
-vii-
EXHIBIT G-1 Form of Transfer Affidavit and Agreement for Transfers of Class R
Certificates
EXHIBIT G-2 Form of Transferor Certificate for Transfers of Class R
Certificates
EXHIBIT H-1 Form of Notice and Acknowledgment Concerning Replacement of the
Special Servicer
EXHIBIT H-2 Form of Acknowledgment of a Proposed Special Servicer
EXHIBIT I Form of UCC-1 Financing Statement
EXHIBIT J-1 Information Request from Certificateholder or Certificate Owner
EXHIBIT J-2 Information Request from Prospective Investor
EXHIBIT K Form of Power of Attorney by Trustee
EXHIBIT L Form of Agreement Among Noteholders
EXHIBIT M Form of Final Certification of Trustee
EXHIBIT N Form of RREEF Textron B-Note Assignment and Assumption Agreement
SCHEDULES
SCHEDULE I-A Schedule of PMCF Pooled Mortgage Loans
SCHEDULE I-B Schedule of BSCMI Pooled Mortgage Loans
SCHEDULE I-C Schedule of BSFI Pooled Mortgage Loans
SCHEDULE I-D Schedule of WFB Pooled Mortgage Loans
SCHEDULE II Schedule of Exceptions to Mortgage File Delivery
(under Section 2.02(a))
SCHEDULE III Schedule of Designated Sub-Servicers
SCHEDULE IV Reference Rates
SCHEDULE V Borrower Third-Party Beneficiaries (under Section 2.03)
-viii-
This Pooling and Servicing Agreement (this "Agreement"), is dated and
effective as of October 1, 2002, among BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE
SECURITIES INC., as Depositor, PRUDENTIAL ASSET RESOURCES, INC. ("PAR"), as a
Master Servicer, ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION ("WFB"), as a Master
Servicer, ARCAP SPECIAL SERVICING, INC., as General Special Servicer, PRUDENTIAL
ASSET RESOURCES, INC. as RREEF Textron Special Servicer, ▇▇▇▇▇ FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION, as Certificate Administrator and as Tax
Administrator, LASALLE BANK NATIONAL ASSOCIATION, as Trustee, ABN AMRO BANK
N.V., as Fiscal Agent and THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, as RREEF
Textron B-Note Holder.
PRELIMINARY STATEMENT:
The Depositor intends to sell Certificates, to be issued hereunder in
multiple Classes, which in the aggregate will evidence the entire beneficial
ownership interest in the Trust to be created hereunder.
REMIC I
-------
As provided herein, the Trustee will elect to treat the segregated pool
of assets consisting of the Pooled Mortgage Loans (exclusive of certain amounts
payable thereon) and certain other assets as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as "REMIC I".
The Class R Certificates will represent ownership of (among other things) the
sole class of "residual interests" in REMIC I for purposes of the REMIC
Provisions under federal income tax law.
REMIC II
--------
As provided herein, the Trustee will elect to treat the segregated pool
of assets consisting of the REMIC I Regular Interests as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated as
"REMIC II". The Class R Certificates will represent ownership of (among other
things) the sole class of "residual interests" in REMIC II for purposes of the
REMIC Provisions under federal income tax law. The following table sets forth
the designation, the REMIC II Remittance Rate and the initial Uncertificated
Principal Balance for each of the REMIC II Regular Interests. The Latest
Possible Maturity Date for each REMIC II Regular Interest is the Rated Final
Distribution Date. None of the REMIC II Regular Interests will be certificated.
Initial
REMIC II Uncertificated
Designation Remittance Rate Principal Balance
----------- --------------- -----------------
A-1-1 Variable (1) $ 50,211,000
A-1-2 Variable (1) $ 43,116,000
A-1-3 Variable (1) $ 43,761,000
A-1-4 Variable (1) $ 129,287,000
A-1-5 Variable (1) $ 31,872,000
A-1-6 Variable (1) $ 73,564,000
A-2-1 Variable (1) $ 33,967,000
A-2-2 Variable (1) $ 36,940,000
A-2-3 Variable (1) $ 314,948,000
B Variable (1) $ 26,483,000
C Variable (1) $ 31,089,000
D-1 Variable (1) $ 2,265,000
D-2 Variable (1) $ 5,795,000
E-1 Variable (1) $ 2,583,000
E-2 Variable (1) $ 6,628,000
F-1 Variable (1) $ 5,195,000
F-2 Variable (1) $ 8,622,000
G-1 Variable (1) $ 6,577,000
G-2 Variable (1) $ 7,240,000
H-1 Variable (1) $ 7,566,000
H-2 Variable (1) $ 8,554,000
J-1 Variable (1) $ 1,181,000
J-2 Variable (1) $ 9,182,000
K Variable (1) $ 3,454,000
L Variable (1) $ 5,757,000
-2-
M Variable (1) $ 9,211,000
N Variable (1) $ 2,302,000
P Variable (1) $ 13,824,883
--------------------
(1) The REMIC II Remittance Rate for each REMIC II Regular Interest
shall be a variable rate per annum calculated in accordance with
the definition of "REMIC II Remittance Rate".
REMIC III
---------
As provided herein, the Trustee will elect to treat the segregated pool
of assets consisting of the REMIC II Regular Interests as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated as
"REMIC III". The Class R Certificates will evidence ownership of (among other
things) the sole class of "residual interests" in REMIC III for purposes of the
REMIC Provisions under federal income tax law.
Class Designations of the Regular Interest Certificates
-------------------------------------------------------
The following table irrevocably sets forth the Class designation,
Pass-Through Rate and initial Class Principal Balance for each Class of the
Regular Interest Certificates.
-3-
Class Initial Class
Designation Pass-Through Rate Principal Balance
----------- ----------------- -----------------
Class A-1 3.97% per annum $ 371,811,000
Class A-2 4.72% per annum $ 385,855,000
Class B 4.87% per annum $ 26,483,000
Class C 4.97% per annum $ 31,089,000
Class D 5.05% per annum $ 8,060,000
Class E 5.44% per annum $ 9,211,000
Class F 5.49% per annum $ 13,817,000
Class G 5.83% per annum $ 13,817,000
Class H 6.00% per annum $ 16,120,000
Class J 6.00% per annum $ 10,363,000
Class K 6.00% per annum $ 3,454,000
Class L 6.00% per annum $ 5,757,000
Class M 6.00% per annum $ 9,211,000
Class N 6.00% per annum $ 2,302,000
Class P 6.00% per annum $ 13,824,883
Class X-1 Variable (1) (2)
Class X-2 Variable (1) (3)
----------------------
(1) The respective Pass-Through Rates for the Class X-1 and Class X-2
Certificates will, in the case of each of those Classes, be a
variable rate per annum calculated in accordance with the
definition of "Pass-Through Rate".
(2) The Class X-1 Certificates will not have a Class Principal
Balance and will not entitle their Holders to receive
distributions of principal. The Class X-1 Certificates will have
a Class Notional Amount which will be equal to the aggregate of
the Component Notional Amounts of such Class' REMIC III
Components from time to time. As more specifically provided
herein, interest in respect of such Class of Certificates will
consist of the aggregate amount of interest accrued on the
respective Component Notional Amounts of such Class' REMIC III
Components from time to time.
(3) The Class X-2 Certificates will not have a Class Principal
Balance and will not entitle their Holders to receive
distributions of principal. As more specifically provided herein,
the Class X-2 Certificates will have a Class Notional Amount that
from time to time will be equal to the aggregate of the Component
Notional Amounts of one or more of such Class' REMIC III
Components from time to time. As more specifically provided
herein, interest in respect of such Class of Certificates will
-4-
consist of the aggregate amount of interest accrued from time to
time on the respective Component Notional Amounts of one or more
of such Class' REMIC III Components.
Designations of the REMIC III Components
----------------------------------------
The REMIC III Components of the Class X-1 Certificates are hereby
irrevocably designated ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇,
▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇-▇-▇-▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇,
▇▇-▇-▇, X1-F-1, X1-F-2, X1-G-1, X1-G-2, X1-H-1, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇,
▇▇-▇, ▇▇-▇, ▇▇-▇ and X1-P.
The REMIC III Components of the Class X-2 Certificates are hereby
irrevocably designated ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇,
▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇, X2-C, X2-D-1, X2-D-2, X2-E-1, X2-E-2,
X2-F-1, X2-F-2, X2-G-1, X2-G-2, X2-H-1, X2-H-2, X2-J-1, X2-J-2 and X2-K.
Corresponding REMIC II Regular Interests
----------------------------------------
The following table irrevocably sets forth, with respect to each REMIC
II Regular Interest, the Class of Certificates, REMIC III Component of the Class
X-1 Certificates and the REMIC III Component of the Class X-2 Certificates for
which such REMIC II Regular Interest constitutes a Corresponding REMIC II
Regular Interest:
-5-
REMIC III REMIC III
REMIC II Class of Component of Class Component of Class
Regular Interest Certificates X-1 Certificates X-2 Certificates
---------------- ------------ ---------------- ----------------
▇-▇-▇ ▇-▇ ▇▇-▇-▇-▇ Not Applicable
▇-▇-▇ ▇-▇ ▇▇-▇-▇-▇ ▇▇-▇-▇-▇
▇-▇-▇ ▇-▇ X1-A-1-3 X2-A-1-3
▇-▇-▇ ▇-▇ ▇▇-▇-▇-▇ ▇▇-▇-▇-▇
▇-▇-▇ ▇-▇ X1-A-1-5 X2-A-1-5
▇-▇-▇ ▇-▇ ▇▇-▇-▇-▇ ▇▇-▇-▇-▇
▇-▇-▇ ▇-▇ X1-A-2-1 X2-A-2-1
▇-▇-▇ ▇-▇ ▇▇-▇-▇-▇ ▇▇-▇-▇-▇
▇-▇-▇ ▇-▇ ▇▇-▇-▇-▇ ▇▇-▇-▇-▇
▇ ▇ ▇▇-▇ ▇▇-▇
▇ ▇ ▇▇-▇ ▇▇-▇
▇-▇ ▇ ▇▇-▇-▇ ▇▇-▇-▇
▇-▇ D X1-D-2 X2-D-2
▇-▇ ▇ ▇▇-▇-▇ ▇▇-▇-▇
▇-▇ ▇ ▇▇-▇-▇ ▇▇-▇-▇
F-1 F X1-F-1 X2-F-1
F-2 F X1-F-2 X2-F-2
▇-▇ ▇ ▇▇-▇-▇ ▇▇-▇-▇
▇-▇ G X1-G-2 X2-G-2
H-1 H X1-H-1 X2-H-1
H-2 H X1-H-2 ▇▇-▇-▇
▇-▇ ▇ ▇▇-▇-▇ ▇▇-▇-▇
▇-▇ ▇ X1-J-2 X2-J-2
K K X1-K X2-K
L L X1-L Not Applicable
M M X1-M Not Applicable
N N X1-N Not Applicable
P P X1-P Not Applicable
For federal income tax purposes, each Class of the Regular Interest
Certificates (exclusive of the Class X-1 and Class X-2 Certificates), each of
the REMIC III Components of the Class X-1 Certificates and each of the REMIC III
Components of the Class X-2 Certificates will be designated as a separate
"regular interest" in REMIC III. The Latest Possible Maturity Date for each
Class of Regular Interest Certificates (exclusive of the Class X-1 and Class X-2
Certificates), for each of the REMIC III Components of the Class X-1
Certificates
-6-
and for each of the REMIC III Components of the Class X-2 Certificates is the
Rated Final Distribution Date.
The Initial Pool Balance will be $921,181,353 and the initial aggregate
Uncertificated Principal Balance of the REMIC I Regular Interests, the initial
aggregate Uncertificated Principal Balance of the REMIC II Regular Interests and
the initial aggregate Class Principal Balance of the respective Classes of
Regular Interest Certificates (other than the Class X-1 and Class X-2
Certificates) will, in each case, be $921,174,883.
Capitalized terms used but not otherwise defined in this Preliminary
Statement have the respective meanings assigned thereto in Section 1.01 of this
Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, each Master Servicer, each Special Servicer, the Certificate
Administrator, the Tax Administrator, the Trustee, the Fiscal Agent and the
RREEF Textron B-Note Holder hereby agree, in each case, as follows:
-7-
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT
OF THE MORTGAGE POOL
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the meanings specified in this
Section 1.01, subject to modification in accordance with Section 1.04.
"30/360 Basis": The accrual of interest calculated on the basis of a
360-day year consisting of twelve 30-day months.
"30/360 Mortgage Loan": A Mortgage Loan that accrues interest on a
30/360 Basis.
"Accrued Certificate Interest": The interest accrued from time to time
with respect to any Class of Regular Interest Certificates, the amount of which
interest shall equal: (a) in the case of any Class of Principal Balance
Certificates for any Interest Accrual Period, one-twelfth of the product of (i)
the Pass-Through Rate applicable to such Class of Certificates for such Interest
Accrual Period, multiplied by (ii) the Class Principal Balance of such Class of
Certificates outstanding immediately prior to the related Distribution Date; and
(b) in the case of either Class of Interest Only Certificates for any Interest
Accrual Period, the aggregate amount of Accrued Component Interest for all of
such Class' REMIC III Components for such Interest Accrual Period.
"Accrued Component Interest": The interest accrued from time to time
with respect to any REMIC III Component of either Class of Interest Only
Certificates, the amount of which interest shall equal, for any Interest Accrual
Period, one-twelfth of the product of (i) the Pass-Through Rate applicable to
such REMIC III Component for such Interest Accrual Period, multiplied by (ii)
the Component Notional Amount of such REMIC III Component outstanding
immediately prior to the related Distribution Date.
"Acquisition Date": With respect to any REO Property, the first day on
which such REO Property is considered to be acquired by the Trust Fund within
the meaning of Treasury regulations section 1.856-6(b)(1), which shall be
-8-
the first day on which the Trust Fund is treated as the owner of such REO
Property for federal income tax purposes.
"Actual/360 Basis": The accrual of interest calculated on the basis of
the actual number of days elapsed during any calendar month (or other applicable
recurring accrual period) in a year assumed to consist of 360 days.
"Actual/360 Mortgage Loan": A Mortgage Loan that accrues interest on an
Actual/360 Basis.
"Additional Collateral": Any non-real property collateral (including
any Letter of Credit) pledged and/or delivered by or on behalf of the related
Borrower and held by the related Mortgagee to secure payment on any Mortgage
Loan.
"Additional Master Servicing Compensation": As defined in Section
3.11(b).
"Additional Special Servicing Compensation": As defined in Section
3.11(d).
"Additional Trust Fund Expense": Any expense incurred or shortfall
experienced with respect to the Trust Fund and not otherwise included in the
calculation of a Realized Loss, that would result in the Regular
Certificateholders receiving less than the full amount of principal and/or
Distributable Certificate Interest to which they are entitled on any
Distribution Date.
"Additional Yield Amount": As defined in Section 4.01(b).
"Adjusted REMIC II Remittance Rate": As defined in Section 2.16(f).
"Administrative Cost Rate": With respect to each Pooled Mortgage Loan
(and any successor REO Pooled Mortgage Loan), the rate per annum specified as
the "Administrative Cost Rate" on the Pooled Mortgage Loan Schedule, which, for
each Pooled Mortgage Loan (and any successor REO Pooled Mortgage Loan) is equal
to the sum of the related Master Servicing Fee Rate, the Trustee Fee Rate and
the Servicer Report Administrator Fee Rate.
"Advance": Any P&I Advance or Servicing Advance.
-9-
"Advance Interest": The interest accrued on any Advance at the
Reimbursement Rate, which is payable to the party hereto that made that Advance,
all in accordance with Section 3.11(g) or Section 4.03(d), as applicable.
"Adverse Grantor Trust Event": Either: (i) any impairment of the status
of any Grantor Trust Pool as a Grantor Trust; or (ii) the imposition of a tax
upon any Grantor Trust Pool or any of its assets or transactions.
"Adverse Rating Event": With respect to any Class of Rated Certificates
and each Rating Agency that has assigned a rating thereto, as of any date of
determination, the qualification, downgrade or withdrawal of the rating then
assigned to such Class of Rated Certificates by such Rating Agency (or the
placing of such Class of Rated Certificates on "negative credit watch" status in
contemplation of any such action with respect thereto).
"Adverse REMIC Event": Either: (i) any impairment of the status of any
REMIC Pool as a REMIC; or (ii) except as permitted by Section 3.17(a), the
imposition of a tax upon any REMIC Pool or any of its assets or transactions
(including the tax on prohibited transactions as defined in Section 860F(a)(2)
of the Code and the tax on contributions set forth in Section 860G(d) of the
Code).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement, as it may be
amended, modified, supplemented or restated following the Closing Date.
"A.M. Best": A.M. Best Company or its successor in interest.
"Annual Accountants' Report": As defined in Section 3.14.
"Annual Performance Certification": As defined in Section 3.13.
"Anticipated Repayment Date": With respect to any ARD Mortgage Loan,
the date specified in the related Mortgage Note, as of which Post-ARD Additional
Interest shall begin to accrue on such Mortgage Loan, which date is prior to the
Stated Maturity Date for such Mortgage Loan.
-10-
"Applicable State Law": For purposes of Article X, the Applicable State
Law shall be (1) the laws of the State of New York; (2) to the extent brought to
the attention of the Tax Administrator (by either (i) an Opinion of Counsel
delivered to it or (ii) written notice from the appropriate taxing authority as
to the applicability of such state law), (a) the laws of the states in which the
Corporate Trust Offices of the Certificate Administrator and the Trustee and the
Primary Servicing Offices of the Master Servicers and the Special Servicers are
located and (b) the laws of the states in which any Mortgage Loan Documents are
held and/or any REO Properties are located; and (3) such other state or local
law as to which the Tax Administrator has actual knowledge of applicability.
"Appraisal": With respect to any Mortgaged Property or REO Property as
to which an appraisal is required to be performed pursuant to the terms of this
Agreement, a narrative appraisal complying with USPAP (or, in the case of a
Pooled Mortgage Loan or an REO Pooled Mortgage Loan with a Stated Principal
Balance as of the date of such appraisal of $2,000,000 or less, at the
applicable Special Servicer's option, either a limited appraisal and a summary
report or an internal valuation prepared by the applicable Special Servicer)
that (i) indicates the "market value" of the subject property (within the
meaning of 12 CFR (Section) 225.62(g)) and (ii) is conducted by a Qualified
Appraiser (except that, in the case of a Pooled Mortgage Loan or an REO Pooled
Mortgage Loan with a Stated Principal Balance as of the date of such appraisal
of $2,000,000 or less, the appraiser may be an employee of the applicable
Special Servicer, which employee need not be a Qualified Appraiser but shall
have experience in commercial and/or multifamily properties, as the case may be,
and possess sufficient knowledge to value such a property).
"Appraisal Reduction Amount": With respect to any Required Appraisal
Loan, an amount (calculated initially as of the Determination Date immediately
following the later of the date on which the subject Mortgage Loan became a
Required Appraisal Loan and the date on which the applicable Required Appraisal
was obtained) equal to the excess, if any, of:
(a) the sum of, without duplication, (i) the Stated Principal
Balance of such Required Appraisal Loan, (ii) to the extent not previously
advanced by or on behalf of the applicable Master Servicer, the Trustee or
the Fiscal Agent, all unpaid interest on such Required Appraisal Loan
through the most recent Due Date prior to the date of calculation
(exclusive of any portion thereof that represents Additional Interest
and/or Default Interest), (iii) all accrued and unpaid Special Servicing
Fees in respect of such Required Appraisal Loan, (iv) all related
unreimbursed Advances made by or on behalf of (plus all accrued interest on
such
-11-
Advances payable to) the applicable Master Servicer, the applicable Special
Servicer, the Trustee and/or the Fiscal Agent with respect to such Required
Appraisal Loan, and (v) all currently due and unpaid real estate taxes and
assessments, insurance premiums and, if applicable, ground rents, and any
unfunded improvement or other applicable reserves, in respect of the
related Mortgaged Property or REO Property, as the case may be (in each
case, net of any amounts escrowed with the applicable Master Servicer or
Special Servicer for such items); over
(b) an amount equal to the sum of: (a) the excess, if any, of (i)
90% of the Appraised Value of such Mortgaged Property (or REO Property) as
determined by the most recent Required Appraisal or any letter update of
such Required Appraisal, over (ii) the amount of any obligations secured by
liens on such Mortgaged Property (or REO Property) that are prior to the
lien of the related Required Appraisal Loan; plus (b) the amount of any
Escrow Payments and/or Reserve Funds held by the applicable Master Servicer
or Special Servicer with respect to such Required Appraisal Loan, the
related Mortgaged Property or any related REO Property that (i) are not
being held in respect of any real estate taxes and assessments, insurance
premiums or, if applicable, ground rents, (ii) are not otherwise scheduled
to be applied or utilized (except to pay debt service on such Required
Appraisal Loan) within the twelve-month period following the date of
determination and (iii) may be applied towards the reduction of the
principal balance of such Required Appraisal Loan; plus (c) the amount of
any Letter of Credit constituting additional security for such Required
Appraisal Loan and that may be applied towards the reduction of the
principal balance of such Required Appraisal Loan.
Notwithstanding the foregoing, if (i) any Mortgage Loan becomes a
Required Appraisal Loan, (ii) either (A) no Required Appraisal or update thereof
has been obtained or conducted, as applicable, in accordance with Section
3.19(a), with respect to the related Mortgaged Property during the 12-month
period prior to the date such Mortgage Loan became a Required Appraisal Loan or
(B) there shall have occurred since the date of the most recent Required
Appraisal or update thereof a material change in the circumstances surrounding
the related Mortgaged Property that would, in the applicable Special Servicer's
reasonable judgment, materially affect the value of the related Mortgaged
Property, and (iii) no new Required Appraisal is obtained or conducted, as
applicable, in accordance with Section 3.19(a), within 60 days after such
Mortgage Loan became a Required Appraisal Loan, then (x) until such new Required
Appraisal is obtained or conducted, as applicable, in accordance with Section
3.19(a), the Appraisal Reduction Amount shall equal 25% of the Stated
-12-
Principal Balance of such Required Appraisal Loan, and (y) upon receipt or
performance, as applicable, in accordance with Section 3.19(a), of such Required
Appraisal or update thereof by the applicable Special Servicer, the Appraisal
Reduction Amount for such Required Appraisal Loan shall be recalculated in
accordance with the preceding sentence of this definition.
In connection with the foregoing, each Cross-Collateralized Mortgage
Loan that is part of a single Cross-Collateralized Group shall be treated
separately (in each case as a single Mortgage Loan without regard to the
cross-collateralization and cross-default provisions) for purposes of
calculating an Appraisal Reduction Amount, except that the indebtedness
represented by the RREEF Textron Pooled Mortgage Loan shall be treated as a
single Pooled Mortgage Loan (notwithstanding that the RREEF Textron Pooled
Mortgage Loan is evidenced by two promissory notes) for purposes of calculating
any Appraisal Reduction Amounts.
For purposes of determining whether a RREEF Textron Change of Control
Event has occurred, any Appraisal Reduction Amount with respect to the RREEF
Textron Pooled Mortgage Loan will be calculated with respect to the entire
indebtedness under the RREEF Textron Mortgage Loan Pair as if such indebtedness
were a single "Pooled Mortgage Loan". Any Appraisal Reduction Amount with
respect to the RREEF Textron Pooled Mortgage Loan will be calculated only with
respect to the indebtedness under the RREEF Textron Pooled Mortgage Loan (and
not with respect to the indebtedness under the RREEF Textron B-Note Mortgage
Loan) for all other purposes under this Agreement.
An Appraisal Reduction Amount with respect to any Mortgage Loan will be
reduced to zero as of the date on which all Servicing Transfer Events have
ceased to exist with respect to such Mortgage Loan and at least 90 days have
passed following the occurrence of the most recent Appraisal Trigger Event. No
Appraisal Reduction Amount will exist as to any Pooled Mortgage Loan after it
has been paid in full or it (or the REO Property) has been liquidated or
otherwise disposed of.
"Appraised Value": With respect to each Mortgaged Property or REO
Property, the appraised value thereof based upon the most recent Appraisal
obtained or conducted, as appropriate, pursuant to this Agreement.
"ARCap Interest on Advance Reconciliation Report": The report in the
form of and containing the information provided for on Exhibit D-3 hereto. The
ARCap Interest on Advance Reconciliation Report shall be in Excel format
-13-
or such other format as is reasonably acceptable to the Master Servicers, the
Certificate Administrator and the Controlling Class Representative.
"ARCap Mortgage Loans Delinquent Report": The report in the form of and
containing the information provided for on Exhibit D-4 hereto. The ARCap
Mortgage Loans Delinquent Report shall be in Excel format or such other format
as is reasonably acceptable to the Master Servicers, the Certificate
Administrator and the Controlling Class Representative.
"ARCap Naming Convention for Electronic File Delivery": The naming
convention for electronic file delivery set forth on Exhibit ▇-▇ ▇▇▇▇▇▇.
"▇▇▇▇▇ ▇&▇ Advances as of Remittance Date Report: The report in the
form of and containing the information provided for on Exhibit D-5 hereto. The
ARCap P&I Advances as of Remittance Date Report shall be in Excel format or such
other format as is reasonably acceptable to the Master Servicers, the
Certificate Administrator and the Controlling Class Representative.
"ARD Mortgage Loan": A Mortgage Loan that provides for the accrual of
Post-ARD Additional Interest thereon if such Mortgage Loan is not paid in full
on or prior to its Anticipated Repayment Date.
"Asset Status Report": As defined in Section 3.24(a).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the related Borrower in connection with the origination of the
related Loan, as such assignment may be amended, modified, renewed or extended
through the date hereof and from time to time hereafter.
"Assumed Monthly Payment": With respect to (a) any Pooled Mortgage Loan
that is a Balloon Mortgage Loan delinquent in respect of its Balloon Payment
beyond the Determination Date immediately following its scheduled maturity date
(as such date may be extended in connection with a bankruptcy, insolvency or
similar proceeding involving the related Borrower or by reason of a
modification, waiver or amendment granted or agreed to by the applicable Master
Servicer or Special Servicer pursuant to Section 3.20), for that scheduled
maturity date and for each subsequent Due Date as of which such Pooled Mortgage
Loan remains outstanding and part of the Trust Fund, the scheduled monthly
payment of principal and/or interest deemed to be due with respect to such
Pooled Mortgage Loan on such Due Date equal to the amount (exclusive of Default
Interest) that would have been due in respect thereof on
-14-
such Due Date if such Pooled Mortgage Loan had been required to continue to
accrue interest in accordance with its terms, and to pay principal in accordance
with the amortization schedule (if any), in effect immediately prior to, and
without regard to the occurrence of, such maturity date; and (b) any REO Pooled
Mortgage Loan, for any Due Date as of which the related REO Property remains
part of the Trust Fund, the scheduled monthly payment of principal and/or
interest deemed to be due in respect thereof on such Due Date equal to the
Monthly Payment (or, in the case of a Balloon Mortgage Loan described in clause
(a) of this definition, the Assumed Monthly Payment) that was due (or deemed
due) with respect to the related Pooled Mortgage Loan on the last Due Date prior
to its becoming an REO Pooled Mortgage Loan.
"ASTM": The American Society for Testing and Materials.
"Available Distribution Amount": With respect to any Distribution Date,
an amount equal to (a) the sum of (i) all amounts on deposit in the Distribution
Account as of 11:00 a.m., New York City time, on such Distribution Date, (ii) to
the extent not included in the amount described in clause (a)(i) of this
definition, any P&I Advances and/or Compensating Interest Payments that were
made in respect of such Distribution Date, (iii) to the extent not included in
the amount described in clause (a)(i) of this definition, the aggregate amount
transferred (pursuant to Section 3.05(d)) from the Excess Liquidation Proceeds
Account to the Distribution Account in respect of such Distribution Date, and
(iv) to the extent not included in the amount described in clause (a)(i) of this
definition, if such Distribution Date occurs during the month of March of 2003
or any year thereafter, the aggregate of the Interest Reserve Amounts with
respect to the Interest Reserve Loans transferred from the Interest Reserve
Account to the Distribution Account during such month of March for distribution
on such Distribution Date, net of (b) any portion of the amounts described in
clause (a) of this definition that represents one or more of the following: (i)
collected Monthly Payments that are due on a Due Date following the end of the
related Collection Period, (ii) any payments of principal (including Principal
Prepayments) and interest, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received by or on behalf of the Trust after the end of the
related Collection Period, (iii) any Prepayment Premiums, Yield Maintenance
Charges and/or Post-ARD Additional Interest, (iv) any amounts payable or
reimbursable to any Person from the Distribution Account pursuant to clauses
(iii) through (vii) of Section 3.05(b), (v) if such Distribution Date occurs
during the month of February of 2003 or any year thereafter or during the month
of January of 2003 or any year thereafter that is not a leap year, the aggregate
of the Interest Reserve Amounts with respect to the Interest Reserve Loans to be
withdrawn (pursuant to Section 3.04(c) and Section 3.05(b)(ii)) from the
Distribution
-15-
Account and deposited into the Interest Reserve Account during such month of
February or such month of January, as the case may be, and held for future
distribution, and (vi) any amounts deposited in the Distribution Account in
error; provided that the Available Distribution Amount for the Final
Distribution Date shall be calculated without regard to clauses (b)(i), (b)(ii)
and (b)(v) of this definition.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original terms
or by virtue of any modification entered into as of the Closing Date (or, in the
case of a Replacement Pooled Mortgage Loan, as of the related date of
substitution) provides for an amortization schedule extending beyond its Stated
Maturity Date and as to which, in accordance with such terms, the Monthly
Payment due on its Stated Maturity Date is at least 5% of the original principal
balance of such Mortgage Loan.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of any
date of determination, the Monthly Payment payable on the Stated Maturity Date
of such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time to
time (Title 11 of the United States Code).
"Base Prospectus": That certain prospectus dated September 18, 2002,
relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Book-Entry Certificate": Any Certificate registered in the name of the
Depositary or its nominee.
"Book-Entry Non-Registered Certificate": Any Non-Registered Certificate
that constitutes a Book-Entry Certificate.
"Borrower": Individually and collectively, as the context may require,
the obligor or obligors under a Mortgage Loan, including any Person that has not
signed the related Mortgage Note but owns an interest in the related Mortgaged
Property, which interest has been encumbered to secure such Mortgage Loan.
"Breach": As defined in Section 2.03(a).
"BSCMI": Bear ▇▇▇▇▇▇▇ Commercial Mortgage, Inc., or its successor in
interest.
-16-
"BSCMI Mortgage Loan": Any Pooled Mortgage Loan that is either an
Original BSCMI Pooled Mortgage Loan or a Replacement Pooled Mortgage Loan that
was delivered under the BSCMI Pooled Mortgage Loan Purchase Agreement in
substitution for an Original BSCMI Pooled Mortgage Loan.
"BSCMI Pooled Mortgage Loan Purchase Agreement": That certain Mortgage
Loan Purchase and Sale Agreement dated as of October 3, between Bear, ▇▇▇▇▇▇▇
Commercial Mortgage, Inc. and the Depositor.
"BSFI": Bear, ▇▇▇▇▇▇▇ Funding, Inc., or its successor in interest.
"BSCMCSI": Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., or its
successor in interest.
"BSFI Mortgage Loan": Any Pooled Mortgage Loan that is either an
Original BSFI Pooled Mortgage Loan or a Replacement Pooled Mortgage Loan that
was delivered under the BSFI Pooled Mortgage Loan Purchase Agreement in
substitution for an Original BSFI Pooled Mortgage Loan.
"BSFI Pooled Mortgage Loan Purchase Agreement": That certain Mortgage
Loan Purchase and Sale Agreement dated as of October 3, 2002, between Bear,
▇▇▇▇▇▇▇ Funding, Inc. and the Depositor.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in California, New York or Illinois or any of the
jurisdictions in which the respective Primary Servicing Offices of the Master
Servicers and the Special Servicers and the Corporate Trust Offices of the
Certificate Administrator and the Trustee are located, are authorized or
obligated by law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's 2002-PBW1 Commercial Mortgage
Pass-Through Certificates, as executed by the Certificate Administrator and
authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Administrator": ▇▇▇▇▇ Fargo Bank Minnesota, N.A., in its
capacity as certificate administrator hereunder, or any successor certificate
administrator appointed as herein provided.
-17-
"Certificate Administrator Fee": That portion of the Trustee Fee
payable to the Certificate Administrator in an amount agreed to by the Trustee
and the Certificate Administrator.
"Certificate Administrator Report": As defined in Section 4.02(a).
"Certificate Factor": With respect to any Class of Regular Interest
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to eight places, the numerator of which is the related Class
Principal Balance or Class Notional Amount, as the case may be, then
outstanding, and the denominator of which is the related Class Principal Balance
or Class Notional Amount, as the case may be, outstanding as of the Closing
Date.
"Certificateholder" or "Holder": The Person in whose name a Certificate
is registered in the Certificate Register, provided, however, that: (i) neither
a Disqualified Organization nor a Non-United States Person shall be a "Holder"
of, or a "Certificateholder" with respect to, a Class R Certificate for any
purpose hereof; and (ii) solely for purposes of giving any consent, approval,
direction or waiver pursuant to this Agreement that specifically relates to the
rights, duties and/or obligations hereunder of any of the Depositor, a Master
Servicer, a Special Servicer, the Tax Administrator, the Certificate
Administrator, the Trustee or the Fiscal Agent in its respective capacity as
such (other than any consent, approval or waiver contemplated by any of Sections
3.23, 3.24 and 6.06), any Certificate registered in the name of such party or in
the name of any Affiliate thereof shall be deemed not to be outstanding, and the
Voting Rights to which it is entitled shall not be taken into account in
determining whether the requisite percentage of Voting Rights necessary to
effect any such consent, approval or waiver that specifically relates to such
party has been obtained. The Certificate Registrar shall be entitled to request
and conclusively rely upon a certificate of the Depositor, a Master Servicer or
a Special Servicer in determining whether a Certificate is registered in the
name of an Affiliate of such Person. All references herein to
"Certificateholders" or "Holders" shall reflect the rights of Certificate Owners
only insofar as they may indirectly exercise such rights through the Depository
and the Depository Participants (except as otherwise specified herein), it being
herein acknowledged and agreed that the parties hereto shall be required to
recognize as a "Certificateholder" or "Holder" only the Person in whose name a
Certificate is registered in the Certificate Register.
"Certificate Notional Amount": With respect to any Interest Only
Certificate, as of any date of determination, the then notional principal amount
on which such Certificate accrues interest, equal to the product of (a) the then
Certificate Factor for the Class of Interest Only Certificates to which such
-18-
Certificate belongs, multiplied by (b) the amount specified on the face of such
Certificate as the initial Certificate Notional Amount thereof.
"Certificate Owner": With respect to any Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depositary or on the books of a Depositary Participant or on the books of
an indirect participating brokerage firm for which a Depositary Participant acts
as agent.
"Certificate Principal Balance": With respect to any Principal Balance
Certificate, as of any date of determination, the then outstanding principal
amount of such Certificate equal to the product of (a) the then Certificate
Factor for the Class of Principal Balance Certificates to which such Certificate
belongs, multiplied by (b) the amount specified on the face of such Certificate
as the initial Certificate Principal Balance thereof.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certification Parties": As defined in Section 8.15(b).
"Certifying Person": As defined in Section 8.15(b).
"Class": Collectively, all of the Certificates bearing the same
alphabetic or alphanumeric class designation and having the same payment terms.
"Class A Certificates": The Class A-1 and Class A-2 Certificates.
"Class A-1 Certificate": Any one of the Certificates with a "Class A-1"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class A-2"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A Principal Distribution Cross-Over Date": The first
Distribution Date as of the commencement of business on which (i) the Class A-1
and Class A-2 Certificates remain outstanding and (ii) the aggregate of the
Class Principal Balances of the Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N and Class P
Certificates have
-19-
been reduced to zero as a result of the allocation of Realized Losses and
Additional Trust Fund Expenses pursuant to Section 4.04(a).
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class H Certificate": Any of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
-20-
"Class K Certificate": Any of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class L Certificate": Any of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class M Certificate": Any of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class N Certificate": Any of the Certificates with a "Class N"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class Notional Amount": The aggregate hypothetical or notional amount
on which any Class of Interest Only Certificates accrues or is deemed to accrue
interest from time to time, as calculated in accordance with Section 2.16(e).
"Class P Certificate": Any of the Certificates with a "Class P"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class Principal Balance": The aggregate principal balance of any Class
of Principal Balance Certificates outstanding as of any date of determination.
As of the Closing Date, the Class Principal Balance of each Class of Principal
Balance Certificates shall equal the Original Class Principal Balance thereof.
On each Distribution Date, the Class Principal Balance of each Class of
Principal Balance Certificates shall be permanently reduced by the amount of any
distributions of principal made thereon on such Distribution Date pursuant to
Section 4.01 or 9.01, as applicable, and shall be further permanently reduced by
the amount of any Realized Losses and Additional Trust Fund Expenses deemed
allocated thereto on such Distribution Date pursuant to Section 4.04(a).
-21-
"Class R Certificate": Any of the Certificates with a "Class R"
designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing ownership of Grantor Trust R.
"Class V Certificate": Any of the Certificates with a "Class V"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing ownership of Grantor Trust V.
"Class X-1 Certificate": Any of the Certificates with a "Class X-1"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class X-2 Certificate": Any of the Certificates with a "Class X-2"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Clearstream": Clearstream Banking, societe anonyme or any successor.
"Closing Date": October 3, 2002.
"CMSA": The Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, issuers, placement agents and
underwriters generally involved in the commercial mortgage loan securitization
industry, which is the principal such association or organization in the
commercial mortgage loan securitization industry and one of whose principal
purposes is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in one
of the preceding sentences of this definition does not exist, "CMSA" shall be
deemed to refer to such other association or organization as shall be reasonably
acceptable to the Master Servicers, the Certificate Administrator, Trustee, the
Special Servicers and the Directing Certificateholder.
-22-
"CMSA Bond Level File": The monthly report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Bond Level File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Certificate Administrator and the Trustee.
"CMSA Collateral Summary File": The report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Collateral Summary File" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Certificate Administrator and the Trustee.
"CMSA Comparative Financial Status Report": A report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Comparative Financial Status Report" available as of the Closing Date on
the CMSA Website, or such other form for the presentation of such information as
may from time to time be recommended by the CMSA for commercial mortgage
securities transactions generally and is reasonably acceptable to each Master
Servicer and each Special Servicer. Each CMSA Comparative Financial Status
Report shall be based on (1) the most recent rent roll and (2) to the extent
provided to the applicable Master Servicer or Special Servicer, (i) in
connection with a CMSA Comparative Financial Status Report relating to quarterly
financial information, trailing 12 months of financial information
(non-normalized), if trailing 12 months of financial information was provided to
the applicable Master Servicer or the applicable Special Servicer (as the case
may be), or financial information based on 9 months of operating statements or
year-to-date financial information, if trailing 12 months of financial
information was not provided to the applicable Master Servicer or the applicable
Special Servicer (as the case may be) and 9 months of operating statements or
year-to-date financial information was provided to the applicable Master
Servicer or the applicable Special Servicer (as the case may be) or (ii) in
connection with a CMSA Comparative Financial Status Report relating to annual
financial information, annual operating statements (if provided to the
applicable Master Servicer or the applicable Special Servicer (as the case may
be)), normalized. To the extent the information described above has been
provided to the applicable Master Servicer or Special Servicer, each CMSA
Comparative Financial Status Report shall present (among other things called for
by the form of CMSA Comparative Financial Status Report) the occupancy rate,
debt service coverage
-23-
ratio, net operating income and net cash flow for each Mortgage Loan or
Mortgaged Property covered thereby.
"CMSA Delinquent Loan Status Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Delinquent Loan Status Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to each Master Servicer and each Special Servicer.
"CMSA Financial File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the
"Financial File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to each Master Servicer.
"CMSA Historical Liquidation Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Historical Liquidation Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to each Master Servicer and each Special Servicer.
"CMSA Historical Loan Modification Report": A report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Historical Loan Modification Report" available as of the Closing Date on
the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be
recommended by the CMSA for commercial mortgage securities transactions
generally and is reasonably acceptable to each Master Servicer and each Special
Servicer.
"CMSA Investor Reporting Package": Collectively:
(a) the following electronic files: (i) CMSA Loan Setup File, (ii) CMSA
Loan Periodic Update File, (iii) CMSA Property File, (iv) CMSA Bond Level
File, (v) CMSA Financial File and (vi) CMSA Collateral Summary File; and
-24-
(b) the following supplemental reports: (i) CMSA Delinquent Loan Status
Report, (ii) CMSA Historical Loan Modification Report, (iii) CMSA
Historical Liquidation Report, (iv) CMSA REO Status Report, (v) CMSA
Operating Statement Analysis Report, (vi) CMSA Comparative Financial Status
Report, (vii) CMSA Servicer Watch List, (viii) CMSA NOI Adjustment
Worksheet and (ix) with respect to any Collection Period that commences at
any time following the date that is nine (9) months following adoption of
the form thereof by the CMSA, (a) CMSA Loan Level Reserve Report, (b) CMSA
Reconciliation of Funds Report and (c) CMSA Special Servicer Defaulted Loan
Report.
"CMSA Loan Level Reserve Report": A report substantially in the form
of, and containing the information called for in, the "Loan Level Reserve
Report" as hereafter adopted by the CMSA and made available at the CMSA Website.
"CMSA Loan Periodic Update File": The monthly report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Loan Periodic Update File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to each Master Servicer, each Special Servicer, the
Certificate Administrator and the Trustee.
"CMSA Loan Setup File": The report substantially in the form of, and
containing the information called for in, the downloadable form of the "Loan
Setup File" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and is reasonably acceptable to each
Master Servicer, each Special Servicer, the Certificate Administrator and the
Trustee.
"CMSA NOI Adjustment Worksheet": A report substantially in the form of,
and containing the information called for in, the downloadable form of the "NOI
Adjustment Worksheet" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to each Master Servicer and each Special Servicer and in any event,
shall present the computations made in accordance with the
-25-
methodology described in such form to "normalize" the full year net operating
income and debt service coverage numbers used in the other reports required by
this Agreement.
"CMSA Property File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "Property
File" available as of the Closing Date on the CMSA Website, or such other form
for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and is reasonably acceptable to each
Master Servicer and each Special Servicer.
"CMSA Operating Statement Analysis Report": A report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Operating Statement Analysis Report" available as of the Closing Date on
the CMSA Website or in such other form for the presentation of such information
and containing such additional information as may from time to time be
recommended by the CMSA for commercial mortgage-backed securities transactions
generally and is reasonably acceptable to each Master Servicer.
"CMSA Reconciliation of Funds Report": A report substantially in the
form of, and containing the information called for in, the "Reconciliation of
Funds Report" as hereafter adopted by the CMSA and made available at the CMSA
Website.
"CMSA REO Status Report": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "REO
Status Report" available as of the Closing Date on the CMSA Website, or in such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to each Special Servicer.
"CMSA Servicer Watch List": A report containing the information called
for in Exhibit D-2; provided that upon the CMSA's adoption of "Servicer Watch
List" criteria, a report in the form of and containing the information in the
downloadable form of the "Servicer Watch List" then available on the CMSA
Website, or in such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and,
insofar as such report requires the presentation of information in
-26-
addition to that called for by the form of the "Servicer Watch List" available
on the CMSA Website, a report which is reasonably acceptable to each Master
Servicer.
"CMSA Special Servicer Defaulted Loan Report": A report substantially
in the form of, and containing the information called for in, the "Special
Servicer Defaulted Loan Report" as hereafter adopted by the CMSA and made
available at the CMSA Website.
"CMSA Website": The CMSA's Website located at "▇▇▇.▇▇▇▇.▇▇▇" or such
other primary website as the CMSA may establish for dissemination of its report
forms.
"Code": The Internal Revenue Code of 1986 and regulations promulgated
thereunder, including proposed regulations to the extent that, by reason of
their proposed effective date, could, as of the date of any determination or
opinion as to the tax consequences of any action or proposed action or
transaction, be applied to the Trust or the Certificates.
"Collection Account": The segregated account or accounts created and
maintained by each Master Servicer, pursuant to Section 3.04(a), in trust for
the Certificateholders, which shall be entitled "[name of subject Master
Servicer], as a Master Servicer, in trust for the registered holders of Bear
▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, 2002-PBW1, Collection Account".
"Collection Period": With respect to any Distribution Date, the period
commencing on the day immediately following the Determination Date in the
calendar month preceding the month in which such Distribution Date occurs (or,
in the case of the initial Distribution Date, commencing as of the Cut-off Date)
and ending on and including the Determination Date in the calendar month in
which such Distribution Date occurs.
"Commission": The Securities and Exchange Commission or any successor
thereto.
"Compensating Interest Payment": With respect to any Distribution Date,
any payment made by a Master Servicer pursuant to Section 3.19(c) to cover
Prepayment Interest Shortfalls incurred during the related Collection Period.
-27-
"Component Notional Amount": The notional amount on which any REMIC III
Component of either Class of Interest Only Certificates accrues interest, which,
as of any date of determination, is equal to the then current Uncertificated
Principal Balance of such REMIC III Component's Corresponding REMIC II Regular
Interest.
"Condemnation Proceeds": All cash amounts actually received by the
Trust or by a Master Servicer or Special Servicer on its behalf in connection
with the taking of all or a part of a Mortgaged Property by exercise of the
power of eminent domain or condemnation, exclusive of any portion thereof
required to be released to the related Borrower or any other third-party in
accordance with applicable law and/or the terms and conditions of the related
Mortgage Loan Documents or any other applicable document.
"Controlling Class": As of any date of determination, the outstanding
Class of Principal Balance Certificates that (a) bears the latest alphabetic
Class designation and (b) has a Class Principal Balance which is not less than
25% of the Original Class Principal Balance of such Class; provided that if no
Class of Principal Balance Certificates has as of such date of determination a
Class Principal Balance not less than 25% of its Original Class Principal
Balance, then the Controlling Class shall be the then outstanding Class of
Principal Balance Certificates bearing the latest alphabetic Class designation
that has a Class Principal Balance greater than zero; and provided, further,
that, for purposes of this definition, the Class A-1 and Class A-2 Certificates
shall be deemed a single Class of Certificates.
"Controlling Class Certificateholder": Any Holder of Certificates of
the Controlling Class.
"Controlling Class Representative": As defined in Section 3.23(a). The
initial Controlling Class Representative shall be ARCap CMBS Fund REIT, Inc.
"Corporate Trust Office: The principal corporate trust office of the
Certificate Administrator or the asset-backed securities trust services office
of the Trustee, as the case may be, at which at any particular time its duties,
with respect to this Agreement shall be administered, which office is as of the
Closing Date located: (i) in the case of the Certificate Administrator, for
Certificate transfer purposes, ▇▇▇▇▇ Fargo Center, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; Attn: Bear ▇▇▇▇▇▇▇ Commercial Mortgage
Securities Inc., 2002-PBW1, and for all other purposes, at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration, Bear
▇▇▇▇▇▇▇
-28-
Commercial Mortgage Securities Inc., 2002-PBW1; and (ii) in the case of the
Trustee, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Asset-Backed Securities Trust Services Group-Bear ▇▇▇▇▇▇▇ Commercial Mortgage
Securities Inc., 2002-PBW1.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a Specially
Serviced Mortgage Loan but has ceased to be such in accordance with the
definition of "Specially Serviced Mortgage Loan" (other than by reason of a
Liquidation Event occurring in respect of such Mortgage Loan or the related
Mortgaged Property's becoming an REO Property).
"Corresponding REMIC II Regular Interest": (a) With respect to any
Class of Principal Balance Certificates, the one or more REMIC II Regular
Interests opposite which such Class is set forth in the Preliminary Statement in
the table titled "REMIC III--Corresponding REMIC II Regular Interests"; (b) with
respect to any REMIC III Component of the Class X-1 Certificates, the REMIC II
Regular Interest opposite which such REMIC III Component is set forth in the
Preliminary Statement in the table titled "REMIC III--Corresponding REMIC II
Regular Interests"; and (c) with respect to any REMIC III Component of the Class
X-2 Certificates, the REMIC II Regular Interest opposite which such REMIC III
Component is set forth in the Preliminary Statement in the table titled "REMIC
III--Corresponding REMIC II Regular Interests".
"Cross-Collateralized Group": Any group of Mortgage Loans that are
cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan, that is, by
its terms, cross-defaulted and cross-collateralized with any other Mortgage
Loan.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, the Pooled Mortgage Loan Sellers or an
Affiliate of any of them.
"Cut-off Date": October 1, 2002.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan,
the outstanding principal balance of such Mortgage Loan as of its Due Date in
October 2002, after application of all payments of principal due on or before
such date, whether or not received.
-29-
"Default Charges": Default Interest and/or late payment charges that
are paid or payable, as the context may require, in respect of any Mortgage Loan
or REO Mortgage Loan.
"Default Interest": With respect to any Mortgage Loan (or successor REO
Mortgage Loan), any amounts collected thereon, other than late payment charges,
Prepayment Premiums or Yield Maintenance Charges, that represent interest
(exclusive, if applicable, of Post-ARD Additional Interest) in excess of
interest accrued on the principal balance of such Mortgage Loan (or REO Mortgage
Loan) at the related Mortgage Rate, such excess interest arising out of a
default under such Mortgage Loan.
"Defaulting Party": As defined in Section 7.01(b).
"Defective Pooled Mortgage Loan": Any Pooled Mortgage Loan as to which
there exists a Material Breach or a Material Document Defect that has not been
cured in all material respects.
"Definitive Certificate": As defined in Section 5.03(a).
"Deleted Pooled Mortgage Loan": A Defective Pooled Mortgage Loan that
is purchased or repurchased, as the case may be, from the Trust or replaced with
one or more Replacement Pooled Mortgage Loans, in either case as contemplated by
Section 2.03.
"Depositor": Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., or its
successor in interest.
"Depository": The Depository Trust Company or any successor Depository
hereafter named as contemplated by Section 5.03(c). The nominee of the initial
Depository for purposes of registering those Certificates that are to be
Book-Entry Certificates, is Cede & Co. The Depository shall at all times be a
"clearing corporation" as defined in Section 8-102(3) of the Uniform Commercial
Code of the State of New York and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
-30-
"Designated Sub-Servicer": Any Sub-Servicer set forth on Schedule III
hereto and any successor to such Sub-Servicer set forth on Schedule III under
the related Designated Sub-Servicer Agreement.
"Designated Sub-Servicer Agreement": Any Sub-Servicing Agreement
between a Designated Sub-Servicer and a Master Servicer.
"Determination Date": With respect to any Distribution Date, the fifth
(5th) Business Day preceding such Distribution Date.
"Directly Operate": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale or lease,
the performance of any construction work thereon or any use of such REO Property
in a trade or business conducted by REMIC I other than through an Independent
Contractor; provided, however, that the Trustee (or the applicable Special
Servicer or any Sub-Servicer on behalf of the Trustee) shall not be considered
to Directly Operate an REO Property solely because the Trustee (or the
applicable Special Servicer or any Sub-Servicer on behalf of the Trustee)
establishes rental terms, chooses tenants, enters into or renews leases, deals
with taxes and insurance, or makes decisions as to repairs or capital
expenditures with respect to such REO Property.
"Discount Rate": As defined in Section 4.01(d).
"Disqualified Non-United States Tax Person": With respect to any Class
R Certificate, any Non-United States Tax Person or agent thereof other than: (1)
a Non-United States Tax Person that (a) holds such Class R Certificate and, for
purposes of Treasury regulation section 1.860G-3(a)(3), is subject to tax under
Section 882 of the Code, (b) certifies that it understands that, for purposes of
Treasury regulation section 1.860E-1(c)(4)(ii), as a holder of such Class R
Certificate for United States federal income tax purposes, it may incur tax
liabilities in excess of any cash flows generated by such Class R Certificate
and intends to pay taxes associated with holding such Class R Certificate, and
(c) has furnished the Transferor and the Trustee with an effective IRS Form
W-8ECI or successor form and has agreed to update such form as required under
the applicable Treasury regulations; or (2) a Non-United States Tax Person that
has delivered to the Transferor, the Trustee and the Certificate Registrar an
opinion of nationally recognized tax counsel to the effect that (x) the Transfer
of such Class R Certificate to it is in accordance with the requirements of the
Code and the regulations promulgated thereunder and (y) such Transfer of such
Class R Certificate will not be disregarded for United States federal income tax
purposes.
-31-
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for ▇▇▇▇▇▇▇ Mac, a majority of its board of directors is not
selected by any such governmental unit), (ii) a foreign government,
international organization, or any agency or instrumentality of either of the
foregoing, (iii) any organization (except certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code or (v)
any other Person so designated by the Tax Administrator, based upon an Opinion
of Counsel delivered to the Tax Administrator to the effect that the holding of
an Ownership Interest in a Class R Certificate by such Person may cause the
Trust or any Person having an Ownership Interest in any Class of Certificates,
other than such Person, to incur a liability for any federal tax imposed under
the Code that would not otherwise be imposed but for the Transfer of an
Ownership Interest in a Class R Certificate to such Person. The terms "United
States", "State" and "international organization" shall have the meanings set
forth in Section 7701 of the Code or successor provisions.
"Disqualified Partnership": Any domestic entity classified as a
partnership under the Code if any of its beneficial owners are Disqualified
Non-United States Tax Persons.
"Distributable Certificate Interest": With respect to any Class of
Regular Interest Certificates for any Distribution Date, an amount of interest
equal to the amount of Accrued Certificate Interest in respect of such Class of
Certificates for the related Interest Accrual Period, reduced (to not less than
zero) by that portion, if any, of the Net Aggregate Prepayment Interest
Shortfall for such Distribution Date allocated to such Class of Certificates as
provided below. A portion of the Net Aggregate Prepayment Interest Shortfall, if
any, for each Distribution Date shall be allocated to each Class of Principal
Balance Certificates in an amount equal to the product of (i) the amount of such
Net Aggregate Prepayment Interest Shortfall and (ii) a fraction, the numerator
of which is the Accrued Certificate Interest for such Class of Principal Balance
Certificates for such Distribution Date and the denominator of which is the
aggregate amount of Accrued Certificate Interest for all Classes of Principal
Balance Certificates for such Distribution Date. No portion of any Net Aggregate
Prepayment Interest Shortfall for any Distribution Date shall be allocated to
the Class X-1 or Class X-2 Certificates.
-32-
"Distribution Account": The segregated account or accounts created and
maintained by the Certificate Administrator on behalf of the Trustee, pursuant
to Section 3.04(b), in trust for the Certificateholders, which shall be entitled
"▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Certificate Administrator, on behalf of
LaSalle Bank National Association [or the name of any successor Trustee], as
Trustee, in trust for the registered holders of Bear ▇▇▇▇▇▇▇ Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, 2002-PBW1,
Distribution Account".
"Distribution Date": The 11th day of any month, or if such 11th day is
not a Business Day, the Business Day immediately following such 11th day,
commencing in November 2002.
"Document Defect": As defined in Section 2.03(a).
"Due Date": With respect to (i) any Mortgage Loan on or prior to its
Stated Maturity Date, the day of the month set forth in the related Mortgage
Note on which each Monthly Payment on such Mortgage Loan is scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date, the day of the
month set forth in the related Mortgage Note on which each Monthly Payment on
such Mortgage Loan had been scheduled to be first due; and (iii) any REO
Mortgage Loan, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment on the related Mortgage Loan had been scheduled to be
first due.
"▇▇▇▇▇": The Electronic Data Gathering, Analysis, and Retrieval System
of the Commission, which is the computer system for the receipt, acceptance,
review and dissemination of documents submitted to the Commission in electronic
format.
"Eligible Account": Any of (i) an account maintained with a federal or
state chartered depository institution or trust company, the long-term deposit
or long-term unsecured debt obligations of which are rated no less than "Aa2" by
Moody's and "AA-" by Fitch (if the deposits are to be held in the account for
more than thirty (30) days), or the short-term deposit or short-term unsecured
debt obligations of which are rated no less than "P-1" by Moody's and "F-1" by
Fitch (if the deposits are to be held in the account for thirty (30) days or
less), in any event at any time funds are on deposit therein, or (ii) a
segregated trust account maintained with the trust department of a federal or
state chartered depository institution or trust company (which may include the
Certificate Administrator or the Trustee) acting in its fiduciary capacity, and
which, in either case, has a combined capital and surplus of at least
$50,000,000 and is subject to
-33-
supervision or examination by federal or state authority and to regulations
regarding fiduciary funds on deposit similar to Title 12 of the Code of Federal
Regulations Section 9.10(b), or (iii) for so long as WFB serves as a Master
Servicer under this Agreement, an account maintained with WFB or ▇▇▇▇▇ Fargo
Bank Iowa, N.A., each a wholly-owned subsidiary of ▇▇▇▇▇ Fargo & Co., provided
that subsidiary's or its parent's (A) commercial paper, short-term unsecured
debt obligations or other short-term deposits are rated at least "P-1" by
Moody's and "F-1" by Fitch (if the deposits are to be held in the account for 30
days or less) or (B) long-term unsecured debt obligations are rated at least
"Aa3" by Moody's and "A+" by Fitch (if the deposits are to be held in the
account for more than 30 days); or (iv) an account maintained with any other
insured depository institution that is acceptable to each Rating Agency (as
evidenced by written confirmation to the Trustee from each Rating Agency that
the use of such account would not, in and of itself, result in an Adverse Rating
Event with respect to any Class of Rated Certificates).
"Emergency Advance": Any Servicing Advance, whether or not it is a
Servicing Advance that, pursuant hereto, the applicable Special Servicer is
required to make or to request a Master Servicer to make, that must be made
within 5 Business Days of such Special Servicer's becoming aware that it must be
made in order to avoid any material penalty, any material harm to a Mortgaged
Property or any other material adverse consequence to the Trust Fund.
"Environmental Insurance Policy": With respect to any Mortgaged
Property or REO Property, any insurance policy covering pollution conditions
and/or other environmental conditions that is maintained from time to time in
respect of such Mortgaged Property or REO Property, as the case may be, for the
benefit of, among others, the Trustee on behalf of the Certificateholders.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment": Any payment received by a Master Servicer or Special
Servicer for the account of any Borrower for application toward the payment of
real estate taxes, assessments, insurance premiums (including with respect to
any Environmental Insurance Policy), ground rents (if applicable) and similar
items in respect of the related Mortgaged Property.
"Euroclear": The Euroclear System or any successor.
"Event of Default": As defined in Section 7.01(a).
-34-
"Excess Liquidation Proceeds": The excess, if any, of (a) the Net
Liquidation Proceeds from the sale or liquidation of a Specially Serviced
Mortgage Loan that is a Pooled Mortgage Loan or the related REO Property, over
(b) the sum of (i) the amount needed to pay all principal, interest (including
Additional Interest (if applicable) and Default Interest), Prepayment Premiums
or Yield Maintenance Charges (as applicable) and late payment charges payable
with respect to such Pooled Mortgage Loan or related REO Pooled Mortgage Loan in
full, (ii) any other fees that would constitute Additional Master Servicing
Compensation and/or Additional Special Servicing Compensation, (iii) any related
unreimbursed Servicing Advances, (iv) all unpaid Advance Interest on any related
Advances, (v) any related Liquidation Fee and/or Special Servicing Fees paid or
payable in respect of such Specially Serviced Mortgage Loan or the related REO
Pooled Mortgage Loan, (vi) any other Additional Trust Fund Expenses paid or
payable in respect of such Pooled Mortgage Loan or REO Property and (vii) in the
case of the RREEF Textron Pooled Mortgage Loan, any portion of such Net
Liquidation Proceeds payable to the RREEF Textron B-Note Holder.
"Excess Liquidation Proceeds Account": The segregated account created
and maintained by the Certificate Administrator in the name of the Trustee
pursuant to Section 3.04(d) in trust for the Certificateholders, which shall be
entitled "[name of Trustee], as Trustee, in trust for the registered holders of
Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, 2002-PBW1, Excess Liquidation Proceeds Account".
"Excess Servicing Fees": With respect to each Mortgage Loan (and
successor REO Mortgage Loan), that portion of the Master Servicing Fees that
accrue at a per annum rate equal to the Excess Servicing Fee Rate.
"Excess Servicing Fee Rate": With respect to each Mortgage Loan (and
successor REO Mortgage Loan), a rate per annum equal to (i) in the case of each
PMCF Mortgage Loan, two basis points, and (ii) in the case of each BSCMI
Mortgage Loan, each BSFI Mortgage Loan and each WFB Mortgage Loan, zero basis
points.
"Excess Servicing Fee Right": With respect to each Mortgage Loan (and
successor REO Mortgage Loan), the right to receive Excess Servicing Fees. In the
absence of any transfer of the Excess Servicing Fee Right, the related Master
Servicer shall be the owner of such Excess Servicing Fee Right.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
-35-
"Exemption-Favored Party": Any of (i) Bear, ▇▇▇▇▇▇▇ & Co. Inc., (ii)
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, (iii) any Person directly or
indirectly, through one or more intermediaries, controlling, controlled by or
under common control with Bear, ▇▇▇▇▇▇▇ & Co. Inc., and (iv) any member of any
underwriting syndicate or selling group of which any Person described in clauses
(i), (ii) and (iii) is a manager or co-manager with respect to a Class of
Certificates that is investment grade rated by at least one Rating Agency.
"Fair Value": With respect to any Specially Designated Defaulted Pooled
Mortgage Loan, the amount that, in the applicable Special Servicer's reasonable
judgment, taking into account the factors set forth in the first sentence of the
second paragraph of Section 3.18(b) and such other factors as such Special
Servicer reasonably deems appropriate, is the fair value of such Mortgage Loan.
"▇▇▇▇▇▇ ▇▇▇": The Federal National Mortgage Association or any
successor.
"FDIC": The Federal Deposit Insurance Corporation or any successor.
"Final Distribution Date": The Distribution Date on which the final
distribution is to be made with respect to the Certificates in connection with a
termination of the Trust Fund pursuant to Article IX.
"Final Recovery Determination": A determination by the applicable
Special Servicer with respect to any Specially Serviced Mortgage Loan or REO
Property that there has been a recovery of all Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds and other payments or recoveries that such
Special Servicer has determined, in accordance with the Servicing Standard, will
be ultimately recoverable; provided that the term Final Recovery Determination
shall not apply to: (i) a Mortgage Loan that was paid in full (including by a
mezzanine lender on behalf of the related Borrower in connection with a Mortgage
Loan default, as set forth in the related intercreditor agreement) or (ii) a
Mortgage Loan or REO Property, as the case may be, that was purchased by (a) any
Pooled Mortgage Loan Seller pursuant to the related Pooled Mortgage Loan
Purchase Agreement, (b) a Purchase Option Holder or its assignee pursuant to
Section 3.18, (d) any Controlling Class Certificateholder(s), a Master Servicer
or the General Special Servicer pursuant to Section 9.01 or (e) the RREEF
Textron B-Note Holder pursuant to Section 3.28.
"Fiscal Agent": ABN AMRO Bank N.V., a Netherlands banking corporation,
or any successor appointed as provided herein.
-36-
"Fiscal Agent Agreement": As defined in Section 8.13.
"Fitch": Fitch, Inc. or its successor in interest. If neither such
rating agency nor any successor remains in existence, "Fitch" shall be deemed to
refer to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the other parties hereto, and specific ratings of Fitch, Inc. herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated. References herein to "applicable rating category" (other than such
references to "highest applicable rating category") shall, in the case of Fitch,
be deemed to refer to such applicable rating category of Fitch, without regard
to any plus or minus or other comparable rating qualification.
"▇▇▇▇▇▇▇ Mac": The Federal Home Loan Mortgage Corporation or any
successor.
"GAAP": Generally accepted accounting principles in the United States.
"General Special Servicer": ARCap, in its capacity as special servicer
with respect to the Mortgage Pool (exclusive of the RREEF Textron Mortgage Loan
Pair) and any related REO Properties hereunder, or any successor special
servicer with respect to the Mortgage Pool (exclusive of the RREEF Textron
Mortgage Loan Pair) and any related REO Properties appointed as provided herein.
"Global Certificates": The Rule 144A Global Certificates and the
Regulation S Global Certificates, collectively.
"Grantor Trust": A grantor trust as defined under Subpart E of Part 1
of Subchapter J of the Code.
"Grantor Trust Pool": Either of Grantor Trust V or Grantor Trust R.
"Grantor Trust Provisions": Subpart E of Subchapter J of the Code,
including Treasury regulation section 301.7701-4(c)(2).
"Grantor Trust R": The Grantor Trust designated as such in Section
2.17(b).
"Grantor Trust V": The Grantor Trust designated as such in Section
2.17(a).
-37-
"Ground Lease": The ground lease pursuant to which any Borrower holds a
leasehold interest in the related Mortgaged Property, together with any
estoppels or other agreements executed and delivered by the ground lessor in
favor of the lender under the related Mortgage Loans.
"Group Environmental Insurance Policy": Any Environmental Insurance
Policy that is maintained from time to time in respect of more than one
Mortgaged Property or REO Property.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including those so identified pursuant to
CERCLA or any other federal, state or local environmental related laws and
regulations now existing or hereafter enacted, and specifically including
asbestos and asbestos-containing materials, polychlorinated biphenyls ("PCBs"),
radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"Independent": When used with respect to any specified Person, any such
Person who (i) is in fact independent of the Depositor, each Pooled Mortgage
Loan Seller, each Master Servicer, each Special Servicer, the Certificate
Administrator, the Tax Administrator, the Trustee, the Fiscal Agent, the
Controlling Class Representative and any and all Affiliates thereof, (ii) does
not have any direct financial interest in or any material indirect financial
interest in any of the Depositor, any Pooled Mortgage Loan Seller, either Master
Servicer, either Special Servicer, the Certificate Administrator, the Tax
Administrator, the Trustee, the Fiscal Agent, the Controlling Class
Representative or any Affiliate thereof, and (iii) is not connected with the
Depositor, any Pooled Mortgage Loan Seller, either Master Servicer, the Special
Servicer, the Certificate Administrator, the Tax Administrator, the Trustee, the
Fiscal Agent, the Controlling Class Representative or any Affiliate thereof as
an officer, employee, promoter, underwriter, trustee, partner, director or
Person performing similar functions; provided, however, that a Person shall not
fail to be Independent of the Depositor, any Pooled Mortgage Loan Seller, either
Master Servicer, the Special Servicer, the Trustee, the Fiscal Agent, the
Controlling Class Representative or any Affiliate thereof merely because such
Person is the beneficial owner of 1% or less of any class of securities issued
by the Depositor, such Pooled Mortgage Loan Seller, such Master Servicer, such
Special Servicer, the Trustee, such Fiscal Agent, the Controlling Class
Representative or any such Affiliate thereof, as the case may be, provided that
such ownership constitutes less than 1% of the total assets owned by such
Person.
-38-
"Independent Contractor": (a) Any Person that would be an "independent
contractor" with respect to any REMIC Pool within the meaning of Section
856(d)(3) of the Code if such REMIC Pool were a real estate investment trust
(except that the ownership test set forth in that section shall be considered to
be met by any Person that owns, directly or indirectly, 35% or more of any Class
of Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee or
the Trust, delivered to the Trustee), provided that (i) the Trust does not
receive or derive any income from such Person and (ii) the relationship between
such Person and the Trust is at arm's length, all within the meaning of Treasury
regulation section 1.856-4(b)(5); or (b) any other Person upon receipt by the
Trustee of an Opinion of Counsel, which shall be at no expense to the Trustee or
the Trust, to the effect that the taking of any action in respect of any REO
Property by such Person, subject to any conditions therein specified, that is
otherwise herein contemplated to be taken by an Independent Contractor will not
cause such REO Property to cease to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code, or cause any income realized in
respect of such REO Property to fail to qualify as Rents from Real Property.
"Individual Accredited Investor": An "accredited investor" as defined
in any of paragraphs (5) and (6) of Rule 501(a) of the Securities Act that is a
person involved in the organization or operation of the Trust; provided that (i)
the offer and sale of the applicable Certificates to such investor is made
solely within the State of New York, (ii) the applicable Certificates are
Non-Registered Certificates and (iii) such investor is a director, officer or
employee of an Underwriter that was an initial purchaser from the Depositor of
all or a portion of the Class of Certificates to which such applicable
Certificates belong.
"Initial Pool Balance": The aggregate Cut-off Date Principal Balance of
all the Original Pooled Mortgage Loans.
"Initial Resolution Period": As defined in Section 2.03(b).
"Institutional Accredited Investor": An "accredited investor" as
defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the
Securities Act or any entity in which all of the equity owners come within such
paragraphs.
"Insurance Policy": With respect to any Mortgage Loan or REO Property,
any hazard insurance policy, terrorism insurance policy, flood insurance policy,
title insurance policy, earthquake insurance policy, Environmental Insurance
Policy, business interruption insurance policy or other insurance policy
-39-
that is maintained from time to time in respect of such Mortgage Loan (or the
related Mortgaged Property) or such REO Property, as the case may be.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to the
extent such proceeds actually received by the Trust or a Master Servicer or
Special Servicer on its behalf are not applied to the restoration of the related
Mortgaged Property or REO Property or released to the related Borrower or any
other third-party pursuant to the terms of the related Mortgage or lease, in
accordance with the Servicing Standard.
"Insured Environmental Event": As defined in Section 3.07(c).
"Interest Accrual Basis": The basis on which interest accrues in
respect of any Mortgage Loan, any REMIC I Regular Interest, any REMIC II Regular
Interest, any Class of Regular Interest Certificates or any particular REMIC III
Component of a Class of Interest Only Certificates, in each case consisting of
one of the following: (i) a 30/360 Basis; or (ii) an Actual/360 Basis.
"Interest Accrual Period": With respect to any REMIC I Regular
Interest, any REMIC II Regular Interest, any Class of Regular Interest
Certificates or any particular REMIC III Component of a Class of Interest Only
Certificates, for any Distribution Date, the calendar month immediately
preceding the month in which such Distribution Date occurs.
"Interest Only Certificates": Collectively, the Class X-1 and Class X-2
Certificates.
"Interest Reserve Account": The segregated account (or sub-account of
the Distribution Account) created and maintained by the Certificate
Administrator on behalf of the Trustee, pursuant to Section 3.04(c), in trust
for the Certificateholders, which shall be entitled "▇▇▇▇▇ Fargo Bank Minnesota,
N.A., as Certificate Administrator, on behalf of LaSalle Bank National
Association [or the name of any successor Trustee], as Trustee, in trust for the
registered holders of Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, 2002-PBW1, Interest Reserve
Account".
"Interest Reserve Amount": With respect to each Pooled Mortgage Loan
that is an Interest Reserve Loan (or the related successor REO Pooled Mortgage
Loan), for any Distribution Date that occurs during February of 2003 or February
of any year thereafter or during January of 2003 or January of any year
thereafter that is not a leap year, an amount equal to one day's interest
accrued at the related Net Mortgage Rate on the related Stated Principal Balance
-40-
as of the end of the Collection Period related to such Distribution Date (but
prior to giving effect to the application of any amounts due on the Due Date
occurring in such Collection Period), to the extent that a Monthly Payment is
received in respect of such Interest Reserve Loan for the related Due Date in
the same month as such Distribution Date on or before the related Master
Servicer Remittance Date or a P&I Advance is made under this Agreement in
respect thereof for such Due Date by such Distribution Date. For purposes of
calculating Interest Reserve Amounts, the Net Mortgage Rate for each Interest
Reserve Loan shall be the Net Mortgage Rate as of the Closing Date (without
regard to any modifications, extensions, waivers or amendments of such Pooled
Mortgage Loan subsequent to the Closing Date, whether entered into by the
applicable Master Servicer or the applicable Special Servicer or in connection
with any bankruptcy, insolvency or other similar proceeding involving the
related Borrower).
"Interest Reserve Loan": Any Pooled Mortgage Loan that is an Actual/360
Mortgage Loan (or the successor REO Pooled Mortgage Loan).
"Investment Account": Any Collection Account, the RREEF Textron B-Note
Account, any Servicing Account, any Reserve Account and any REO Account.
"Investment Company Act": The Investment Company Act of 1940, as
amended.
"Investment Grade Certificate": As of any date of determination, a
Certificate that is rated in one of the four highest generic rating categories
by at least one Rating Agency.
"IRS": The Internal Revenue Service or any successor.
"Issue Price": With respect to each Class of Certificates, the "issue
price" as defined in the Code and Treasury regulations promulgated thereunder.
"LaSalle": LaSalle Bank National Association or its successor in
interest.
"Late Collections": (a) With respect to any Pooled Mortgage Loan, all
amounts received by or on behalf of the Trust thereon during any Collection
Period, whether as payments, Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds or otherwise, which represent late collections of the
principal and/or interest portions of a Monthly Payment (other than a Balloon
Payment) or an Assumed Monthly Payment in respect of such Pooled Mortgage
-41-
Loan due or deemed due on a Due Date in a previous Collection Period or on a Due
Date during or prior to October 2002, and not previously recovered; and (b) with
respect to any REO Pooled Mortgage Loan, all amounts received by or on behalf of
the Trust in connection with the related REO Property during any Collection
Period, whether as Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds, REO Revenues or otherwise, which represent late collections of the
principal and/or interest portions of a Monthly Payment (other than a Balloon
Payment) or an Assumed Monthly Payment in respect of the predecessor Pooled
Mortgage Loan or the principal and/or interest portions of an Assumed Monthly
Payment in respect of such REO Pooled Mortgage Loan due or deemed due on a Due
Date in a previous Collection Period, and not previously recovered. Late
Collections do not include Default Charges.
"Latest Possible Maturity Date": With respect to any REMIC I Regular
Interest, any REMIC II Regular Interest, any Class of Regular Interest
Certificates or any particular REMIC III Component of a Class of Interest Only
Certificates, the "latest possible maturity date" thereof, calculated solely for
purposes of satisfying Treasury regulation section 1.860G-1(a)(4)(iii).
"Letter of Credit": With respect to any Mortgage Loan, any third-party
letter of credit delivered by or at the direction of the related Borrower
pursuant to the terms of such Mortgage Loan in lieu of the establishment of, or
deposit otherwise required to be made into, a Reserve Fund or otherwise pledged
or assigned by the related Borrower as Additional Collateral.
"Liquidation Event": (a) With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full, (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan, (iii) such Mortgage
Loan is repurchased or replaced by a Pooled Mortgage Loan Seller pursuant to the
related Pooled Mortgage Loan Purchase Agreement, as contemplated by Section
2.03, (iv) such Mortgage Loan is purchased by the General Special Servicer, the
Majority Controlling Class Certificateholder(s) or any assignee of either of
them pursuant to Section 3.18, (v) such Mortgage Loan is purchased by any
Controlling Class Certificateholder(s), a Master Servicer or the General Special
Servicer pursuant to Section 9.01, (vi) such Mortgage Loan is acquired by the
Sole Certificateholder(s) in exchange for all of the Certificates pursuant to
Section 9.01; or (vii) such Mortgage Loan is acquired by the RREEF Textron Class
B Note Holder pursuant to Section 3.28 or such Mortgage Loan is paid off by the
holder of a related mezzanine loan on behalf of the related Borrower in
connection with a Mortgage Loan default, if so permitted and set forth in the
related intercreditor agreement; and (b) with respect to any REO Property (and
the related REO Mortgage Loan), any of the following events: (i) a
-42-
Final Recovery Determination is made with respect to such REO Property, (ii)
such REO Property is purchased by a Master Servicer, the General Special
Servicer or any Controlling Class Certificateholder(s) pursuant to Section 9.01
or (iii) such REO Property is acquired by the Sole Certificateholder(s) in
exchange for all of the Certificates pursuant to Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary
"out-of-pocket" costs and expenses due and owing (but not otherwise covered by
Servicing Advances) in connection with the liquidation of any Specially Serviced
Mortgage Loan or REO Property pursuant to Section 3.09 or Section 3.18
(including legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": The fee designated as such in, and payable to the
applicable Special Servicer in connection with certain Liquidation Events in
respect of a Specially Serviced Mortgage Loan or an REO Property pursuant to,
Section 3.11(c).
"Liquidation Fee Rate": With respect to each Specially Serviced
Mortgage Loan or REO Property as to which a Liquidation Fee is payable, 1.0%.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds, Condemnation Proceeds and REO Revenues) actually received by the Trust
in connection with: (i) the liquidation of a Mortgaged Property or other
collateral constituting security for a defaulted Mortgage Loan, through
trustee's sale, foreclosure sale, REO Disposition or otherwise, exclusive of any
portion thereof required to be released to the related Borrower in accordance
with applicable law and/or the terms and conditions of the related Mortgage Note
and Mortgage; (ii) the realization upon any deficiency judgment obtained against
a Borrower; (iii) the purchase of a Specially Designated Defaulted Pooled
Mortgage Loan by the applicable Special Servicer, the Majority Controlling Class
Certificateholder(s) or any assignee of either of them pursuant to Section 3.18;
(iv) the repurchase or replacement of a Pooled Mortgage Loan by a Pooled
Mortgage Loan Seller pursuant to the related Pooled Mortgage Loan Purchase
Agreement; (v) the purchase of a Pooled Mortgage Loan or REO Property by a
Master Servicer, the General Special Servicer and/or any Controlling Class
Certificateholder(s) pursuant to Section 9.01; (vi) the acquisition of any
Pooled Mortgage Loan or REO Property by the Sole Certificateholder(s) in
exchange for all the Certificates pursuant to Section 9.01; or (vii) such
Mortgage Loan is acquired by the RREEF Textron Class B Note Holder pursuant to
Section 3.28.
-43-
"Majority Controlling Class Certificateholder(s)": As of any date of
determination, any single Holder or group of Holders of Certificates
representing a majority of the Voting Rights allocated to the Class of Principal
Balance Certificates that constitutes, or the Classes of Principal Balance
Certificates that constitute, the Controlling Class as of such date of
determination.
"Master Servicer": With respect to any Mortgage Loan and any REO
Property acquired in respect thereof, either (a) if such Mortgage Loan is a PMCF
Mortgage Loan or the RREEF Textron B-Note Mortgage Loan, PAR, or any successor
thereto appointed as provided herein, or (b) if such Mortgage Loan is a BSCMI
Mortgage Loan, a BSFI Mortgage Loan or a WFB Mortgage Loan, WFB, or any
successor thereto appointed as provided herein. Any reference herein to a
"Master Servicer" hereunder (including Articles VI and VII hereof) shall, if
such Master Servicer is the one described by clause (a) of this definition, also
be construed to refer to the Servicer Report Administrator to the extent of the
rights granted to and obligations imposed on the Servicer Report Administrator
under this Agreement.
"Master Servicer Remittance Amount": With respect to either Master
Servicer for any Master Servicer Remittance Date, an amount equal to (a) all
amounts on deposit in such Master Servicer's Collection Account as of 11:00
a.m., New York City time, on such Master Servicer Remittance Date, net of (b)
any portion of the amounts described in clause (a) of this definition that
represents one or more of the following: (i) collected Monthly Payments with
respect to any Pooled Mortgage Loan that are due on a Due Date following the end
of the related Collection Period, (ii) any payments of principal (including
Principal Prepayments) and interest (including Post-ARD Additional Interest),
Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds received with
respect to any Pooled Mortgage Loan or REO Property after the end of the related
Collection Period, (iii) any Prepayment Premiums and/or Yield Maintenance
Charges received with respect to any Pooled Mortgage Loan or successor REO
Mortgage Loan after the end of the related Collection Period, (iv) any Excess
Liquidation Proceeds, (v) any amounts payable or reimbursable to any Person from
such Collection Account pursuant to clauses (ii) through (xix) of Section
3.05(a), and (vi) any amounts deposited in such Collection Account in error;
provided that the Master Servicer Remittance Amount with respect to each Master
Servicer for the Master Servicer Remittance Date that occurs in the same
calendar month as the anticipated Final Distribution Date shall be calculated
without regard to clauses (b)(i), (b)(ii), (b)(iii) and (b)(iv) of this
definition.
"Master Servicer Remittance Date": The Business Day immediately
preceding each Distribution Date.
-44-
"Master Servicing Fee": With respect to each Mortgage Loan and REO
Mortgage Loan, the fee designated as such and payable to the applicable Master
Servicer pursuant to Section 3.11(a).
"Master Servicing Fee Rate": With respect to (i) each Pooled Mortgage
Loan and REO Pooled Mortgage Loan, the rate per annum specified as the "Master
Servicing Fee Rate" on the Pooled Mortgage Loan Schedule and (ii) the RREEF
Textron B-Note Mortgage Loan and any related successor REO Mortgage Loan, such
reasonable rate as is mutually acceptable to the applicable Master Servicer and
the RREEF Textron B-Note Holder.
"Material Breach": With respect to any Pooled Mortgage Loan, any Breach
that materially and adversely affects the interests of the Certificateholders,
or any of them, with respect to the affected Pooled Mortgage Loan, including but
not limited to a material and adverse effect on any of the distributions payable
with respect to any of the Certificates or on the value of such Certificates.
"Material Document Defect": With respect to any Pooled Mortgage Loan,
any Document Defect that materially and adversely affects the interests of the
Certificateholders, or any of them, with respect to the affected Pooled Mortgage
Loan, including but not limited to a material and adverse effect on any of the
distributions payable with respect to any of the Certificates or on the value of
such Certificates. Notwithstanding the foregoing, the absence of a Specially
Designated Mortgage Loan Document following the date on which such Specially
Designated Mortgage Loan Document is required to be delivered to the Trustee as
described in Section 2.01(d) shall also constitute a Material Document Defect.
"▇▇▇▇▇▇▇ Bank": ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA or any successor thereto.
-45-
"▇▇▇▇▇▇▇ Bank Mortgage Loan Purchase Agreement": That certain mortgage
loan purchase agreement dated as of October 3, 2002, between ▇▇▇▇▇▇▇ Bank as
seller and the Depositor as purchaser.
"Modified Mortgage Loan": Any Pooled Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the
applicable Special Servicer pursuant to Section 3.20 in a manner that:
(a) materially affects the amount or timing of any payment of principal
or interest due thereon (other than, or in addition to, bringing Monthly
Payments current with respect to such Pooled Mortgage Loan);
(b) except as expressly contemplated by the related Mortgage Loan
Documents, results in a release of the lien of the Mortgage on any material
portion of the related Mortgaged Property without a corresponding Principal
Prepayment in an amount, or the delivery of substitute real property
collateral with a fair market value (as is), that is not less than the fair
market value (as is) of the property to be released, as determined by an
Appraisal delivered to the applicable Special Servicer (at the expense of
the related Borrower and upon which such Special Servicer may conclusively
rely); or
(c) in the reasonable judgment of the applicable Special Servicer,
otherwise materially impairs the security for such Pooled Mortgage Loan or
materially reduces the likelihood of timely payment of amounts due thereon.
"Monthly Payment": With respect to any Mortgage Loan, as of any Due
Date, the scheduled monthly debt service payment (or, in the case of an ARD
Mortgage Loan after its Anticipated Repayment Date, the monthly debt service
payment required to be paid on a current basis) on such Mortgage Loan that is
actually payable by the related Borrower from time to time under the terms of
the related Mortgage Note (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Borrower or by reason of a modification, extension, waiver or amendment granted
or agreed to by the applicable Special Servicer pursuant to Section 3.20,
including any Balloon Payment payable in respect of such Mortgage Loan on such
Due Date; provided that the Monthly Payment due in respect of any Mortgage Loan
shall not include Default Interest; and provided, further, that the Monthly
Payment due in respect of any ARD Mortgage Loan after its Anticipated Repayment
Date shall not include Additional Interest.
-46-
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc. or its successor in
interest. If neither such rating agency nor any successor remains in existence,
"Moody's" shall be deemed to refer to such other nationally recognized
statistical rating agency or other comparable Person designated by the
Depositor, notice of which designation shall be given to the other parties
hereto, and specific ratings of ▇▇▇▇▇'▇ Investors Service, Inc. herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated. References herein to "applicable rating category" (other than such
references to "highest applicable rating category") shall, in the case of
Moody's, be deemed to refer to such applicable rating category of Moody's,
without regard to any plus or minus or other comparable rating qualification.
"Mortgage": With respect to any Mortgage Loan, separately and
collectively, as the context may require, each mortgage, deed of trust, deed to
secure debt or similar document that secures the related Mortgage Note and
creates a lien on the related Mortgaged Property.
"Mortgage File": With respect to any Pooled Mortgage Loan, the
following documents collectively:
(i) the original executed Mortgage Note, endorsed (either on the
face thereof or pursuant to a separate allonge) "Pay to the order of
LaSalle Bank National Association, as Trustee for the registered
holders of Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, 2002-PBW1, without recourse" or in
blank, and further showing a complete, unbroken chain of endorsement
from the most recent endorsee prior to the Trustee or, if none, by the
originator; or alternatively, if the original executed Mortgage Note
has been lost, a lost note affidavit and indemnity with a copy of such
Mortgage Note;
(ii) an original or a copy of the Mortgage, together with
originals or copies of any and all intervening assignments thereof, in
each case (unless the particular item has not been returned from the
applicable recording office) with evidence of recording indicated
thereon; provided that if such original Mortgage cannot be delivered
with evidence of recording thereon on or prior to the 90th day
following the Closing Date because of a delay caused by the public
recording office where such original Mortgage has been delivered for
recordation, or because the public recording office retains the
original or because such original Mortgage has been
-47-
lost, there shall be delivered to the Trustee or a Custodian on its
behalf a true and correct copy of such Mortgage, together with (A) in
the case of a delay caused by the public recording office, an Officer's
Certificate of the applicable Pooled Mortgage Loan Seller stating that
such original Mortgage has been sent to the appropriate public
recording official for recordation or (B) in the case of an original
Mortgage that has been lost after recordation or retained by the
appropriate public recording office, a certification by the appropriate
county recording office where such Mortgage is recorded that such copy
is a true and complete copy of the original recorded Mortgage;
(iii) the original or a copy of any related Assignment of Leases
(if any such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening assignments
thereof showing a complete chain of assignment from the originator of
the Mortgage Loan to the most recent assignee of record thereof prior
to the Trustee, if any, in each case (unless the particular item has
not been returned from the applicable recorder) with evidence of
recording thereon;
(iv) an original executed assignment, in recordable form (except
for recording information not yet available if the instrument being
assigned has not been returned from the applicable recording office),
of (A) the Mortgage and (B) any related Assignment of Leases (if such
item is a document separate from the Mortgage), in favor of "LaSalle
Bank National Association, in its capacity as Trustee for the
registered holders of Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, 2002-PBW1" (or, in each
case, a copy thereof, certified to be the copy of such assignment
submitted for recording);
(v) an original or copy of any related Security Agreement (if
such item is a document separate from the Mortgage) and, if applicable,
the originals or copies of any intervening assignments thereof showing
a complete chain of assignment from the originator of the Mortgage Loan
to the most recent assignee of record thereof prior to the Trustee, if
any;
(vi) an original assignment of any related Security Agreement (if
such item is a document separate from the
-48-
Mortgage) executed by the most recent assignee of record thereof prior
to the Trustee or, if none, by the originator, in favor of in favor of
"LaSalle Bank National Association, in its capacity as Trustee for the
registered holders of Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, 2002-PBW1", which
assignment may (in any case) be included as part of the corresponding
assignment of Mortgage referred to in clause (iv) above;
(vii) originals or copies of any assumption, modification,
written assurance, consolidation, extension and substitution
agreements, if any, with evidence of recording thereon if the
applicable document or instrument being modified or assumed, was
recorded (unless the particular item has not been returned from the
applicable recording office), in those instances where the terms or
provisions of the Mortgage, Mortgage Note or any related security
document have been materially modified or the Mortgage Loan has been
assumed;
(viii) the original or a copy of the policy or certificate of
lender's title insurance issued in connection with such Mortgage Loan
(or, if the policy has not yet been issued, an original or copy of a
written commitment "marked-up" at the closing of such Mortgage Loan,
interim binder or the pro forma title insurance policy evidencing a
binding commitment to issue such policy);
(ix) (A) filed copies (with evidence of filing) of any prior
effective UCC Financing Statements in favor of the originator of such
Mortgage Loan or in favor of any assignee prior to the Trustee (but
only to the extent the related Pooled Mortgage Loan Seller had
possession of such UCC Financing Statements prior to the Closing Date)
and (B) an original UCC-2 or UCC-3 assignment thereof, as appropriate,
in form suitable for filing, in favor of "LaSalle Bank National
Association, in its capacity as Trustee for the registered holders of
Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, 2002-PBW1";
(x) if a material portion of the interest of the Borrower in the
related Mortgaged Property consists of a leasehold interest, the
original or a copy of the Ground Lease relating to such Mortgage Loan,
together with a notice to the related ground lessor
-49-
of the transfer of the Mortgage Loan to the Trust or the Trustee on its
behalf;
(xi) any original documents not otherwise described in the
preceding clauses of this definition relating to, evidencing or
constituting Additional Collateral (including any such documents in the
form of a Letter of Credit) (provided that the originals of any such
Letter of Credit shall be delivered to the applicable Master Servicer
with a copy to be contained in the Mortgage File) and, if applicable,
the originals or copies of any intervening assignments thereof;
(xii) an original or copy of the loan agreement, if any, related
to such Mortgage Loan;
(xiii) an original or a copy of the related guaranty of payment
under such Mortgage Loan, if any;
(xiv) an original or copy of the lock-box agreement or cash
management agreement relating to such Mortgage Loan, if any;
(xv) an original or copy of the environmental indemnity from the
related Borrower or other third party, if any;
(xvi) an original or copy of any intercreditor agreement or
similar agreement relating to the Mortgage Loan;
(xvii) an original or copy of any management agreement with
respect to the related Mortgaged Property if the manager thereunder is
not an Affiliate of the Borrower and the initial Stated Principal
Balance of the Mortgage Loan is greater than $20,000,000;
(xviii) an original or copy of any master operating lease with
respect to the related Mortgaged Property;
(xix) an original or copy of any related Environmental Insurance
Policy; and
(xx) a checklist (a "Mortgage File Checklist") of the applicable
documents described above and delivered in connection
-50-
with the origination of the Mortgage Loan (which checklist may be in a
reasonable form selected by the related Mortgage Loan Seller);
provided, however, that (A) whenever the term "Mortgage File" is used to refer
to documents actually received by the Trustee or by a Custodian on its behalf,
such term shall not be deemed to include such documents required to be included
therein unless they are actually so received, and with respect to any receipt or
certification by the Trustee or a Custodian on its behalf for documents
described in clauses (vi) and (viii) through (xix) of this definition, shall be
deemed to include such documents only to the extent the Trustee or a Custodian
on its behalf has actual knowledge of their existence (and the Trustee or such
Custodian, as the case may be, shall be deemed to have actual knowledge of the
existence of any document listed on the related Mortgage File Checklist); (B)
the "Mortgage File" for the RREEF Textron Pooled Mortgage Loan shall also
include a copy of the RREEF Textron B-Note; and (C) any reference to the
"Mortgage File" for the RREEF Textron B-Note Mortgage Loan shall be deemed to
include all the documents in the Mortgage File for the RREEF Textron Pooled
Mortgage Loan except for the Mortgage Note for the RREEF Textron Pooled Mortgage
Loan and any allonges thereto.
"Mortgage File Checklist":As defined in clause (xx) of the definition
of "Mortgage File".
"Mortgage Loan": The RREEF Textron B-Note Mortgage Loan or any Pooled
Mortgage Loan.
"Mortgage Loan Documents": With respect to any Mortgage Loan, the
documents included or required to be included, as the context may require, in
the related Mortgage File and Servicing File.
"Mortgage Note": The original executed promissory note evidencing the
indebtedness of a Borrower under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool": All of the Pooled Mortgage Loans and any successor REO
Pooled Mortgage Loans, collectively, as of any particular date of determination.
"Mortgage Rate": With respect to each Mortgage Loan (and any successor
REO Mortgage Loan with respect thereto), the related annualized rate at which
interest is scheduled (in the absence of a default) to accrue on such
-51-
Mortgage Loan from time to time in accordance with the related Mortgage Note and
applicable law, as such rate may be modified in accordance with Section 3.20 or
in connection with a bankruptcy, insolvency or similar proceeding involving the
related Borrower. In the case of each ARD Mortgage Loan, the related Mortgage
Rate shall increase in accordance with the related Mortgage Note if the
particular loan is not paid in full by its Anticipated Repayment Date.
"Mortgaged Property": Individually and collectively, as the context may
require, each real property (together with all improvements and fixtures
thereon) subject to the lien of a Mortgage and constituting collateral for a
Mortgage Loan. With respect to any Cross-Collateralized Mortgage Loan, if and
when the context may require, "Mortgaged Property" shall mean, collectively, all
the mortgaged real properties (together with all improvements and fixtures
thereon) securing the relevant Cross-Collateralized Group.
"Mortgagee": The holder of legal title to any Mortgage Loan, together
with any third parties through which such holder takes actions with respect to
such Mortgage Loan.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments (and prepayment resulting from the receipt of Insurance
Proceeds or Condemnation Proceeds) on the Pooled Mortgage Loans during the
related Collection Period, exceeds (b) the aggregate amount of the Compensating
Interest Payments remitted by the Master Servicers pursuant to Section 3.19(c)
on the Master Servicer Remittance Date related to such Distribution Date.
"Net Cash Flow": With respect to any Mortgaged Property, the total
operating revenues derived from such Mortgaged Property, minus the total fixed
and variable operating expenses, capital expenditures such as reserves, tenant
improvements and leasing commissions, incurred in respect of such Mortgaged
Property (subject to adjustments for, among other things, (i) non-cash items
such as depreciation and amortization, and (ii) debt service on loans secured by
the Mortgaged Property).
"Net Default Charges": With respect to any Pooled Mortgage Loan or
successor REO Pooled Mortgage Loan, the Default Charges referred to in clause
third of Section 3.26(a), which are payable to the applicable Master Servicer as
Additional Master Servicing Compensation or the applicable Special Servicer as
Additional Special Servicing Compensation.
-52-
"Net Investment Earnings": With respect to any Investment Account for
any Collection Period, the amount, if any, by which the aggregate of all
interest and other income realized during such Collection Period on funds held
in such Investment Account (exclusive, in the case of a Servicing Account, a
Reserve Account or the Defeasance Deposit Account, of any portion of such
interest or other income payable to a Borrower in accordance with the related
loan documents and applicable law), exceeds the aggregate of all losses and
costs, if any, incurred during such Collection Period in connection with the
investment of such funds in accordance with Section 3.06 (exclusive, in the case
of a Servicing Account, a Reserve Account or the Defeasance Deposit Account, of
any portion of such losses that were incurred in connection with investments
made for the benefit of a Borrower).
"Net Investment Loss": With respect to any Investment Account for any
Collection Period, the amount by which the aggregate of all losses, if any,
incurred during such Collection Period in connection with the investment of
funds held in such Account for the benefit of a Master Servicer, a Special
Servicer or the Trustee, as applicable, in accordance with Section 3.06
(exclusive, in the case of a Servicing Account, a Reserve Account or the
Defeasance Deposit Account, of any portion of such losses that were incurred in
connection with investments made for the benefit of a Borrower) (and other than
losses of what would otherwise have constituted interest or other income earned
on such funds), exceeds the aggregate of all interest and other income realized
during such Collection Period in connection with the investment of such funds
for the benefit of such Master Servicer, such Special Servicer or the Trustee,
as applicable, in accordance with Section 3.06; provided that, in the case of
any Investment Account and any particular investment of funds in such Investment
Account, Net Investment Loss shall not include any loss with respect to such
investment which is incurred solely as a result of the insolvency of the federal
or state chartered depositary institution or trust company at which such
Investment Account is maintained, so long as such depositary institution or
trust company (a) satisfied the qualifications set forth in the definition of
"Eligible Account" both at the time such investment was made and also as of a
date not more than 30 days prior to the date of such loss and (b) is not the
same Person as the Person that made the relevant investment.
"Net Liquidation Proceeds": The excess, if any, of all Liquidation
Proceeds actually received with respect to any Specially Serviced Mortgage Loan
or REO Property, over the amount of all Liquidation Expenses incurred with
respect thereto and all related Servicing Advances reimbursable therefrom.
-53-
"Net Mortgage Rate": With respect to (i) any Pooled Mortgage Loan (or
successor REO Pooled Mortgage Loan), the rate per annum equal to (a) the related
Mortgage Rate minus (b) the related Administrative Cost Rate and, in the case of
an ARD Mortgage Loan after its Anticipated Repayment Date, the related Post-ARD
Additional Interest Rate and (ii) the RREEF Textron B-Note Mortgage Loan, the
rate per annum equal to (a) the related Mortgage Rate minus (b) the related
Master Servicing Fee Rate.
"Net Prepayment Consideration": As defined in Section 4.01(b).
"New Lease": Any lease of REO Property entered into at the direction of
the Special Servicer, including any lease renewed, modified or extended on
behalf of the Trustee.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": As evidenced by the Officer's Certificate
and supporting documentation contemplated by Section 4.03(c), any P&I Advance
previously made or to be made in respect of any Pooled Mortgage Loan or related
successor REO Pooled Mortgage Loan that, as determined by the applicable Master
Servicer or, if applicable, the Trustee or the Fiscal Agent, in its sole
discretion, exercised in good faith, will not be ultimately recoverable, or in
fact was not, ultimately recovered, from late payments, Default Charges,
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or any other
recovery on or in respect of such Mortgage Loan (without giving effect to
potential recoveries on deficiency judgments or recoveries from guarantors). In
the case of a Cross-Collateralized Mortgage Loan, such recoverability
determination shall take into account the cross-collateralization of the related
Cross-Collateralized Group.
"Nonrecoverable Servicing Advance": As evidenced by the Officer's
Certificate and supporting documentation contemplated by Section 3.11(h), any
Servicing Advance previously made or to be made in respect of any Mortgage Loan
or REO Property that, as determined by the applicable Master Servicer or, if
applicable, the Trustee or the Fiscal Agent, in its sole discretion, exercised
in good faith, will not be ultimately recoverable, or in fact was not,
ultimately recovered, from late payments, Default Charges, Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds or any other recovery on or in
respect of such Mortgage Loan (without giving effect to potential recoveries on
deficiency judgments or recoveries from guarantors). In the case of a
Cross-
-54-
Collateralized Mortgage Loan, such recoverability determination shall take into
account the cross-collateralization of the related Cross-Collateralized Group.
"Non-Registered Certificate": Any Certificate that has not been subject
to registration under the Securities Act. As of the Closing Date, the Class X-1,
Class X-2, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class P, Class R and Class V Certificates are
Non-Registered Certificates.
"Non-United States Tax Person": Any Person other than a United States
Tax Person.
"Officer's Certificate": A certificate signed by a Servicing Officer of
a Master Servicer or Special Servicer or a Responsible Officer of the
Certificate Administrator, the Trustee or the Fiscal Agent, as the case may be,
or, with respect to any other Person, a certificate signed by any of the
Chairman of the Board, the Vice Chairman of the Board, the President, any Vice
President or Managing Director, an Assistant Vice President or any other
authorized officer (however denominated) or another officer customarily
performing functions similar to those performed by any of the above designated
officers or, with respect to a particular matter, any other officer to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Opinion of Counsel": A written opinion of counsel (who must, in the
case of any such opinion relating to the taxation of the Trust Fund or any
portion thereof, the status of any REMIC Pool as a REMIC, the status of the
Grantor Trust Pool as a Grantor Trust for taxation purposes or a resignation
under Section 6.04, be Independent counsel, but who otherwise may be salaried
counsel for the Depositor, the Certificate Administrator, the Trustee, the Tax
Administrator, the Fiscal Agent, either Master Servicer or either Special
Servicer), which written opinion is acceptable and delivered to the addressee(s)
thereof and which Opinion of Counsel, except as provided herein, shall not be at
the expense of the Certificate Administrator, the Trustee or the Trust Fund.
"Original BSCMI Pooled Mortgage Loans": The mortgage loans initially
identified on the schedule attached hereto as Schedule I-B.
"Original BSFI Pooled Mortgage Loans": The mortgage loans initially
identified on the schedule attached hereto as Schedule I-C.
-55-
"Original Pooled Mortgage Loans": The mortgage loans initially
identified on the schedules attached hereto as Schedule I-A, Schedule I-B,
Schedule I-C and Schedule I-D.
"Original PMCF Pooled Mortgage Loans": The mortgage loans initially
identified on the schedule attached hereto as Schedule I-A.
"Original WFB Pooled Mortgage Loans": The mortgage loans initially
identified on the schedule attached hereto as Schedule I-D.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": In the case of any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": With respect to any Pooled Mortgage Loan or REO Pooled
Mortgage Loan, any advance made by the applicable Master Servicer, the Trustee
or the Fiscal Agent pursuant to Section 4.03.
"P&I Advance Date": The Business Day preceding each Distribution Date.
"PAR": Prudential Asset Resources, Inc. or its successor in interest.
"Pass-Through Rate": The per annum rate at which interest accrues in
respect of any Class of Regular Interest Certificates during any Interest
Accrual Period, as set forth in or otherwise calculated in accordance with
Section 2.16(f).
"Past Grace Period Loan": With respect to any Master Servicer
Remittance Date, any Mortgage Loan having any Monthly Payment remaining unpaid
past its Due Date and past any applicable grace period for such Monthly Payment
as of the Determination Date on the same calendar month.
"Percentage Interest": With respect to (a) any Regular Interest
Certificate, the portion of the relevant Class evidenced by such Certificate,
expressed as a percentage, the numerator of which is the Certificate Principal
Balance or Certificate Notional Amount, as
-56-
the case may be, of such Certificate as of the Closing Date, as specified on the
face thereof, and the denominator of which is the initial Class Principal
Balance or initial Class Notional Amount, as the case may be, of the relevant
Class as of the Closing Date; and (b) any Class R or Class V Certificate, the
percentage interest in distributions to be made with respect to the relevant
Class, as stated on the face of such Certificate.
"Performance Certification": As defined in Section 8.15(b).
"Performing Party": As defined in Section 8.15(b).
"Permitted Investments": Any one or more of the following obligations
or securities:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States
or any agency or instrumentality thereof, provided that each
such obligation is backed by the full faith and credit of the
United States;
(ii) repurchase agreements on obligations specified in clause (i),
provided that the short-term unsecured debt obligations of the
party agreeing to repurchase such obligations are at the time
of investment rated in the highest short-term debt rating
category of each of Moody's and Fitch (or, in the case of any
Rating Agency, have such lower rating as will not result in an
Adverse Rating Event with respect to such Rating Agency and
any Class of Rated Certificates, as confirmed in writing to
the Trustee by such Rating Agency);
(iii) federal funds, unsecured uncertificated certificates of
deposit, time deposits and bankers' acceptances of any bank or
trust company organized under the laws of the United States or
any state thereof, provided that the short-term unsecured debt
obligations of such bank or trust company are at the time of
investment rated in the highest short-term debt rating
category of each of Moody's and Fitch (or, in the case of any
Rating Agency, have such lower rating as will not result in an
Adverse Rating Event with respect to such Rating Agency and
any Class of Rated Certificates, as confirmed in writing to
the Trustee by such Rating Agency);
-57-
(iv) commercial paper of any corporation incorporated under the
laws of the United States or any state thereof (or of any
corporation not so incorporated, provided that the commercial
paper is United States Dollar denominated and amounts payable
thereunder are not subject to any withholding imposed by any
non-United States jurisdiction), provided that such commercial
paper is rated in the highest short-term debt rating category
of each of Moody's and Fitch (or, in the case of any Rating
Agency, has such lower rating as will not result in an Adverse
Rating Event with respect to such Rating Agency and any Class
of Rated Certificates, as confirmed in writing to the Trustee
by such Rating Agency);
(v) units of money market funds (including those managed or
advised by the Certificate Administrator or its Affiliates)
which maintain a constant net asset value, provided that such
units of money market funds are rated in the highest
applicable rating category of each of Moody's and Fitch (or,
in the case of any Rating Agency, have such lower rating as
will not result in an Adverse Rating Event with respect to
such Rating Agency and any Class of Rated Certificates, as
confirmed in writing to the Certificate Administrator by such
Rating Agency); or
(vi) any other obligation or security that is acceptable to each
Rating Agency and will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates (as confirmed
in writing to the Trustee by each relevant Rating Agency);
provided that (A) no investment described hereunder shall evidence either the
right to receive (1) only interest with respect to such investment or (2) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations, (B) no investment described hereunder may be purchased
at a price greater than par if such investment may be prepaid or called at a
price less than its purchase price prior to stated maturity, and (C) no
investment described hereunder may be sold prior to stated maturity if such sale
would result in a loss of principal on the instrument or a tax on "prohibited
transactions" under Section 860F of the Code; and provided, further, that each
investment described hereunder must have (X) a predetermined fixed amount of
principal due at maturity (that cannot vary or change), (Y) an original maturity
of not more than 365 days and a remaining
-58-
maturity of not more than 30 days and (Z) except in the case of a Permitted
Investment described in clause (v) of this definition, a fixed interest rate or
an interest rate that is tied to a single interest rate index plus a single
fixed spread and moves proportionately with that index; and provided, further,
that each investment described hereunder must be a "cash flow investment"
(within the meaning of the REMIC Provisions).
"Permitted Transferee": Any Transferee of a Class R Certificate other
than (a) a Disqualified Organization, (b) a Disqualified Non-United States Tax
Person, (c) a Disqualified Partnership or (d) any Person as to whom, as
determined by the Certificate Administrator (based upon an Opinion of Counsel,
obtained at the request of the Certificate Administrator at the expense of such
Person or the Person seeking to Transfer a Class R Certificate, supporting such
determination), the Transfer of a Class R Certificate may cause any REMIC Pool
to fail to qualify as a REMIC at any time that any Certificate is outstanding.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Phase I Environmental Assessment": A "Phase I assessment" or, in the
case of certain Mortgage Loans having an initial principal balance under
$1,000,000, a transaction screen, as described in, and meeting the criteria of
the American Society for Testing and Materials.
"Plan": Any of those retirement plans and other employee benefit plans,
including individual retirement accounts and annuities, ▇▇▇▇▇ plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
are subject to ERISA or Section 4975 of the Code.
"PMCF Mortgage Loan": Any Mortgage Loan that is either an Original PMCF
Pooled Mortgage Loan or a Replacement Pooled Mortgage Loan that was delivered
under the PMCF Pooled Mortgage Loan Purchase Agreement in substitution for an
Original PMCF Mortgage Loan. The parties acknowledge that the PMCF Mortgage
Loans were sold to the Depositor by ▇▇▇▇▇▇▇ Bank pursuant to the ▇▇▇▇▇▇▇ Bank
Mortgage Loan Purchase Agreement.
"PMCF Pooled Mortgage Loan Purchase Agreement": That certain Pooled
Mortgage Loan Purchase Agreement dated as of September 30, 2002, between
Prudential Mortgage Capital Funding, LLC as seller and ▇▇▇▇▇▇▇
-59-
Bank as purchaser, which has been assigned by ▇▇▇▇▇▇▇ Bank to the Depositor
pursuant the ▇▇▇▇▇▇▇ Bank Mortgage Loan Purchase Agreement.
"Pooled Mortgage Loan": Each of the Original Pooled Mortgage Loans and
Replacement Pooled Mortgage Loans that are from time to time held in the Trust
Fund, including any such mortgage loan that has been wholly or partially
defeased. As used herein, the term "Mortgage Loan" includes the related Mortgage
Loan Documents.
"Pooled Mortgage Loan Purchase Agreement": Any of the BSCMI Pooled
Mortgage Loan Purchase Agreement, the BSFI Pooled Mortgage Loan Purchase
Agreement, the WFB Pooled Mortgage Loan Purchase Agreement and, when used with
respect to any PMCF Pooled Mortgage Loan, (x) the PMCF Pooled Mortgage Loan
Purchase Agreement, to the extent of the obligations of PMCF thereunder and (y)
the ▇▇▇▇▇▇▇ Bank Mortgage Loan Purchase Agreement, to the extent of the limited
obligations of ▇▇▇▇▇▇▇ Bank thereunder. The parties acknowledge that the PMCF
Mortgage Loans were sold to the Depositor by ▇▇▇▇▇▇▇ Bank pursuant to the
▇▇▇▇▇▇▇ Bank Mortgage Loan Purchase Agreement.
"Pooled Mortgage Loan Schedule": Collectively, the three schedules of
Pooled Mortgage Loans attached hereto as Schedule I-A, Schedule I-B and Schedule
I-C, respectively, as any such schedule may be amended from time to time in
accordance with this Agreement. Such schedules shall set forth the following
information with respect to each Mortgage Loan:
(i) the loan number assigned to the Mortgage Loan on the books and
records of the related Pooled Mortgage Loan Seller as of the
Closing Date and the identification number assigned to such in
the Prospectus Supplement;
(ii) the street address (including city, state and zip code) of the
related Mortgaged Property;
(iii) the (A) original principal balance and (B) Cut-off Date
Principal Balance;
(iv) the amount of the Monthly Payment due on the first Due Date
following the Closing Date (and, if a Mortgage Loan currently
requires only payments of interest but begins to amortize
prior to maturity, on the first Due Date after amortization
begins);
-60-
(v) the Mortgage Rate as of the Closing Date and the Interest
Accrual Basis;
(vi) in the case of a Pooled Mortgage Loan that is a Balloon
Mortgage Loan, the original and remaining term to stated
maturity, and, in the case of a Pooled Mortgage Loan that is
an ARD Mortgage Loan, the Anticipated Repayment Date and the
original and remaining term to the Anticipated Repayment Date;
(vii) in the case of a Pooled Mortgage Loan that is a Balloon
Mortgage Loan or an ARD Mortgage Loan, the original and
remaining amortization term;
(viii) whether such Pooled Mortgage Loan is a Cross-Collateralized
Mortgage Loan and, if so, an identification of the Mortgage
Loans with which such Mortgage Loan is cross-collateralized;
(ix) whether such Pooled Mortgage Loan provides for defeasance and
if so, the period during which defeasance may occur;
(x) whether the Pooled Mortgage Loan is secured by a fee simple
interest in the Mortgaged Property; by the Borrower's
leasehold interest, and a fee simple interest, in the
Mortgaged Property; or solely by a leasehold interest in the
Mortgaged Property;
(xi) the name of the Pooled Mortgage Loan Seller;
(xii) the Administrative Cost Rate;
(xiii) the Due Date;
(xiv) the number of grace days before such Pooled Mortgage Loan
requires a late payment charge in connection with a delinquent
Monthly Payment;
(xv) whether there exists (and, if so, the amount of) any letter of
credit that constitutes Additional Collateral;
-61-
(xvi) whether repayment of such Pooled Mortgage Loan is guaranteed
by a guarantor;
(xvii) whether the related Mortgaged Property is, as of the Cut-off
Date, operated as a hospitality property; and
(xviii) the initial Master Servicer for such Pooled Mortgage Loan.
"Pooled Mortgage Loan Sellers": Collectively, WFB, BSCMI, BSFI and (x)
when used with respect to any PMCF Mortgage Loan, PMCF to the extent of the
obligations of PMCF under the PMCF Pooled Mortgage Loan Purchase Agreement and
(y) ▇▇▇▇▇▇▇ Bank, to the extent of the obligations of ▇▇▇▇▇▇▇ Bank under the
▇▇▇▇▇▇▇ Bank Mortgage Loan Purchase Agreement. The parties acknowledge the
limitations on the obligation of ▇▇▇▇▇▇▇ Bank under the ▇▇▇▇▇▇▇ Bank Mortgage
Loan Purchase Agreement, including without limitation those set forth in Section
4 thereof. For the avoidance of doubt, the parties acknowledge that for purposes
of Sections 2.01(d), 2.01(f) and Section 2.02 of this Agreement, Section 2.03 of
this Agreement to the extent that such Section relates to any Document Defect
with respect to a PMCF Pooled Mortgage Loan and (except to the limited extent of
the obligations of ▇▇▇▇▇▇▇ Bank under the ▇▇▇▇▇▇▇ Bank Mortgage Loan Purchase
Agreement as described above) and Section 2.03 of this Agreement to the extent
that such Section relates to matters other than a Document Defect, "Pooled
Mortgage Loan Seller" shall mean only PMCF, and not ▇▇▇▇▇▇▇ Bank, in connection
with any PMCF Mortgage Loan. The parties acknowledge that the PMCF Mortgage
Loans were sold to the Depositor by ▇▇▇▇▇▇▇ Bank pursuant to the ▇▇▇▇▇▇▇ Bank
Mortgage Loan Purchase Agreement.
"Post-ARD Additional Interest": With respect to any ARD Mortgage Loan
after its Anticipated Repayment Date, all interest accrued on the principal
balance of such ARD Mortgage Loan at the Post-ARD Additional Interest Rate (the
payment of which interest shall, under the terms of such Mortgage Loan, be
deferred until the principal balance of such Mortgage Loan and all other
interest thereon has been paid in full), together with all interest, if any,
accrued at the related Mortgage Rate on such deferred interest.
"Post-ARD Additional Interest Rate": With respect to any ARD Mortgage
Loan after its Anticipated Repayment Date, the incremental increase in the
Mortgage Rate for such Mortgage Loan resulting from the passage of such
Anticipated Repayment Date.
-62-
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on the Pooled
Mortgage Loans, the REMIC I Regular Interests, the REMIC II Regular Interests,
the REMIC III Components of the Interest Only Certificates and the Certificates
for federal income tax purposes, the assumptions that each ARD Mortgage Loan is
paid in its entirety on its Anticipated Prepayment Date and that no Mortgage
Loan is otherwise voluntarily prepaid prior to its Stated Maturity Date.
"Prepayment Interest Excess": With respect to any Pooled Mortgage Loan
that was subject to a Principal Prepayment in full or in part made (or, if
resulting from the application of Insurance Proceeds or Condemnation Proceeds,
any other early recovery of principal received) after the Due Date for such
Pooled Mortgage Loan in any Collection Period, any payment of interest (net of
related Master Servicing Fees and any portion of such interest that represents
Default Interest or Post-ARD Additional Interest) actually collected from the
related Borrower or out of such Insurance Proceeds or Condemnation Proceeds, as
the case may be, and intended to cover the period from and after such Due Date
to, but not including, the date of prepayment (exclusive, however, of any
related Prepayment Premium or Yield Maintenance Charge that may have been
collected).
"Prepayment Interest Shortfall": With respect to any Pooled Mortgage
Loan that was subject to a Principal Prepayment in full or in part made (or, if
resulting from the application of Insurance Proceeds or Condemnation Proceeds,
any other early recovery of principal received) prior to the Due Date for such
Pooled Mortgage Loan in any Collection Period, the amount of interest, to the
extent not collected from the related Borrower or otherwise (without regard to
any Prepayment Premium or Yield Maintenance Charge that may have been
collected), that would have accrued at a rate per annum equal to the related
Mortgage Rate (net of the sum of the related Master Servicing Fee Rate and, in
the case of an ARD Mortgage Loan after its Anticipated Repayment Date, the
related Post-ARD Additional Interest Rate) on the amount of such Principal
Prepayment during the period from the date to which interest was paid by the
related Borrower to, but not including, such Due Date.
"Prepayment Premium": With respect to any Mortgage Loan, any premium,
fee or other additional amount (other than a Yield Maintenance Charge) paid or
payable, as the context requires, by a Borrower in connection with a Principal
Prepayment on, or other early collection of principal of, such Mortgage Loan or
any successor REO Mortgage Loan (including any payoff of a Mortgage
-63-
Loan by a mezzanine lender on behalf of the subject Borrower if and as set forth
in the related intercreditor agreement).
"Primary Collateral": With respect to any Cross-Collateralized Mortgage
Loan, that portion of the Mortgaged Property designated as directly securing
such Cross-Collateralized Mortgage Loan and excluding any Mortgaged Property as
to which the related lien may only be foreclosed upon by exercise of the
cross-collateralization provisions of such Cross-Collateralized Mortgaged Loan.
"Primary Servicing Office": The office of a Master Servicer or Special
Servicer, as the context may require, that is primarily responsible for such
party's servicing obligations hereunder.
"Principal Balance Certificate": Any of the Class A-1, Class A-2, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N and Class P Certificates.
"Principal Distribution Amount": With respect to any Distribution Date
other than the Final Distribution Date, an amount equal to the aggregate
(without duplication) of the following:
(i) all payments of principal (including Principal Prepayments)
received by or on behalf of the Trust with respect to the Pooled Mortgage Loans
during the related Collection Period, in each case exclusive of any portion of
the particular payment that represents a Late Collection of principal for which
a P&I Advance was previously made under this Agreement for a prior Distribution
Date or that represents the principal portion of a Monthly Payment due on or
before the Cut-off Date or on a Due Date subsequent to the related Collection
Period,
(ii) the aggregate of the principal portions of all Monthly Payments
due in respect of the Pooled Mortgage Loans for their respective Due Dates
occurring during the related Collection Period, that were received by or on
behalf of the Trust (other than as part of a Principal Prepayment) prior to the
related Collection Period,
-64-
(iii) the aggregate of all Liquidation Proceeds, Condemnation Proceeds
and Insurance Proceeds received by or on behalf of the Trust with respect to any
Pooled Mortgage Loans during the related Collection Period that were identified
and applied by the Master Servicer as recoveries of principal of such Pooled
Mortgage Loans in accordance with Section 1.03, in each case net of any portion
of such proceeds that represents a Late Collection of principal due on or before
the Cut-off Date or for which a P&I Advance was previously made under this
Agreement for a prior Distribution Date,
(iv) the aggregate of all Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and REO Revenues received by or on behalf of the Trust with
respect to any REO Properties during the related Collection Period that were
identified and applied by the Master Servicer as recoveries of principal of the
related REO Pooled Mortgage Loans in accordance with Section 1.03, in each case
net of any portion of such proceeds and/or revenues that represents a Late
Collection of principal due on or before the Cut-off Date or for which a P&I
Advance was previously made under this Agreement for a prior Distribution Date,
and
(v) the respective principal portions of all P&I Advances made in
respect of the Pooled Mortgage Loans and any REO Pooled Mortgage Loans with
respect to such Distribution Date;
provided that, if any Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds were received and/or a Final Recovery Determination was made with
respect to any Mortgage Loan or REO Property during the related Collection
Period, then that portion, if any, of the aggregate amount described in clauses
(i) through (v) above that is specifically attributable to such Mortgage Loan or
REO Property, as the case may be, shall be reduced (to not less than zero) by
any Special Servicing Fees, Liquidation Fees and/or Advance Interest with
respect to such Mortgage Loan or REO Property, as the case may be, that was paid
hereunder from a source other than related Default Charges during the related
Collection Period.
With respect to the Final Distribution Date, the "Principal
Distribution Amount" shall equal the aggregate Stated Principal Balance of the
entire Mortgage Pool outstanding immediately prior to the Final Distribution
Date.
"Principal Prepayment": Any payment of principal made by the Borrower
on a Mortgage Loan which is received in advance of its scheduled Due Date and
that is not accompanied by an amount of interest (without regard to any
-65-
Prepayment Premium, Yield Maintenance Charge and/or Post-ARD Additional Interest
that may have been collected) representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
"Private Placement Memorandum": The final Private Placement Memorandum
dated September 24, 2002, relating to certain classes of the Non-Registered
Certificates delivered by the Depositor to Bear, ▇▇▇▇▇▇▇ & Co. Inc. as of the
Closing Date.
"Privileged Person": Any of the following: a party to this Agreement,
an Underwriter, a Pooled Mortgage Loan Seller, the Controlling Class
Representative, a Rating Agency, a designee of the Depositor, a
Certificateholder and any Person who certifies to the Certificate Administrator
in the form of Exhibit J-1 hereto or Exhibit J-2 hereto, as applicable (which
form shall also be located on, and may be submitted electronically via, the
Certificate Administrator's internet website), that such Person is a Certificate
Owner, or a prospective purchaser of a Certificate or any interest therein.
"Prospectus": The Base Prospectus and the Prospectus Supplement,
together.
"Prospectus Supplement": That certain prospectus supplement dated
September 24, 2002, relating to the Registered Certificates, that is a
supplement to the Base Prospectus.
"PTCE": Prohibited Transaction Class Exemption.
"PTE": Prohibited Transaction Exemption.
"Purchase Option": As defined in Section 3.18(c).
"Purchase Option Period": As defined in Section 3.18(c).
"Purchase Option Price": As defined in Section 3.18(c).
"Purchase Price": With respect to any Pooled Mortgage Loan (or REO
Property), a cash price equal to the aggregate of (a) the outstanding principal
balance of such Pooled Mortgage Loan (or the related REO Pooled Mortgage Loan)
as of the date of purchase, (b) all accrued and unpaid interest on such Pooled
Mortgage Loan (or the related REO Pooled Mortgage Loan) at the related Mortgage
Rate to, but not including, the Due Date occurring in the Collection Period
during which the applicable purchase or repurchase occurs (exclusive, however,
of any portion of such accrued but unpaid interest that represents
-66-
Default Interest or, in the case of an ARD Mortgage Loan after its Anticipated
Repayment Date, Additional Interest), (c) all related unreimbursed Servicing
Advances, if any, (d) all accrued and unpaid Advance Interest with respect to
any related Advances, and (e) solely in the case of a purchase, repurchase or
substitution, as applicable, by a Pooled Mortgage Loan Seller pursuant to the
related Pooled Mortgage Loan Purchase Agreement or a purchase of the RREEF
Textron Pooled Mortgage Loan by the RREEF Textron B-Note Holder pursuant to the
RREEF Textron Co-Lender Agreement or Section 3.28, (i) to the extent not
otherwise included in the amount described in clause (d) of this definition, any
unpaid Special Servicing Fees and other outstanding Additional Trust Fund
Expenses with respect to such Mortgage Loan (or REO Property) and (ii) to the
extent not otherwise included in the amount described in clause (c) or clause
(e)(i) of this definition, any costs and expenses incurred by the applicable
Master Servicer, the applicable Special Servicer or the Trustee (on behalf of
the Trust) in enforcing the obligation of such Person to repurchase or replace
such Mortgage Loan or REO Property.
"Qualified Appraiser": In connection with the appraisal of any
Mortgaged Property or REO Property, an Independent MAI-designated appraiser with
at least five years of experience in respect of the relevant geographic location
and property type.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer" or "QIB": A "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act.
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Qualified Mortgage": A qualified mortgage within the meaning of
Section 860G(a)(3) of the Code.
"Qualifying Substitute Mortgage Loan": In connection with the
replacement of a Defective Pooled Mortgage Loan as contemplated by Section 2.03,
any other mortgage loan which, on the date of substitution: (i) has an
outstanding Stated Principal Balance, after application of all scheduled
payments of principal and interest due during or prior to the month of
substitution, not in excess of the Stated Principal Balance of the Deleted
Pooled Mortgage Loan as of the Due Date in the calendar month during which the
substitution occurs; (ii) has
-67-
a fixed Mortgage Rate that is not less than, and not more than one percentage
point in excess of, the Mortgage Rate of the Deleted Pooled Mortgage Loan; (iii)
has the same monthly Due Date as, and a grace period for delinquent Monthly
Payments that is no longer than, the Due Date and grace period, respectively, of
the Defective Pooled Mortgage Loan; (iv) accrues interest on the same Interest
Accrual Basis as the Defective Pooled Mortgage Loan; (v) has a remaining term to
stated maturity not greater than, and not more than one year less than, that of
the Defective Pooled Mortgage Loan, (vi) has a Stated Maturity Date not later
than two years prior to the Rated Final Distribution Date; (vii) has a then
current loan-to-value ratio not higher than, and a then current debt service
coverage ratio not lower than, the loan-to-value ratio and debt service coverage
ratio, respectively, of the Defective Pooled Mortgage Loan as of the Closing
Date; (viii) has comparable prepayment restrictions to those of the Defective
Pooled Mortgage Loan; (ix) will comply, as of the date of substitution, with all
of the representations relating to the Defective Pooled Mortgage Loan set forth
in or made pursuant to the related Pooled Mortgage Loan Purchase Agreement; (x)
has a Phase I Environmental Assessment relating to the related Mortgaged
Property in its Servicing File, which Phase I Environmental Assessment will
evidence that there is no material adverse environmental condition or
circumstance at the related Mortgaged Property for which further remedial action
may be required under applicable law; and (xi) constitutes a "qualified
replacement mortgage" within the meaning of Section 860G(a)(4) of the Code (as
evidenced by an Opinion of Counsel provided by the related Pooled Mortgage Loan
Seller at its expense); provided, however, that if more than one mortgage loan
is to be substituted for any Defective Pooled Mortgage Loan, then all such
proposed Replacement Pooled Mortgage Loans shall, in the aggregate, satisfy the
requirement specified in clause (i) of this definition and have a weighted
average remaining term to stated maturity that satisfies the condition described
in clause (v) above and each such proposed Replacement Pooled Mortgage Loan
shall, individually, satisfy each of the requirements specified in clauses (ii)
through (iv) and clauses (vi) through (xi) of this definition; and provided,
further, that no mortgage loan shall be substituted for a Defective Pooled
Mortgage Loan unless (a) such prospective Replacement Pooled Mortgage Loan shall
be acceptable to the Controlling Class Representative (or, if there is no
Controlling Class Representative then serving, to the Holders of Certificates
representing a majority of the Voting Rights allocated to the Controlling
Class), in its (or their) sole discretion, (b) each Rating Agency shall have
confirmed in writing to the Trustee that such substitution will not in and of
itself result in an Adverse Rating Event with respect to any Class of Rated
Certificates (such written confirmation to be obtained by the related Pooled
Mortgage Loan Seller effecting the substitution) and (c) the related Pooled
Mortgage Loan Seller (at its expense) has delivered or
-68-
caused to have been delivered to the Trustee an Opinion of Counsel to the effect
that the substitution of such mortgage loan would not result in an Adverse REMIC
Event with respect to any REMIC Pool. When a Qualifying Substitute Mortgage Loan
is substituted for a Deleted Pooled Mortgage Loan, the applicable Pooled
Mortgage Loan Seller shall certify that the Mortgage Loan meets all of the
requirements of the above definition and shall send such certification to the
Trustee.
"Rated Certificate": Any of the Certificates to which a rating has been
assigned by a Rating Agency at the request of the Depositor.
"Rated Final Distribution Date": With respect to each Class of Rated
Certificates, the Distribution Date in November 2035.
"Rating Agency": Each of ▇▇▇▇▇'▇ and Fitch.
"Realized Loss": With respect to:
(1) each Pooled Mortgage Loan as to which a Final Recovery
Determination has been made, or with respect to any related successor REO
Mortgage Loan as to which a Final Recovery Determination has been made as
to the related REO Property, an amount (not less than zero) equal to the
excess, if any, of (a) the sum of (i) the unpaid principal balance of such
Pooled Mortgage Loan or REO Mortgage Loan, as the case may be, as of the
commencement of the Collection Period in which the Final Recovery
Determination was made, plus (ii) without taking into account the amount
described in subclause (1)(b) of this definition, all accrued but unpaid
interest on such Pooled Mortgage Loan or such REO Mortgage Loan, as the
case may be, to but not including the Due Date in the Collection Period in
which the Final Recovery Determination was made (exclusive, however, of any
portion of such accrued but unpaid interest that represents Default
Interest or, in the case of an ARD Mortgage Loan after its Anticipated
Repayment Date, Additional Interest), plus (iii) all related unreimbursed
Servicing Advances and unpaid Liquidation Expenses over (b) all payments
and proceeds, if any, received by or on behalf of the Trust in respect of
such Mortgage Loan or, to the extent allocable to such REO Mortgage Loan,
the related REO Property, as the case may be, during the Collection Period
in which such Final Recovery Determination was made;
(2) each Pooled Mortgage Loan as to which any portion of the principal
or previously accrued interest payable thereunder was canceled
-69-
in connection with a bankruptcy or similar proceeding involving the related
Borrower or a modification, extension, waiver or amendment of such Mortgage
Loan granted or agreed to by the applicable Special Servicer pursuant to
Section 3.20, the amount of such principal and/or interest (other than
Default Interest and, in the case of an ARD Mortgage Loan after its
Anticipated Repayment Date, Additional Interest) so canceled; and
(3) each Pooled Mortgage Loan as to which the Mortgage Rate thereon has
been permanently reduced and not recaptured for any period in connection
with a bankruptcy or similar proceeding involving the related Borrower or a
modification, extension, waiver or amendment of such Pooled Mortgage Loan
granted or agreed to by the applicable Special Servicer pursuant to Section
3.20, the amount of the consequent reduction in the interest portion of
each successive Monthly Payment due thereon (each such Realized Loss shall
be deemed to have been incurred on the Due Date for each affected Monthly
Payment).
"Record Date": With respect to any Distribution Date, the last Business
Day of the month immediately preceding the month in which such Distribution Date
occurs.
"Reference Rate": With respect to any Interest Accrual Period, the rate
per annum set forth on the schedule attached hereto as Schedule IV.
"Registered Certificate": Any Certificate that has been the subject of
registration under the Securities Act. As of the Closing Date, the Class ▇-▇,
▇▇▇▇▇ ▇-▇, Class B and Class C Certificates constitute Registered Certificates.
"Regular Interest Certificate": Any of the Interest Only Certificates
and the Principal Balance Certificates.
"Regulation S": Regulation S under the Securities Act.
"Regulation S Legend": With respect to any Class of Book-Entry
Non-Registered Certificates offered and sold outside the United States in
reliance on Regulation S, a legend generally to the effect that such
Certificates may not be offered, sold, pledged or otherwise transferred in the
United States or to a United States Securities Person prior to the Release Date
except pursuant to an exemption from the registration requirements of the
Securities Act.
-70-
"Regulation S Global Certificate": With respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside of the United
States in reliance on Regulation S, a single global Certificate, or multiple
global Certificates collectively, in definitive, fully registered form without
interest coupon, each of which Certificates bears a Regulation S Legend.
"Reimbursement Rate": The rate per annum applicable to the accrual of
Advance Interest, which rate per annum is equal to the "prime rate" published in
the "Money Rates" section of The Wall Street Journal, as such "prime rate" may
change from time to time. If The Wall Street Journal ceases to publish the
"prime rate", then the Trustee, in its sole discretion, shall select an
equivalent publication that publishes such "prime rate"; and if such "prime
rate" is no longer generally published or is limited, regulated or administered
by a governmental or quasi-governmental body, then the Trustee shall select a
comparable interest rate index. In either case, such selection shall be made by
the Trustee in its sole discretion and the Trustee shall notify the Master
Servicers and the Special Servicers in writing of its selection.
"Release Date": The date that is 40 days following the later of (i) the
Closing Date and (ii) the commencement of the initial offering of the
Non-Registered Certificates.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860A through G of the Code.
"REMIC I": The segregated pool of assets designated as such in Section
2.12(a).
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and, in each such
case, designated as a "regular interest" (within the meaning of Section
860G(a)(1) of the Code) in REMIC I. The REMIC I Regular Interests have the
designations and terms provided for in Section 2.12.
"REMIC I Remittance Rate": The per annum rate at which interest accrues
in respect of any REMIC I Regular Interest during any Interest Accrual Period,
as set forth in or otherwise calculated in accordance with Section 2.12(f).
"REMIC I Residual Interest": The sole uncertificated "residual
interest" (within the meaning of Section 860G(a)(2) of the Code) in REMIC I
issued pursuant to this Agreement.
-71-
"REMIC II": The segregated pool of assets designated as such in Section
2.14(a).
"REMIC II Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and, in each such
case, designated as a "regular interest" (within the meaning of Section
860G(a)(1) of the Code) in REMIC II. The REMIC II Regular Interests have the
designations provided for in the Preliminary Statement hereto. The REMIC II
Regular Interests have the terms provided for in Section 2.14.
"REMIC II Remittance Rate": The per annum rate at which interest
accrues in respect of any REMIC II Regular Interest during any Interest Accrual
Period, as set forth in or otherwise calculated in accordance with Section
2.14(f).
"REMIC II Residual Interest": The sole uncertificated "residual
interest" (within the meaning of Section 860G(a)(2) of the Code) in REMIC II
issued pursuant to this Agreement.
"REMIC III": The segregated pool of assets designated as such in
Section 2.16(a).
"REMIC III Component": Any of the separate non-certificated beneficial
ownership interests in REMIC III issued hereunder and, in each such case,
designated as a "regular interest" (within the meaning of Section 860G(a)(1) of
the Code) in REMIC III. The REMIC III Components have the designations provided
for in the Preliminary Statement hereto. The REMIC III Components have the terms
provided for in Section 2.16.
"REMIC III Residual Interest": The sole uncertificated "residual
interest" (within the meaning of Section 860G(a)(2) of the Code) in REMIC III
issued pursuant to this Agreement.
"REMIC Pool": Any of REMIC I, REMIC II or REMIC III.
"REMIC Provisions": The provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and proposed, temporary and final Treasury regulations and any
published rulings, notices and announcements promulgated thereunder, as the
foregoing may be in effect from time to time.
-72-
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created and
maintained by a Special Servicer, pursuant to Section 3.16(b), on behalf of the
Trustee in trust for the Certificateholders (and, if the subject REO Property
consists of the RREEF Textron Mortgaged Property, for the RREEF Textron B-Note
Holder), which shall be entitled (i) in the case of the General Special
Servicer, "ARCap Special Servicing, Inc., as General Special Servicer, on behalf
of LaSalle Bank National Association, as Trustee [or the name of any successor
Trustee], in trust for the registered holders of Bear ▇▇▇▇▇▇▇ Commercial
Mortgage Securities Inc., Commercial Mortgage Pass Through Certificates,
2002-PBW1, REO Account"; and (ii) in the case of the RREEF Textron Special
Servicer, "Prudential Asset Resources Inc. [or the name of any successor RREEF
Textron Special Servicer], as RREEF Textron Special Servicer, on behalf of
LaSalle Bank National Association, as Trustee [or the name of any successor
Trustee], in trust for the registered holders of Bear ▇▇▇▇▇▇▇ Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2002-PBW1, and for [name of RREEF Textron B-Note Holder]", REO Account.
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09.
"REO Disposition": The sale or other disposition of any REO Property
pursuant to Section 3.18.
"REO Extension" As defined in Section 3.16(a).
"REO Mortgage Loan": The mortgage loan deemed for purposes hereof to be
outstanding with respect to each REO Property. Each REO Mortgage Loan shall be
deemed to provide for monthly payments of principal and/or interest equal to its
Assumed Monthly Payment and otherwise to have the same terms and conditions as
its predecessor Mortgage Loan (such terms and conditions to be applied without
regard to the default on such predecessor Loan and the acquisition of the
related REO Property as part of the Trust Fund). Each REO Mortgage Loan shall be
deemed to have an initial unpaid principal balance and Stated Principal Balance
equal to the unpaid principal balance and Stated Principal Balance,
respectively, of its predecessor Loan as of the date of the related REO
Acquisition. All Monthly Payments (other than a Balloon Payment), Assumed
Monthly Payments (in the case of a Balloon Mortgage Loan delinquent in respect
of its Balloon Payment) and other amounts due and owing, or deemed to be due and
owing, in respect of the predecessor Mortgage Loan as of the date
-73-
of the related REO Acquisition, shall be deemed to continue to be due and owing
in respect of an REO Mortgage Loan. In addition, all amounts payable or
reimbursable to the applicable Master Servicer, the applicable Special Servicer,
the Trustee or the Fiscal Agent in respect of the predecessor Mortgage Loan as
of the date of the related REO Acquisition, including any unpaid or unreimbursed
Master Servicing Fees, Special Servicing Fees and Advances (together with any
related unpaid Advance Interest), shall continue to be payable or reimbursable
in the same priority and manner pursuant to Section 3.05(a) to the applicable
Master Servicer, the applicable Special Servicer, the Trustee or the Fiscal
Agent, as the case may be, in respect of an REO Mortgage Loan.
"REO Pooled Mortgage Loan": An REO Mortgage Loan that relates to a
predecessor Pooled Mortgage Loan.
"REO Property": A Mortgaged Property acquired on behalf and in the name
of the Trustee for the benefit of the Certificateholders (and, in the case of
the RREEF Textron Mortgaged Property, also on behalf of the RREEF Textron B-Note
Holder) through foreclosure, acceptance of a deed-in-lieu of foreclosure or
otherwise in accordance with applicable law in connection with the default or
imminent default of a Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds derived from
the ownership, operation or leasing of any REO Property, other than any income,
profits or proceeds derived from the REO Disposition of such REO Property.
"REO Tax": As defined in Section 3.17(a).
"Replacement Pooled Mortgage Loan": Any Qualifying Substitute Mortgage
Loan that is substituted by a Pooled Mortgage Loan Seller for a Defective Pooled
Mortgage Loan as contemplated by Section 2.03.
"Request for Release": A request signed by a Servicing Officer of, as
applicable, a Master Servicer in the form of Exhibit C-1 attached hereto or a
Special Servicer in the form of Exhibit C-2 attached hereto.
"Required Appraisal Loan": As defined in Section 3.19(a).
"Required Claims-Paying Ratings": With respect to any insurance
carrier, claims-paying ability ratings at least equal to (i) in the case of
fidelity bond coverage provided by such insurance ▇▇▇▇▇▇▇, "▇▇" by ▇▇▇▇▇'▇ and
"A" by Fitch if rated by Fitch, or if not rated by Fitch, then rated "A: VII" by
A.M Best,
-74-
(ii) in the case of a policy or policies of insurance issued by such insurance
carrier covering loss occasioned by the errors and omissions of officers and
employees, "A2" by ▇▇▇▇▇'▇ and "A" by Fitch, if rated by Fitch, or if not rated
by Fitch, then rated "A: VII" by A.M Best, and (ii) in the case of any other
insurance coverage provided by such insurance ▇▇▇▇▇▇▇, "▇▇" by ▇▇▇▇▇'▇ and "A"
by Fitch; provided, however, that (A) an insurance carrier shall be deemed to
have the applicable claims-paying ability ratings set forth above if the
obligations of such insurance carrier under the related insurance policy are
guaranteed or backed by an entity that has long-term unsecured debt obligations
that are rated not lower than the ratings set forth above or claim-paying
ability ratings that are not lower than the ratings set forth above; and (B) an
insurance carrier shall be deemed to have the applicable claims-paying ability
ratings set forth above if each of the Rating Agencies has confirmed in writing
that such insurance carrier would not result in an Adverse Rating Event with
respect to any Class of Rated Certificates (and, if the insurance carrier is an
issuer of an insurance policy relating to the RREEF Textron Mortgage Loan Pair
or any RREEF Textron Mortgaged Property, the RREEF Textron Controlling Party has
confirmed in writing that such insurance carrier is acceptable to the RREEF
Textron Controlling Party), unless (with respect to policies maintained by
Borrowers) a higher claims-paying ability rating is required under any of the
Mortgage Loan Documents.
"Reserve Account": Any of the accounts established and maintained
pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Mortgage Loan, any amounts
delivered by the related Borrower to be held in escrow by or on behalf of the
mortgagee representing: (i) reserves for repairs, replacements, capital
improvements and/or environmental testing and remediation with respect to the
related Mortgaged Property; (ii) reserves for tenant improvements and leasing
commissions; (iii) reserves for debt service; or (iv) amounts to be applied as a
Principal Prepayment on such Mortgage Loan or held as Additional Collateral in
the event that certain leasing or other economic criteria in respect of the
related Mortgaged Property are not met.
"Resolution Extension Period": As defined in Section 2.03(b).
"Responsible Officer": When used (a) with respect to the Certificate
Administrator, any Vice President, any Trust Officer, any Assistant Secretary or
any other officer of the Certificate Administrator customarily performing
functions similar to those performed by any of the above designated officers and
having direct responsibility for the administration of this Agreement;
-75-
and (b) with respect to the Fiscal Agent or the Trustee, any vice president or
trust officer thereof.
"Restricted Servicer Reports": Each of the CMSA Servicer Watch List,
the CMSA Operating Statement Analysis Report, the CMSA NOI Adjustment Worksheet,
CMSA Financial File and the CMSA Comparative Financial Status Report.
"RREEF Textron Assignment and Assumption Agreement" shall have the
meaning assigned thereto in Section 3.27(b).
"RREEF Textron B-Note" shall mean, collectively, the Mortgage Notes for
the RREEF Textron B-Note Mortgage Loan.
"RREEF Textron B-Note Account" shall mean a segregated account or
accounts created and maintained by the Master Servicer, pursuant to Section
3.04(e), in trust for the RREEF Textron B-Note Holder, which shall be entitled
"Prudential Asset Resources, Inc. [or the name of any successor Master
Servicer], as Master Servicer, in trust for [name of RREEF Textron B-Note
Holder]".
"RREEF Textron B-Note Holder" shall mean the holder of the RREEF
Textron B-Note.
"RREEF Textron B-Note Mortgage Loan" shall mean the Mortgage Loan, in
the original principal amount of $39,000,000 that is secured by the same
Mortgage on the RREEF Textron Mortgaged Property as the RREEF Textron Pooled
Mortgage Loan. The RREEF Textron B-Note Mortgage Loan is not part of the Trust
Fund, any REMIC Pool or either Grantor Trust Pool.
"RREEF Textron Borrower" shall mean the Borrowers under the RREEF
Textron Mortgage Loan Pair.
"RREEF Textron Change of Control Event" shall mean that, as of any date
of determination, the Appraisal Reduction Amount for the RREEF Textron Mortgage
Loan Pair (calculated as if the RREEF Textron Mortgage Loan Pair was a single
Pooled Mortgage Loan), together with any related Realized Losses of interest and
Additional Trust Fund Expenses, is in excess of 75% of the unpaid principal
amount of the RREEF Textron B-Note Mortgage Loan.
"RREEF Textron Co-Lender Agreement" shall have the meaning assigned
thereto in Section 3.27(a).
-76-
"RREEF Textron Controlling Party" shall mean:
(a) if a RREEF Textron Change of Control Event has occurred and is
continuing, the Controlling Class Representative; and
(b) in all other cases, the RREEF Textron B-Note Holder.
"RREEF Textron Mortgage Loan Pair" shall mean the RREEF Textron Pooled
Mortgage Loan and the RREEF Textron B-Note Mortgage Loan, together.
"RREEF Textron Pooled Mortgage Loan" shall mean the Pooled Mortgage
Loans identified on Schedule I-A as "RREEF Textron Portfolio 10 Year" and "RREEF
Textron Portfolio 7 Year", which Pooled Mortgage Loans are together secured by a
Mortgage on the RREEF Textron Mortgaged Property.
"RREEF Textron Mortgaged Property" shall mean the Mortgaged Property
identified on the Pooled Mortgage Loan Schedule as the RREEF Textron Portfolio.
"RREEF Textron Special Servicer" shall mean PAR, in its capacity as
special servicer hereunder with respect to the RREEF Textron Mortgage Loan Pair,
or any successor special servicer of the RREEF Textron Mortgage Loan Pair
appointed as provided herein.
"RREEF Textron Sub-Servicer": Any Sub-Servicer of the RREEF Textron
Mortgage Loan Pair appointed by the Master Servicer with the approval or at the
direction of the RREEF Textron Controlling Party or, if different, the RREEF
Textron B-Note Holder.
"RREEF Textron Sub-Servicing Agreement": The Sub-Servicing Agreement
between the RREEF Textron Sub-Servicer and the applicable Master Servicer.
"Rule 144A Global Certificate": With respect to any Class of Book-Entry
Non-Registered Certificates, a single global Certificate, or multiple global
Certificates collectively, registered in the name of the Depository or its
nominee, in definitive, fully registered form without interest coupons, each of
which Certificates bears a Qualified Institutional Buyer CUSIP number and does
not bear a Regulation S Legend.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification": As defined in Section 8.15(b).
-77-
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage Loan, any security
agreement, chattel mortgage or similar document or instrument creating in favor
of the holder of such Mortgage a security interest in the personal property
constituting security for repayment of such Mortgage Loan.
"Senior Certificate": Any Class A-1, Class A-2, Class X-1 or Class X-2
Certificate.
"Servicer Report Administrator": PAR as Master Servicer (without regard
to the final sentence of the definition of "Master Servicer") or any successor
thereto appointed as provided herein.
"Servicer Report Administrator Fee: With respect to each Pooled
Mortgage Loan and REO Pooled Mortgage Loan, the fee designated as such and
payable to the Servicer Report Administrator pursuant to Section 8.05(a).
"Servicer Report Administrator Fee Rate": 0.0005% per annum.
"Servicing Account": The account or accounts established and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary
"out-of-pocket" costs and expenses, including reasonable attorneys' fees and
expenses, incurred or to be incurred, as the context requires, by the applicable
Master Servicer or Special Servicer (or, if applicable, the Trustee or the
Fiscal Agent) in connection with the servicing of a Mortgage Loan as to which a
default, delinquency or other unanticipated event has occurred or is imminent,
or in connection with the administration of any REO Property, including:
(1) any such costs and expenses associated with (a) compliance
with the obligations of the applicable Master Servicer and/or the
applicable Special Servicer set forth in Sections 2.03, 3.03(c) and 3.09,
(b) the preservation, insurance, restoration, protection and management of
a Mortgaged Property, including the cost of any "force placed" insurance
policy purchased by the applicable Master Servicer or Special Servicer to
the extent such cost is allocable to a particular Mortgaged Property that
the applicable Master Servicer or Special Servicer is required to cause to
be insured pursuant to Section 3.07(a), (c) obtaining any Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds in respect of any
such Mortgage Loan or any REO Property, (d)
-78-
any enforcement or judicial proceedings with respect to any such Mortgage
Loan, including foreclosures and similar proceedings, (e) the operation,
management, maintenance and liquidation of any REO Property, (f) obtaining
any Appraisal required to be obtained hereunder, and (g) UCC filings (to
the extent that the costs thereof are not reimbursed by the related
Borrower),
(2) the reasonable and direct out-of-pocket travel expenses
incurred by the applicable Special Servicer in connection with performing
inspections pursuant to Section 3.12(a), and
(3) any other expenditure which is expressly designated as a
Servicing Advance herein;
provided that, notwithstanding anything to the contrary, "Servicing Advances"
shall not include (A) allocable overhead of a Master Servicer or Special
Servicer, as the case may be, such as costs for office space, office equipment,
supplies and related expenses, employee salaries and related expenses and
similar internal costs and expenses, (B) costs incurred by either such party or
any Affiliate thereof in connection with its purchase of any Mortgage Loan or
REO Property pursuant to any provision of this Agreement or any Intercreditor
Agreement or (C) costs or expenses expressly required under this Agreement to be
borne by a Master Servicer or Special Servicer.
All Emergency Advances made by the Master Servicer at the direction of
the Special Servicer hereunder shall be considered "Servicing Advances" for the
purposes hereof.
"Servicing File": Any documents (other than documents required to be
part of the related Mortgage File) that are in the possession or under the
control of, or that are required (pursuant to the applicable Pooled Mortgage
Loan Purchase Agreement, this Agreement or otherwise) to be delivered and
actually have been delivered to, as the context may require, the applicable
Master Servicer or Special Servicer and relating to the origination and
servicing of any Mortgage Loan or the administration of any REO Property and
reasonably necessary for the ongoing administration and/or servicing of the
applicable Mortgage Loan, including any documents delivered by a Pooled Mortgage
Loan Seller as described in clause (i) of Section 2.01(f).
"Servicing Officer": Any officer or employee of a Master Servicer or
Special Servicer involved in, or responsible for, the administration and
servicing of Mortgage Loans, whose name and specimen signature appear on a
-79-
list of servicing officers furnished by such party to the Certificate
Administrator, the Trustee and the Depositor on the Closing Date, as such list
may thereafter be amended from time to time by such Master Servicer or such
Special Servicer.
"Servicing Released Bid": As defined in Section 7.01(c).
"Servicing Retained Bid": As defined in Section 7.01(c).
"Servicing Return Date": With respect to any Corrected Mortgage Loan,
the date that servicing thereof is returned by the applicable Special Servicer
to the applicable Master Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master Servicers and
Special Servicers, to service and administer the Mortgage Loans and any REO
Properties that such party is obligated to service and administer pursuant to
this Agreement in the best interests and for the benefit of the
Certificateholders (or, in the case of the RREEF Textron Mortgage Loan Pair, for
the benefit of the Certificateholders and the RREEF Textron B-Note Holder) (as
determined by the applicable Master Servicer or the applicable Special Servicer,
as the case may be, in its good faith and reasonable judgment), as a collective
whole, in accordance with applicable law and the terms of this Agreement, and
the respective Mortgage Loans (including, with respect to the RREEF Textron
Mortgage Loan Pair, the RREEF Textron Co-Lender Agreement) and, to the extent
consistent with the foregoing, in accordance with:
(a) with the same care, skill, prudence and diligence as it
services and administers comparable mortgage loans and manages real
properties on behalf of third parties or on behalf of itself, whichever is
the higher standard with respect to mortgage loans and REO properties that
are comparable to those for which it is responsible hereunder, giving due
consideration to customary and usual standards of practice utilized by
prudent institutional commercial mortgage loan servicers under comparable
circumstances;
(b) with a view to: (i) the timely collection of all scheduled
payments of principal and interest, including Balloon Payments, under the
Mortgage Loans and the full collection of all Prepayment Premiums and Yield
Maintenance Charges that may become payable under such Mortgage Loans, and
(ii) in the case of the applicable Special Servicer and any such Mortgage
Loan that is (A) a Specially Serviced Mortgage Loan that such Special
Servicer determines, in its reasonable, good faith judgment, will not
become a Corrected Mortgage Loan or (B) a Mortgage
-80-
Loan as to which the related Mortgaged Property has become an REO Property,
the maximization of recovery on the Mortgage Loan to the Certificateholders
(or, in the case of the RREEF Textron Mortgage Loan Pair, to the
Certificateholders and the RREEF Textron B-Note Holder) (as a collective
whole) of principal and interest, including Balloon Payments, on a present
value basis (the relevant discounting of anticipated collections that will
be distributable to the Certificateholders (or, in the case of the RREEF
Textron Mortgage Loan Pair, to the Certificateholders and the RREEF Textron
B-Note Holder), as a collective whole, to be performed at the related Net
Mortgage Rate; and
(c) without regard to (i) any known relationship that the applicable
Master Servicer or the applicable Special Servicer, as the case may be, or any
of its Affiliates may have with the related Borrower or with any other party to
this Agreement, (ii) the ownership of any Certificate or any interest in the
RREEF Textron B-Note Mortgage Loan by the applicable Master Servicer or the
applicable Special Servicer, as the case may be, or any of its Affiliates, (iii)
the obligation of the applicable Master Servicer to make Advances, (iv) the
obligation of the applicable Special Servicer to make, or direct the applicable
Master Servicer to make, Servicing Advances (including Emergency Advances), (v)
the right of the applicable Master Servicer or the applicable Special Servicer,
as the case may be, or any of its Affiliates to receive reimbursement of costs,
or the sufficiency of any compensation payable to it, hereunder or with respect
to any particular transaction, (vi) any ownership, servicing and/or management
by the applicable Master Servicer or the applicable Special Servicer, as the
case may be, or any of its Affiliates, of any other mortgage loans or real
property, (vii) the ownership by the applicable Master Servicer or the
applicable Special Servicer, as the case may be, or any of its Affiliates of any
other debt owed by, or secured by ownership interests in, any of the Borrowers
or any Affiliate of a Borrower, and (viii) the obligations of the applicable
Master Servicer or the applicable Special Servicer, as the case may be, or any
of its Affiliates to repurchase any Mortgage Loan from the Trust Fund, or to
indemnify the Trust Fund, in any event as a result of a Material Breach or a
Material Document Defect.
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the events described in clauses (a) through (h) of the
definition of "Specially Serviced Mortgage Loan".
"Similar Law": As defined in Section 5.02(c).
"Sole Certificateholder(s)": Any Holder or group of Holders, as the
case may be, of 100% of the then outstanding Certificates.
-81-
"Special Servicer": With respect to (i) each Mortgage Loan other than
the RREEF Textron Loan Pair, the General Special Servicer and (ii) the RREEF
Textron Loan Pair, the RREEF Textron Special Servicer.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Mortgage Loan, the fee designated as such and payable
to the applicable Special Servicer pursuant to the first paragraph of Section
3.11(c).
"Special Servicing Fee Rate": With respect to each Specially Serviced
Mortgage Loan and each REO Mortgage Loan, 0.25% per annum.
"Specially Designated Defaulted Pooled Mortgage Loan": A Specially
Serviced Mortgage Loan (i) that is delinquent 120 days or more with respect to
any Balloon Payment or 60 days or more with respect to any other Monthly
Payment, with such delinquency to be determined without giving effect to any
grace period permitted by the related Mortgage or Mortgage Note and without
regard to any acceleration of payments under the related Mortgage and Mortgage
Note, or (ii) as to which the amounts due thereunder have been accelerated
following any other material default.
"Specially Designated Mortgage Loan Documents": With respect to any
Pooled Mortgage Loan, subject to Section 1.04, the following documents on a
collective basis:
(i) the original executed Mortgage Note or alternatively, if the
original executed Mortgage Note has been lost, a lost note affidavit
and indemnity with a copy of such Mortgage Note;
(ii) an original or a copy of the Mortgage, in each case (unless
the particular item has not been returned from the applicable recording
office) with evidence of recording indicated thereon; provided that if
such original Mortgage cannot be delivered with evidence of recording
thereon on or prior to the 90th day following the Closing Date because
of a delay caused by the public recording office where such original
Mortgage has been delivered for recordation or because such original
Mortgage has been lost, there shall be delivered to the Trustee or a
Custodian on its behalf a true and correct copy of such Mortgage,
together with (A) in the case of a delay caused by the public recording
office, an Officer's Certificate of the applicable Pooled Mortgage Loan
-82-
Seller stating that such original Mortgage has been sent to the
appropriate public recording official for recordation or (B) in the
case of an original Mortgage that has been lost after recordation, a
certification by the appropriate county recording office where such
Mortgage is recorded that such copy is a true and complete copy of the
original recorded Mortgage;
(iii) the original or a copy of any related Assignment of Leases
(if any such item is a document separate from the Mortgage), in each
case (unless the particular item has not been returned from the
applicable recorder) with evidence of recording thereon;
(iv) the original or a copy of the policy or certificate of
lender's title insurance issued in connection with such Mortgage Loan
(or, if the policy has not yet been issued, an original or copy of a
written commitment "marked-up" at the closing of such Mortgage Loan,
interim binder or the pro forma title insurance policy evidencing a
binding commitment to issue such policy);
(v) if a material portion of the interest of the Borrower in the
related Mortgaged Property consists of a leasehold interest, the
original or a copy of the Ground Lease relating to such Mortgage Loan;
and
(vi) any Letter of Credit evidencing or constituting Additional
Collateral (provided that the originals of any such Letter of Credit
shall be delivered to the applicable Master Servicer with a copy to be
contained in the Mortgage File).
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to which any
of the following events has occurred:
(a) the related Borrower has failed to make when due any Balloon
Payment, and the Borrower has not delivered to the applicable Master
Servicer, on or prior to the due date of such Balloon Payment, a written
refinancing commitment from an acceptable lender and reasonably
satisfactory in form and substance to the Master Servicer which provides
that such refinancing will occur within 120 days after the date on which
such Balloon Payment will become due (provided that such Mortgage Loan
shall immediately become a Specially Serviced Mortgage Loan if either (x)
such refinancing does not occur before the expiration of
-83-
the time period for refinancing specified in such binding commitment or (y)
the Master Servicer is required to make a P&I Advance in respect of the
related Pooled Mortgage Loan at any time prior to such a refinancing); or
(b) the related Borrower has failed to make when due any Monthly
Payment (other than a Balloon Payment) or any other payment (other than a
Balloon Payment) required under the related Mortgage Note or the related
Mortgage, which failure has continued unremedied for sixty (60) days; or
(c) the applicable Master Servicer or the applicable Special
Servicer determines (in accordance with the Servicing Standard) that a
default in making any Monthly Payment (other than a Balloon Payment) or any
other material payment (other than a Balloon Payment) required under the
related Mortgage Note or the related Mortgage is likely to occur in the
foreseeable future, and such default is likely to remain unremedied for at
least sixty (60) days beyond the date on which the subject payment will
become due; or the applicable Master Servicer determines (in accordance
with the Servicing Standard) that a default in making a Balloon Payment is
likely to occur in the foreseeable future, and such default is likely to
remain unremedied for at least sixty (60) days beyond the date on which
such Balloon Payment will become due (or, if the Borrower has delivered a
written refinancing commitment from an acceptable lender and reasonably
satisfactory in form and substance to the applicable Master Servicer which
provides that such refinancing will occur within 120 days after the date of
such Balloon Payment, such Master Servicer determines (in accordance with
the Servicing Standard) that (A) the Borrower is likely not to make one or
more Assumed Scheduled Payments prior to such a refinancing or (B) such
refinancing is not likely to occur within 120 days following the date on
which such Balloon Payment will become due); or
(d) there shall have occurred a default (including, in the Master
Servicer's or Special Servicer's judgment, the failure of the related
Borrower to maintain any insurance required to be maintained pursuant to
the related Mortgage Loan Documents, unless such default has been waived in
accordance with Section 3.07 or Section 3.20 hereof) under the related
Mortgage Loan Documents, other than as described in clause (a), (b) or (c)
above, that may, in the Master Servicer's or the Special Servicer's good
faith and reasonable judgment, materially impair the value of the related
Mortgaged Property as security for such Mortgage Loan or
-84-
otherwise materially and adversely affect the interests of
Certificateholders, which default has continued unremedied for the
applicable cure period under the terms of the Mortgage Loan (or, if no cure
period is specified, 60 days); or
(e) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar
law or the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the related Borrower and such decree or
order shall have remained in force undischarged or unstayed for a period of
60 days; or
(f) the related Borrower shall have consented to the appointment
of a conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings of or
relating to such Borrower or of or relating to all or substantially all of
its property; or
(g) the related Borrower shall have admitted in writing its
inability to pay its debts generally as they become due, filed a petition
to take advantage of any applicable insolvency or reorganization statute,
made an assignment for the benefit of its creditors, or voluntarily
suspended payment of its obligations; or
(h) the applicable Master Servicer or the Special Servicer shall
have received notice of the commencement of foreclosure or similar
proceedings with respect to the related Mortgaged Property.
provided that a Mortgage Loan will cease to be a Specially Serviced Mortgage
Loan, when a Liquidation Event has occurred in respect of such Mortgage Loan, or
at such time as such of the following as are applicable occur with respect to
the circumstances identified above that caused the Mortgage Loan to be
characterized as a Specially Serviced Mortgage Loan (and provided that no other
Servicing Transfer Event then exists):
(w) with respect to the circumstances described in clauses (a)
and (b) above, the related Borrower has made three consecutive full and
timely Monthly Payments under the terms of such Mortgage Loan (as such
terms may be changed or modified in connection with a
-85-
bankruptcy or similar proceeding involving the related Borrower or by
reason of a modification, waiver or amendment granted or agreed to by the
applicable Special Servicer pursuant to Section 3.20);
(x) with respect to the circumstances described in clauses (c),
(e), (f), and (g) above, such circumstances cease to exist in the good
faith reasonable judgment of the applicable Special Servicer;
(y) with respect to the circumstances described in clause (d)
above, such default is cured in the good faith reasonable judgment of the
applicable Special Servicer; and
(z) with respect to the circumstances described in clause (h)
above, such proceedings are terminated.
Notwithstanding the foregoing, if a Servicing Transfer Event exists as
contemplated above in this definition for either Mortgage Loan in the RREEF
Textron Loan Pair it shall be deemed to exist for the other Mortgage Loan in the
RREEF Textron Loan Pair.
"Startup Day": With respect to each REMIC Pool, the day designated as
such in Section 2.12(a) (in the case of REMIC I), Section 2.14(a) (in the case
of REMIC II) or Section 2.16(a) (in the case of REMIC III), as applicable.
"Stated Maturity Date": With respect to any Mortgage Loan, the Due Date
specified in the related Mortgage Note (as in effect on the Closing Date or, in
the case of a Replacement Pooled Mortgage Loan, on the related date of
substitution) on which the last payment of principal is due and payable under
the terms of such Mortgage Note, without regard to any change in or modification
of such terms in connection with a bankruptcy or similar proceeding involving
the related Borrower or a modification, waiver or amendment of such Mortgage
Loan granted or agreed to by the applicable Master Servicer or Special Servicer
pursuant to Section 3.20 and, in the case of an ARD Mortgage Loan, without
regard to its Anticipated Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan (and any
successor REO Mortgage Loan), a principal balance which (a) initially shall
equal the unpaid principal balance thereof as of the related Due Date in October
2002 or, in the case of any Replacement Pooled Mortgage Loan, as of the related
date of substitution, in any event after application of all payments of
principal due thereon on or before such date, whether or not received, and (b)
-86-
shall be permanently reduced on each subsequent Distribution Date (to not less
than zero) by (i) that portion, if any, of the Principal Distribution Amount for
such Distribution Date attributable to such Mortgage Loan (or successor REO
Mortgage Loan), (ii) the principal portion of any Realized Loss incurred in
respect of such Mortgage Loan (or successor REO Mortgage Loan) during the
related Collection Period and (iii) the amount of any and all related Special
Servicing Fees, Liquidation Fees and/or Advance Interest that were applied, in
accordance with the definition of "Principal Distribution Amount", to reduce the
portion of the Principal Distribution Amount for such Distribution Date
attributable to such Mortgage Loan (or successor REO Loan); provided that, if a
Liquidation Event occurs in respect of any Mortgage Loan or REO Property, then
the "Stated Principal Balance" of such Mortgage Loan or of the related REO
Mortgage Loan, as the case may be, shall be zero commencing as of the close of
business on the Distribution Date next following the Collection Period in which
such Liquidation Event occurred.
"Sub-Servicer": Any Person with which a Master Servicer or Special
Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between a Master
Servicer or Special Servicer, on the one hand, and any Sub-Servicer, on the
other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
"Substitution Shortfall Amount": In connection with the substitution of
one or more Replacement Pooled Mortgage Loans for any Defective Pooled Mortgage
Loan, the amount, if any, by which the Purchase Price for such Defective Pooled
Mortgage Loan (calculated as if it were to be repurchased, instead of replaced,
on the relevant date of substitution), exceeds the Stated Principal Balance or
the aggregate Stated Principal Balance, as the case may be, of such Replacement
Pooled Mortgage Loan(s) as of the date of substitution.
"Successful Bidder": As defined in Section 7.01(c).
"Tax Administrator": ▇▇▇▇▇ Fargo Bank Minnesota, N.A., in its capacity
as tax administrator hereunder, or any successor tax administrator appointed as
herein provided.
"Tax Matters Person": With respect to any REMIC Pool, the Person
designated as the "tax matters person" of such REMIC Pool in the manner provided
under Treasury regulation section 1.860F-4(d) and temporary Treasury
-87-
regulation section 301.6231(a)(7)-1T, which Person shall, pursuant to Section
10.01(b), be the Holder of Certificates evidencing the largest Percentage
Interest in the Class R Certificates.
"Tax Returns": The federal income tax return on IRS Form 1066, U.S.
Real Estate Mortgage Investment Conduit Income (REMIC) Tax Return, including
Schedule Q thereto, Quarterly Notice to Residual Interest Holder of REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to be filed on
behalf of each REMIC Pool due to its classification as a REMIC under the REMIC
Provisions, together with any and all other information, reports or returns that
may be required to be furnished to the Certificateholders or filed with the IRS
under any applicable provisions of federal tax law or any other governmental
taxing authority under applicable state or local tax laws.
"Termination Price": As defined in Section 9.01(a).
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section 5.02(d).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer of any Ownership
Interest in a Certificate.
"Trust": The trust created hereby.
"Trust Fund": Collectively, all of the assets of all the REMIC Pools
and both of the Grantor Trust Pools.
"Trustee": LaSalle, in its capacity as trustee hereunder, or any
successor trustee appointed as herein provided.
"Trustee Fee": With respect to each Pooled Mortgage Loan and REO Pooled
Mortgage Loan, the fee designated as such and payable to the Trustee pursuant to
Section 8.05(a). The Trustee Fee includes the Certificate Administrator Fee.
"Trustee Fee Rate": 0.0028% per annum.
-88-
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement filed, or to be filed,
pursuant to the UCC.
"Uncertificated Notional Amount": The notional amount on which any
REMIC III Component of the Class X-1 or Class X-2 Certificates accrues interest
from time to time, calculated in accordance with Section 2.16(e) hereof.
"Uncertificated Principal Balance": The principal balance outstanding
from time to time of any REMIC I Regular Interest (calculated in accordance with
Section 2.12(e) hereof) or any REMIC II Regular Interest (calculated in
accordance with Section 2.14(e) hereof).
"Underwriters": Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated and ▇▇▇▇▇ Fargo Brokerage Services, LLC.
"Underwriter Exemption": PTE 90-30 (with respect to any Certificates
initially sold by the Depositor to Bear, ▇▇▇▇▇▇▇ & Co. Inc. or ▇▇▇▇▇ Fargo
Brokerage Services, LLC) or PTE 90-29 (with respect to any Certificates
initially sold by the Depositor to ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated), each as amended by ▇▇▇ ▇▇-▇▇, ▇▇▇ ▇▇▇▇-▇▇, ▇▇▇ ▇▇▇▇-▇▇ and as may
be subsequently amended following the Closing Date.
"United States Securities Person": Any "U.S. person" as defined in Rule
902(k) of Regulation S.
"United States Tax Person": A citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate
whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
Tax Persons have the authority to control all substantial decisions of the
trust, all within the meaning of Section 7701(a)(30) of the Code.
"Unrestricted Servicer Reports": each of the files and reports
comprising the CMSA Investor Reporting Package (excluding the CMSA Bond
-89-
Level File, the CMSA Collateral Summary File and the Restricted Servicer
Reports).
"USAP": The Uniform Single Attestation Program for Mortgage Bankers
established by the Mortgage Bankers Association of America.
"USPAP": The Uniform Standards of Professional Appraisal Practices.
"Voting Rights": The voting rights evidenced by the respective
Certificates. At all times during the term of this Agreement, 99.0% of the
Voting Rights shall be allocated among all the Holders of the various Classes of
Principal Balance Certificates in proportion to the respective Class Principal
Balances of such Classes, and 1.0% of the Voting Rights shall be allocated among
all the Holders of the various Classes of Interest Only Certificates in
proportion to the respective Class Notional Amounts of such Classes. Voting
Rights allocated to a particular Class of Certificateholders shall be allocated
among such Certificateholders in proportion to the respective Percentage
Interests evidenced by their respective Certificates. No Voting Rights shall be
allocated to the Class R or Class V Certificateholders.
"Weighted Average REMIC I Remittance Rate": As defined in Section
2.14(f).
"WFB": ▇▇▇▇▇ Fargo Bank, National Association, or its successor in
interest.
"WFBNA": ▇▇▇▇▇ Fargo Bank Minnesota, N.A., or its successor in
interest.
"WFB Mortgage Loan": Any Mortgage Loan that is either an Original WFB
Mortgage Loan or a Replacement Pooled Mortgage Loan that was delivered under the
WFB Pooled Mortgage Loan Purchase Agreement in substitution for an Original WFB
Mortgage Loan.
"WFB Pooled Mortgage Loan Purchase Agreement": That certain Pooled
Mortgage Loan Purchase Agreement dated as of October 3, 2002, between WFB and
the Depositor.
"Within Grace Period Loan": With respect to any Master Servicer
Remittance Date, any Mortgage Loan having any Monthly Payment remaining unpaid
past its Due Date, as of the close of business on the Determination Date in
-90-
the same calendar month, but which is not delinquent past the applicable grace
period for such Monthly Payment as of the close of business on such
Determination Date.
"Workout Fee": The fee designated as such in, and payable to the
applicable Special Servicer in connection with certain recoveries on a Corrected
Mortgage Loan pursuant to, the second paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan, 1.0%.
"Yield Maintenance Charge": With respect to any Mortgage Loan, any
premium, fee or other additional amount paid or payable, as the context
requires, by a Borrower in connection with a Principal Prepayment on, or other
early collection of principal of, a Mortgage Loan, calculated, in whole or in
part, pursuant to a yield maintenance formula or otherwise pursuant to a formula
that reflects the lost interest, including any specified amount or specified
percentage of the amount prepaid which constitutes the minimum amount that such
Yield Maintenance Charge may be.
SECTION 1.02. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(i) the terms defined in this Agreement include the plural as well as
the singular, and the use of any gender herein shall be deemed to include
the other gender;
(ii) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP as in effect from time to time;
(iii) references herein to "Articles", "Sections", "Subsections",
"Paragraphs" and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which
the reference appears, and this rule shall also apply to Paragraphs and
other subdivisions;
-91-
(v) the words "herein", "hereof", "hereunder", "hereto", "hereby" and
other words of similar import refer to this Agreement as a whole and not to
any particular provision; and
(vi) the terms "include" and "including" shall mean without limitation
by reason of enumeration.
SECTION 1.03. Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts collected by or on behalf of the Trust in respect of
any Cross-Collateralized Group, including any payments from Borrowers, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds, shall be applied among
the Mortgage Loans constituting such Cross-Collateralized Group in accordance
with the express provisions of the related Mortgage Loan Documents and, in the
absence of such express provisions, in accordance with the Servicing Standard.
All amounts collected by or on behalf of the Trust in respect of or allocable to
any particular Pooled Mortgage Loan (whether or not such Pooled Mortgage Loan
constitutes part of a Cross-Collateralized Group, but excluding the RREEF
Textron Pooled Mortgage Loan), including any payments from Borrowers, Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds, shall be applied to
amounts due and owing under the related Mortgage Note and Mortgage (including
for principal and accrued and unpaid interest) in accordance with the express
provisions of the related Mortgage Loan Documents and, in the absence of such
express provisions or if and to the extent that such terms authorize the lender
to use its discretion, shall be applied: first, as a recovery of any related and
unreimbursed Servicing Advances and, if applicable, unpaid Liquidation Expenses;
second, as a recovery of accrued and unpaid interest on such Mortgage Loan to,
but not including, the Due Date in the Collection Period in which the collection
occurred, exclusive, however, of any portion of such accrued and unpaid interest
that constitutes Default Interest or, in the case of an ARD Mortgage Loan after
its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest;
third, as a recovery of principal of such Mortgage Loan then due and owing,
including by reason of acceleration of the Pooled Mortgage Loan following a
default thereunder (or, if a Liquidation Event has occurred in respect of such
Pooled Mortgage Loan, as a recovery of principal to the extent of its entire
remaining unpaid principal balance); fourth, unless a Liquidation Event has
occurred in respect of such Pooled Mortgage Loan, as a recovery of amounts to be
currently applied to the payment of, or escrowed for the future payment of, real
estate taxes, assessments, insurance premiums, ground rents (if applicable) and
similar items; fifth, unless a Liquidation Event has occurred in respect of such
Pooled Mortgage
-92-
Loan, as a recovery of Reserve Funds to the extent then required to be held in
escrow; sixth, as a recovery of any Default Charges then due and owing under
such Mortgage Loan; seventh, as a recovery of any Prepayment Premium or Yield
Maintenance Charge then due and owing under such Pooled Mortgage Loan; eighth,
as a recovery of any assumption fees and modification fees then due and owing
under such Pooled Mortgage Loan; ninth, as a recovery of any other amounts then
due and owing under such Pooled Mortgage Loan other than remaining unpaid
principal and, in the case of an ARD Mortgage Loan after its Anticipated
Repayment Date, other than Post-ARD Additional Interest; tenth, as a recovery of
any remaining principal of such Pooled Mortgage Loan to the extent of its entire
remaining unpaid principal balance; and, eleventh, in the case of an ARD
Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and
unpaid Post-ARD Additional Interest on such ARD Mortgage Loan to but not
including the date of receipt by or on behalf of the Trust.
(b) Collections by or on behalf of the Trust in respect of each REO
Property (other than, if applicable, any REO Property acquired in respect of the
RREEF Textron Mortgage Loan Pair) (exclusive of amounts to be applied to the
payment of the costs of operating, managing, maintaining and disposing of such
REO Property) shall be treated: first, as a recovery of any related and
unreimbursed Servicing Advances and, if applicable, unpaid Liquidation Expenses;
second, as a recovery of accrued and unpaid interest on the related REO Pooled
Mortgage Loan to, but not including, the Due Date in the Collection Period of
receipt, by or on behalf of the Trust, exclusive, however, of any portion of
such accrued and unpaid interest that constitutes Default Interest or, in the
case of an REO Pooled Mortgage Loan that relates to an ARD Mortgage Loan after
its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest;
third, as a recovery of principal of the related REO Pooled Mortgage Loan to the
extent of its entire unpaid principal balance; fourth, as a recovery of any
Default Charges deemed to be due and owing in respect of the related REO Pooled
Mortgage Loan; fifth, as a recovery of any Prepayment Premium or Yield
Maintenance Charge deemed to be due and owing in respect of the related REO
Pooled Mortgage Loan; sixth, as a recovery of any other amounts deemed to be due
and owing in respect of the related REO Mortgage Loan (other than, in the case
of an REO Pooled Mortgage Loan that relates to an ARD Mortgage Loan after its
Anticipated Repayment Date, accrued and unpaid Post-ARD Additional Interest);
and seventh, in the case of an REO Pooled Mortgage Loan that relates to an ARD
Mortgage Loan after its Anticipated Repayment Date, as a recovery of any accrued
and unpaid Post-ARD Additional Interest on such REO Pooled Mortgage Loan to but
not including the date of receipt by or on behalf of the Trust.
-93-
(c) Amounts collected on or with respect to the RREEF Textron Mortgage
Loan Pair or any related REO Property shall be applied in accordance with
Section 3 or Section 4, as applicable, of the RREEF Textron Co-Lender Agreement.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on
an ARD Mortgage Loan or a successor REO Mortgage Loan shall be deemed not to
constitute principal or any portion thereof and shall not be added to the unpaid
principal balance or Stated Principal Balance of such ARD Mortgage Loan or
successor REO Mortgage Loan, notwithstanding that the terms of the related loan
documents so permit. To the extent any Post-ARD Additional Interest is not paid
on a current basis, it shall be deemed to be deferred interest.
(e) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the applicable Master
Servicer and reflected in the appropriate monthly report from such Master
Servicer and in the appropriate monthly Certificate Administrator Report as
provided in Section 4.02.
SECTION 1.04. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that the groups of Mortgage Loans identified on the Pooled Mortgage
Loan Schedule as being cross-collateralized with each other are, in the case of
each such particular group of Mortgage Loans, by their terms, cross-defaulted
and cross-collateralized with each other. For purposes of reference only in this
Agreement, and without in any way limiting the servicing rights and powers of
the applicable Master Servicer and/or the applicable Special Servicer, with
respect to any Cross-Collateralized Mortgage Loan (or successor REO Mortgage
Loan), the Mortgaged Property (or REO Property) that relates or corresponds
thereto shall be the property identified in the Pooled Mortgage Loan Schedule as
corresponding thereto. The provisions of this Agreement, including each of the
defined terms set forth in Section 1.01, shall be interpreted in a manner
consistent with this Section 1.04; provided that, if there exists with respect
to any Cross-Collateralized Group only one original of any document referred to
in the definition of "Mortgage File" covering all the Mortgage Loans in such
Cross-Collateralized Group, then the inclusion of the original of such document
in the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
-94-
SECTION 1.05. Incorporation of Preliminary Statement.
The parties hereto acknowledge that the Preliminary Statement at the
beginning of this Agreement constitutes a part of this Agreement.
-95-
ARTICLE II
CONVEYANCE OF POOLED MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES; ORIGINAL ISSUANCE OF REMIC I REGULAR
INTERESTS, REMIC II REGULAR INTERESTS, REMIC III COMPONENTS,
REMIC I RESIDUAL INTEREST, REMIC II RESIDUAL INTEREST, REMIC
III RESIDUAL INTEREST AND CERTIFICATES
SECTION 2.01. Conveyance of Pooled Mortgage Loans.
(a) It is the intention of the parties hereto that a common law trust
be established under the laws of the State of New York pursuant to this
Agreement and, further, that such trust be designated as "Bear ▇▇▇▇▇▇▇
Commercial Mortgage Securities Trust 2002-PBW1". LaSalle is hereby appointed,
and does hereby agree to act, as Trustee hereunder and, in such capacity, to
hold the Trust Fund in trust for the exclusive use and benefit of all present
and future Certificateholders. It is not intended that this Agreement create a
partnership or a joint-stock association.
(b) The Depositor, concurrently with the execution and delivery hereof,
does hereby transfer, assign, set over and otherwise convey to the Trustee, in
trust, without recourse, for the benefit of the Certificateholders (and for the
benefit of the other parties to this Agreement as their respective interests may
appear) all the right, title and interest of the Depositor, in, to and under (i)
the Original Pooled Mortgage Loans and all documents included in the related
Mortgage Files and Servicing Files, (ii) the rights of the Depositor under
Sections 2, 3, 4 (other than Section 4(c)) and 5 (and, to the extent related to
the foregoing, Sections 9, 10, 11, 12, 13, 14, 15, 17 and 18) of each Pooled
Mortgage Loan Purchase Agreement (or, in the case of the PMCF Mortgage Loans,
the rights of the Depositor (as assigned under the ▇▇▇▇▇▇▇ Bank Mortgage Loan
Purchase Agreement) under the PMCF Pooled Mortgage Loan Purchase Agreement) and
the rights of the Depositor under Sections 2, 3, 4 and 5 (and, to the extent
related to the foregoing, Sections 9, 10, 11, 12, 13, 14, 15, 17 and 19) of the
▇▇▇▇▇▇▇ Bank Mortgage Loan Purchase Agreement, (iii) all other assets included
or to be included in the Trust Fund. Such assignment includes (i) the Mortgage
Loans as from time to time are subject to this Agreement and all scheduled
payments of principal and interest under and proceeds of such Original Pooled
Mortgage Loans received after the Cut-off Date (other than scheduled payments of
interest and principal due on or before the respective Due Dates for the
Original Pooled Mortgage Loans in October 2002, which shall belong and be
promptly remitted to the related Pooled Mortgage Loan Seller) together with all
documents delivered
-96-
or caused to be delivered hereunder with respect to such Original Pooled
Mortgage Loans by the Pooled Mortgage Loan Sellers (including all documents
included in the related Mortgage Files and Servicing Files and any related
Additional Collateral); (ii) any REO Property acquired in respect of an Original
Pooled Mortgage Loan, and (iii) such funds or assets as from time to time are
deposited in each Collection Account, the Distribution Account, the Interest
Reserve Account, the Excess Liquidation Proceeds Account and, if established,
the REO Account. This conveyance is subject to the right of the Designated
Sub-Servicers pursuant to the Designated Sub-Servicer Agreements.
After the Depositor's transfer of the Original Pooled Mortgage Loans to
the Trustee pursuant to this Section 2.01(b), the Depositor shall not take any
action inconsistent with the Trust's ownership of the Pooled Mortgage Loans.
(c) The conveyance of the Original Pooled Mortgage Loans and the
related rights and property accomplished hereby is absolute and is intended by
the parties hereto to constitute an absolute transfer of the Original Pooled
Mortgage Loans and such other related rights and property by the Depositor to
the Trustee for the benefit of the Certificateholders. Furthermore, it is not
intended that such conveyance be a pledge of security for a loan. If such
conveyance is determined to be a pledge of security for a loan, however, the
Depositor and the Trustee intend that the rights and obligations of the parties
to such loan shall be established pursuant to the terms of this Agreement. The
Depositor and the Trustee also intend and agree that, in such event, (i) this
Agreement shall constitute a security agreement under applicable law, (ii) the
Depositor shall be deemed to have granted to the Trustee (in such capacity) a
first priority security interest in all of the Depositor's right, title and
interest in and to the assets constituting the Trust Fund, including the Pooled
Mortgage Loans subject hereto from time to time, all principal and interest
received on or with respect to such Mortgage Loans after the Closing Date (other
than scheduled payments of interest and principal due and payable on such
Mortgage Loans on or prior to the related Due Date in October 2002 or, in the
case of a Replacement Pooled Mortgage Loan, on or prior to the related date of
substitution), all amounts held from time to time in each Collection Account,
the Distribution Account, the Interest Reserve Account, the Excess Liquidation
Proceeds Account and, if established, the REO Account, and all investment
earnings on such amounts, and all of the Depositor's right, title and interest
under the Pooled Mortgage Loan Purchase Agreements that are described under
clause (ii) of Section 2.01(b), (iii) the possession by the Trustee or its agent
of the Mortgage Notes with respect to the Pooled Mortgage Loans subject hereto
from time to time and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" or possession by a
-97-
purchaser or person designated by such secured party for the purpose of
perfecting such security interest under applicable law, and (iv) notifications
to, and acknowledgments, receipts or confirmations from, Persons holding such
property, shall be deemed to be notifications to, or acknowledgments, receipts
or confirmations from, securities intermediaries, bailees or agents (as
applicable) of the Trustee for the purpose of perfecting such security interest
under applicable law. The Depositor shall file or cause to be filed, as a
precautionary filing, a Form UCC-1 financing statement substantially in the form
attached as Exhibit I hereto in all appropriate locations in the State of
Delaware promptly following the initial issuance of the Certificates, and the
Trustee shall, at the expense of the Depositor (to the extent reasonable),
prepare and file continuation statements with respect thereto, in each case
within six months prior to the fifth anniversary of the immediately preceding
filing. The Depositor shall cooperate in a reasonable manner with the Trustee in
the preparation and filing such continuation statements. This Section 2.01(c)
shall constitute notice to the Trustee pursuant to any requirements of the UCC
in effect in each applicable jurisdiction.
(d) In connection with the Depositor's assignment pursuant to Section
2.01(b) above, the Depositor hereby represents and warrants that each Pooled
Mortgage Loan Seller is obligated, at such Pooled Mortgage Loan Seller's
expense, pursuant to the related Pooled Mortgage Loan Purchase Agreement, to
deliver to and deposit with, or cause to be delivered to and deposited with, the
Trustee or a Custodian appointed thereby, on or before the Closing Date, the
Mortgage Note for each Pooled Mortgage Loan so assigned, endorsed to the Trustee
as specified in clause (i) of the definition of "Mortgage File" and, on or
before the respective dates therefor set forth in the related Pooled Mortgage
Loan Purchase Agreement, the remainder of the Mortgage File and any Additional
Collateral (other than Reserve Funds, which are to be transferred to the
applicable Master Servicer) for each Original Pooled Mortgage Loan acquired by
the Depositor from such Pooled Mortgage Loan Seller. Notwithstanding the
preceding sentence, if the applicable Pooled Mortgage Loan Seller cannot so
deliver, or cause to be delivered, as to any Mortgage Loan, the original or a
copy of any of the documents and/or instruments referred to in clauses (ii),
(iii), (vii) and (ix)(A) of the definition of "Mortgage File", with evidence of
recording or filing (if applicable, and as the case may be) thereon, solely
because of a delay caused by the public recording or filing office where such
document or instrument has been delivered for recordation or filing, as the case
may be, then (subject to the obligation of such Pooled Mortgage Loan Seller to
nonetheless deliver such document or instrument to the Trustee or a Custodian
appointed thereby promptly upon such Pooled Mortgage Loan Seller's receipt
thereof), so long as a copy of such document or instrument, certified by the
related Pooled Mortgage Loan
-98-
Seller as being a copy of the document deposited for recording or filing, has
been delivered to the Trustee on or before the Closing Date or such respective
dates (as the case may be), the delivery requirements of the related Pooled
Mortgage Loan Purchase Agreement shall be deemed to have been satisfied as to
such missing item, and such missing item shall be deemed to have been included
in the related Mortgage File; and if the applicable Pooled Mortgage Loan Seller
cannot or does not so deliver, or cause to be delivered, as to any Mortgage
Loan, the original of any of the documents and/or instruments referred to in
clauses (iv) and (ix)(B) of the definition of "Mortgage File", because such
document or instrument has been delivered for recording or filing, as the case
may be, then (subject to the obligation of such Pooled Mortgage Loan Seller to
nonetheless deliver such document or instrument to the Trustee or a Custodian
appointed thereby promptly upon such Pooled Mortgage Loan Seller's receipt
thereof) the delivery requirements of the related Pooled Mortgage Loan Purchase
Agreement shall be deemed to have been satisfied as to such missing item, and
such missing item shall be deemed to have been included in the related Mortgage
File. In addition, with respect to each Pooled Mortgage Loan under which any
Additional Collateral is in the form of a Letter of Credit as of the Closing
Date, the Depositor hereby represents and warrants that the related Pooled
Mortgage Loan Seller is contractually obligated to cause to be prepared,
executed and delivered to the issuer of each such Letter of Credit such notices,
assignments and acknowledgments as are required under such Letter of Credit to
assign, without recourse, to the Trustee the related Pooled Mortgage Loan
Seller's rights as the beneficiary thereof and drawing party thereunder. The
Depositor shall deliver to the Trustee on or before the Closing Date a fully
executed counterpart of each Pooled Mortgage Loan Purchase Agreement and the
▇▇▇▇▇▇▇ Bank Mortgage Loan Purchase Agreement. None of the Depositor, the
Trustee, the Fiscal Agent, any Custodian, either Master Servicer or either
Special Servicer shall be liable for any failure by any Pooled Mortgage Loan
Seller to comply with the document delivery requirements of the related Pooled
Mortgage Loan Purchase Agreement.
(e) As soon as reasonably possible, and in any event within 45 days
after the later of (i) the Closing Date (or, in the case of a Replacement Pooled
Mortgage Loan substituted as contemplated by Section 2.03, after the related
date of substitution) and (ii) the date on which all recording information
necessary to complete the subject document is received by the Trustee, the
Trustee shall complete (to the extent necessary), and shall submit for recording
or filing, as the case may be, including via electronic means, if appropriate,
in or with the appropriate office for real property records or UCC Financing
Statements, as applicable, each assignment of Mortgage and assignment of
Assignment of Leases in favor of the Trustee referred to in clause (iv) of the
-99-
definition of "Mortgage File" that has been received by the Trustee or a
Custodian on its behalf and each assignment of UCC Financing Statement on form
UCC-2 or UCC-3 in favor of the Trustee referred to in clause (ix)(B) of the
definition of "Mortgage File" that has been received by the Trustee or a
Custodian on its behalf. Each such assignment shall reflect that it should be
returned by the public recording office to the Trustee following recording, and
each such assignment of UCC Financing Statement on form UCC-2 or UCC-3 shall
reflect that the file copy thereof or an appropriate receipt therefor, as
applicable, should be returned to the Trustee following filing; provided that in
those instances where the public recording office retains the original
assignment of Mortgage or assignment of Assignment of Leases the Trustee shall
obtain therefrom a copy of the recorded original. At such time as such
assignments, assignments of UCC Financing Statements on form UCC-2 or UCC-3 or
verifications of electronic filing have been returned to the Trustee, the
Trustee shall forward a copy thereof to the applicable Master Servicer. If any
such document or instrument is lost or returned unrecorded or unfiled, as the
case may be, because of a defect therein, the Trustee shall direct the related
Pooled Mortgage Loan Seller to prepare or cause to be prepared promptly,
pursuant to the related Pooled Mortgage Loan Purchase Agreement, a substitute
therefor or cure such defect, as the case may be, and thereafter the Trustee
shall, upon receipt thereof, cause the same to be duly recorded or filed, as
appropriate. If any Pooled Mortgage Loan Seller has been so notified and has not
prepared a substitute document or cured such defect, as the case may be, within
60 days, the Trustee shall promptly notify the Master Servicers, the Special
Servicers, the Rating Agencies and the Controlling Class Representative. The
Depositor and the Trustee hereby acknowledge and agree that each Pooled Mortgage
Loan Seller shall be responsible for paying the reasonable fees and
out-of-pocket expenses of the Trustee in connection with the above-referenced
recording and filing of documents insofar as it relates to the Original Pooled
Mortgage Loans sold by such Pooled Mortgage Loan Seller under the related Pooled
Mortgage Loan Purchase Agreement, as and to the extent provided for in such
Pooled Mortgage Loan Purchase Agreement; provided that no Pooled Mortgage Loan
Seller shall actually record or file any such documents.
(f) In connection with the Depositor's assignment pursuant to Section
2.01(b) above, the Depositor hereby represents and warrants that each Pooled
Mortgage Loan Seller is contractually obligated, at such Pooled Mortgage Loan
Seller's expense, pursuant to the related Pooled Mortgage Loan Purchase
Agreement, to deliver to and deposit with, or cause to be delivered to and
deposited with, the applicable Master Servicer, on or before the date that is 45
days after the Closing Date, the following items (except to the extent that any
of the following items are to be retained by a primary servicer that will
continue to
-100-
act on behalf of the applicable Master Servicer as a Sub-Servicer): (i)
originals or copies of all financial statements, appraisals,
environmental/engineering reports, transaction screens, seismic assessment
reports, leases, rent rolls, Insurance Policies and certificates, major space
leases, legal opinions and tenant estoppels and any other relevant documents
relating to the origination and servicing of any Mortgage Loan that are
reasonably necessary for the ongoing administration and/or servicing of the
applicable Mortgage Loan in the possession or under the control of such Pooled
Mortgage Loan Seller that relate to the Original Pooled Mortgage Loans
transferred by it to the Depositor and, to the extent that any original
documents are not required to be a part of a Mortgage File for any such Original
Pooled Mortgage Loan, originals or copies of all documents, certificates and
opinions in the possession or under the control of such Pooled Mortgage Loan
Seller that were delivered by or on behalf of the related Borrowers in
connection with the origination of such Original Pooled Mortgage Loans (provided
that such Pooled Mortgage Loan Seller shall not be required to deliver any
attorney-client privileged communication, draft documents or any documents or
materials prepared by it or its Affiliates for internal uses, including without
limitation, credit committee briefs or memoranda and other internal approval
documents); and (ii) all unapplied Reserve Funds and Escrow Payments in the
possession or under the control of such Pooled Mortgage Loan Seller that relate
to the Original Pooled Mortgage Loans transferred by such Pooled Mortgage Loan
Seller to the Depositor. Each Master Servicer shall hold all such documents,
records and funds that it so receives on behalf of the Trustee in trust for the
benefit of the Certificateholders.
SECTION 2.02. Acceptance of Mortgage Assets by Trustee.
(a) Subject to the other provisions in this Section 2.02, the Trustee,
by its execution and delivery of this Agreement, hereby accepts receipt on
behalf of the Trust, directly or through a Custodian on its behalf, of (i) the
Original Pooled Mortgage Loans and all documents delivered to it that constitute
portions of the related Mortgage Files and (ii) all other assets delivered to it
and included in the Trust Fund, in good faith and without notice of any adverse
claim, and declares that it or a Custodian on its behalf holds and will hold
such documents and any other documents received by it that constitute portions
of the Mortgage Files, and that it holds and will hold the Original Pooled
Mortgage Loans and such other assets, together with any other Pooled Mortgage
Loans and assets subsequently delivered to it that are to be included in the
Trust Fund, in trust for the exclusive use and benefit of all present and future
Certificateholders. Each Master Servicer acknowledges receipt of all of the
original Letters of Credit, copies of which are part of the Mortgage File and
agrees to hold such Letters of Credit in trust for the benefit of the Trustee.
In connection with the foregoing, the
-101-
Trustee hereby certifies to each of the other parties hereto, each Pooled
Mortgage Loan Seller and each Underwriter that, as to each Loan, except as
specifically identified in the Schedule of Exceptions to Mortgage File Delivery
attached hereto as Schedule II, (i) all documents specified in clause (i) of the
definition of "Mortgage File" are in its possession or the possession of a
Custodian on its behalf, and (ii) the original Mortgage Note (or, if accompanied
by a lost note affidavit, the copy of such Mortgage Note) received by it or any
Custodian with respect to such Pooled Mortgage Loan has been reviewed by it or
by such Custodian on its behalf and (A) appears regular on its face (handwritten
additions, changes or corrections shall not constitute irregularities if
initialed by the Borrower), (B) appears to have been executed (where
appropriate) and (C) purports to relate to such Pooled Mortgage Loan.
(b) On or about the 45th day following the Closing Date (and, if any
exceptions are noted or if the recordation/filing contemplated by Section
2.01(e) has not been completed (based solely on receipt by the Trustee of the
particular documents showing evidence of the recordation/filing), every 90 days
thereafter until the earlier of (i) the date on which such exceptions are
eliminated and such recordation/filing has been completed, and (ii) the date on
which all the affected Pooled Mortgage Loans are removed from the Trust Fund),
the Trustee or a Custodian on its behalf shall review the documents delivered to
it or such Custodian with respect to each Original Pooled Mortgage Loan, and the
Trustee shall, subject to Sections 1.04, 2.02(c) and 2.02(d), certify in writing
to each of the other parties hereto (substantially in the form of Exhibit M),
the Pooled Mortgage Loan Sellers and the Controlling Class Representative that,
as to each Original Pooled Mortgage Loan then subject to this Agreement (except
as specifically identified in any exception report annexed to such
certification): (i) the original Mortgage Note specified in clause (i) of the
definition of "Mortgage File" and all allonges thereto, if any (or a copy of
such Mortgage Note, together with a lost note affidavit and indemnity certifying
that the original of such Mortgage Note has been lost), the original or copy of
documents specified in clauses (ii), (iii), (iv) and (viii) (without regard to
the verification of the effective date with respect to a title policy or the
date of funding with respect to a title commitment) and (x) (if the Pooled
Mortgage Loan Schedule specifies that a material portion of the interest of the
Borrower in the related Mortgaged Property consists of a leasehold interest) of
the definition of "Mortgage File" have been received by it or a Custodian on its
behalf; (ii) if such report is due more than 180 days after the Closing Date,
the recordation/filing contemplated by Section 2.01(e) has been completed (based
solely on receipt by the Trustee of the particular recorded/filed documents or
an appropriate receipt of recording/filing therefor); (iii) all documents
received by it or any Custodian with respect to such
-102-
Pooled Mortgage Loan have been reviewed by it or by such Custodian on its behalf
and (A) appear regular on their face (handwritten additions, changes or
corrections shall not constitute irregularities if initialed by the Borrower),
(B) appear to have been executed and (C) purport to relate to such Pooled
Mortgage Loan; and (iv) based on the examinations referred to in Section 2.02(a)
above and this Section 2.02(b) and only as to the foregoing documents, the
information set forth in the Pooled Mortgage Loan Schedule with respect to the
items specified in clause (iii)(A) and clause (vi) of the definition of "Pooled
Mortgage Loan Schedule" accurately reflects the information set forth in the
related Mortgage File.
If a Pooled Mortgage Loan Seller substitutes a Replacement Pooled
Mortgage Loan for any Defective Pooled Mortgage Loan as contemplated by Section
2.03, the Trustee or a Custodian on its behalf shall review the documents
delivered to it or such Custodian with respect to such Replacement Pooled
Mortgage Loan, and the Trustee shall deliver a certification comparable to that
described in the prior paragraph, in respect of such Replacement Pooled Mortgage
Loan, on or about the 30th day following the related date of substitution (and,
if any exceptions are noted, every 90 days thereafter until the earlier of (i)
the date on which such exceptions are eliminated and all related
recording/filing has been completed, and (ii) the date on which such Replacement
Pooled Mortgage Loan is removed from the Trust Fund).
With respect to the documents described in clause (iii) of the
definition of "Mortgage File", absent actual knowledge to the contrary, the
Trustee may assume, for purposes of the certification(s) delivered in this
Section 2.02(a) or to be delivered pursuant to Section 2.02(b), that the
Mortgage File for each Pooled Mortgage Loan includes a separate Assignment of
Leases.
With respect to the documents described in clause (ix) of the
definition of "Mortgage File", absent actual knowledge to the contrary or copies
of UCC Financing Statements delivered to the Trustee as part of the Mortgage
File indicating otherwise, the Trustee may assume, for purposes of the
certification(s) to be delivered pursuant to this Section 2.02(b), that the
Mortgage File for each Pooled Mortgage Loan should include one state-level UCC
Financing Statement filed in the state of incorporation or organization of the
related Borrower for each Mortgaged Property (or with respect to any Pooled
Mortgage Loan that has two or more Borrowers, for each related Borrower). To the
extent appropriate under applicable law, the UCC Financing Statements to be
assigned to the Trust will be delivered on the new national forms and in
recordable form and will be filed in the state of incorporation or organization
as so indicated on the documents provided.
-103-
(c) None of the Depositor, the Certificate Administrator, the Trustee,
the Master Servicers, the Special Servicers or any Custodian is under any duty
or obligation to (i) determine whether any of the documents specified in clauses
(iii), (iv)(B), (v), (vi), (vii), (ix) and (xi) through (xviii) of the
definition of "Mortgage File" exist or are required to be delivered by the
Pooled Mortgage Loan Sellers in respect of any Pooled Mortgage Loan unless such
item(s) are specified on the related Mortgage File Checklist, or (ii) inspect,
review or examine any of the documents, instruments, certificates or other
papers relating to the Pooled Mortgage Loans delivered to it to determine that
the same are valid, legal, effective, genuine, binding, enforceable, sufficient
or appropriate for the represented purpose or that they are other than what they
purport to be on their face. Furthermore, except as expressly provided in
Section 2.01(e), none of the Depositor, the Trustee, the Master Servicers, the
Special Servicers or any Custodian shall have any responsibility for determining
whether the text of any assignment or endorsement is in proper or recordable
form, whether the requisite recording of any document is in accordance with the
requirements of any applicable jurisdiction, or whether a blanket assignment is
permitted in any applicable jurisdiction.
(d) In performing the reviews contemplated by subsections (a) and (b)
above, the Trustee may conclusively rely on the related Pooled Mortgage Loan
Seller as to the purported genuineness of any such document and any signature
thereon. It is understood that the scope of the Trustee's review of the Mortgage
Files is limited solely to confirming that the documents specified in clauses
(i), (ii), (iii), (iv), (viii) (without regard to the verification of the
effective date with respect to a title policy or the date of funding with
respect to a title commitment) and (x) (if the Pooled Mortgage Loan Schedule
specifies that a material portion of the interest of the Borrower in the related
Mortgaged Property consists of a leasehold interest) of the definition of
"Mortgage File" have been received by it or a Custodian on its behalf and such
additional information as will be necessary for delivering the certifications
required by subsections (a) and (b) above.
SECTION 2.03. Certain Repurchases and Substitutions of Mortgage Loans
by the Pooled Mortgage Loan Sellers.
(a) If, in the process of reviewing the documents delivered or caused
to be delivered by the Pooled Mortgage Loan Sellers as contemplated by Section
2.01(d), the Trustee or any Custodian discovers that any document required to
have been delivered pursuant to Section 2.01(d) has not been so delivered, or
discovers that any of the documents that were delivered has not been
-104-
properly executed, contains information that does not conform in any material
respect with the corresponding information set forth in the Pooled Mortgage Loan
Schedule, or is defective on its face (each, including, without limitation, that
a document is missing, a "Document Defect"), or if, at any other time, the
Trustee or any other party hereto discovers a Document Defect in respect of any
Pooled Mortgage Loan, the party discovering such Document Defect shall promptly
so notify each of the other parties hereto. If any party hereto discovers or
receives notice of a breach of any representation or warranty relating to any
Pooled Mortgage Loan set forth in any Pooled Mortgage Loan Purchase Agreement (a
"Breach"), such party shall promptly so notify each of the other parties hereto.
Upon the Trustee's discovery or receipt of notice that a Document Defect or
Breach exists with respect to any Pooled Mortgage Loan, the Trustee shall notify
the Controlling Class Representative, the Depositor and the related Pooled
Mortgage Loan Seller.
(b) Promptly upon its becoming aware of any Material Document Defect or
Material Breach with respect to any Pooled Mortgage Loan or its receipt of
notice from the Trustee or any other party to this Agreement of a Material
Document Defect or Material Breach with respect to any Pooled Mortgage Loan, the
applicable Master Servicer shall (and the General Special Servicer may and, if
the Material Document Defect or Material Breach, as the case may be, related to
the RREEF Textron Pooled Mortgage Loan, the RREEF Textron Special Servicer also
may) notify the related Pooled Mortgage Loan Seller in writing of such Material
Document Defect or Material Breach, as the case may be, and direct such Pooled
Mortgage Loan Seller that it must, not later than 90 days from the receipt by
such Pooled Mortgage Loan Seller of such notice (or, if such Material Breach or
Material Document Defect, as the case may be, relates to whether such Pooled
Mortgage Loan is or, as of the Closing Date (or, in the case of a Replacement
Pooled Mortgage Loan, as of the related date of substitution), was a Qualified
Mortgage, and provided that such Pooled Mortgage Loan Seller received prompt
written notice thereof, within 90 days after any earlier discovery by any party
to this Agreement of such Material Breach or Material Document Defect, as the
case may be) (such 90-day period, in any case, the "Initial Resolution Period"),
correct or cure such Material Document Defect or Material Breach, as the case
may be, in all material respects, or repurchase the affected Pooled Mortgage
Loan (as, if and to the extent required by the related Pooled Mortgage Loan
Purchase Agreement), at the applicable Purchase Price; provided that if such
Pooled Mortgage Loan Seller certifies to the Trustee in writing (i) that such
Material Document Defect or Material Breach, as the case may be, does not relate
to whether the affected Pooled Mortgage Loan is or, as of the Closing Date (or,
in the case of a Replacement Pooled Mortgage Loan, as of
-105-
the related date of substitution), was a Qualified Mortgage, (ii) that such
Material Document Defect or Material Breach, as the case may be, is capable of
being cured but not within the applicable Initial Resolution Period, (iii) that
such Pooled Mortgage Loan Seller has commenced and is diligently proceeding with
the cure of such Material Document Defect or Material Breach, as the case may
be, during the applicable Initial Resolution Period, and (iv) that such Pooled
Mortgage Loan Seller anticipates that such Material Document Defect or Material
Breach, as the case may be, will be cured within an additional 90-day period
(such additional 90-day period, the "Resolution Extension Period") (a copy of
which certification shall be delivered by the Trustee to the applicable Master
Servicer, the General Special Servicer, the Controlling Class Representative
and, if the Material Document Defect or Material Breach, as the case may be,
relates to the RREEF Textron Pooled Mortgage Loan, the RREEF Textron Special
Servicer), then such Pooled Mortgage Loan Seller shall have an additional period
equal to any such applicable Resolution Extension Period to complete such
correction or cure (or, upon failure to complete such correction or cure, to
repurchase the affected Pooled Mortgage Loan); and provided, further, that, in
lieu of repurchasing the affected Pooled Mortgage Loan as contemplated above
(but, in any event, no later than such repurchase would have to have been
completed), such Pooled Mortgage Loan Seller shall be permitted, during the
three-month period following the Startup Day for the REMIC Pool that holds the
related Pooled Mortgage Loan (or during the two-year period following such
Startup Day if the affected Pooled Mortgage Loan is a "defective obligation"
within the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury
regulation section 1.860G-2(f)), to replace the affected Pooled Mortgage Loan
with one or more Qualifying Substitute Mortgage Loans and to pay a cash amount
equal to the applicable Substitution Shortfall Amount, subject to any other
applicable terms and conditions of the related Pooled Mortgage Loan Purchase
Agreement and this Agreement. The parties hereto agree that delivery by the
Trustee (or a Custodian on its behalf) of a certification or schedule of
exceptions to a Pooled Mortgage Loan Seller shall not in and of itself
constitute delivery of notice of any Material Document Defect or knowledge of
such Pooled Mortgage Loan Seller of any Material Document Defect therein. If any
Pooled Mortgage Loan is to be repurchased or replaced as contemplated by this
Section 2.03, the applicable Master Servicer shall designate its Collection
Account as the account to which funds in the amount of the applicable Purchase
Price or Substitution Shortfall Amount (as the case may be) are to be wired, and
the applicable Master Servicer shall promptly notify the Trustee and the
Certificate Administrator when such deposit is made. Any such repurchase or
replacement of a Pooled Mortgage Loan shall be on a whole loan, servicing
released basis. Notwithstanding this Section 2.03(b), the absence from the
Mortgage File; (i) on the Closing Date of the
-106-
Mortgage Note and (ii) by the first anniversary of the Closing Date of the
following documents (without the presence of any factor, such as a lost note
affidavit with an acceptable indemnity in the case of a missing Mortgage Note,
that reasonably mitigates such absence, non-conformity or irregularity) shall be
conclusively presumed to be a Material Document Defect and shall obligate the
party discovering such to give the Trustee prompt notice, whereupon the Trustee
shall notify the applicable Pooled Mortgage Loan Seller to cure such Material
Document Defect, or, failing that, repurchase the related Pooled Mortgage Loan
or REO Mortgage Loan, all in accordance with the procedures set forth herein:
(a) the Mortgage and any separate Assignment of Leases as described by clauses
(ii) and (iii) of the definition of "Mortgage File"; (b) the title insurance
policy as described in clause (viii) of the definition of "Mortgage File"; or
(c) the assignment of Mortgage (and any separate Assignment of Leases) as
described by clause (iv) of the definition of "Mortgage File".
The remedies provided for in this Section 2.03(b) with respect to any
Material Document Defect or Material Breach with respect to any Mortgage Loan
shall apply to the related REO Property.
If (x) a Defective Pooled Mortgage Loan is to be repurchased or
replaced as described above, (y) such Defective Pooled Mortgage Loan is part of
a Cross-Collateralized Group and (z) the applicable document defect or breach
does not constitute a Material Document Defect or Material Breach, as the case
may be, as to the other Mortgage Loan(s) that are a part of such
Crossed-Collateralized Group (the "Other Crossed Loans") (without regard to this
paragraph), then the applicable Document Defect or Breach (as the case may be)
shall be deemed to constitute a Material Document Defect or Material Breach (as
the case may be) as to each such Other Crossed Loan for purposes of the above
provisions, and the related Pooled Mortgage Loan Seller shall be obligated to
repurchase or replace each such Other Crossed Loan in accordance with the
provisions above unless, in the case of such Breach or Document Defect:
(A) the Pooled Mortgage Loan Seller (at its expense) delivers or
causes to be delivered to the Trustee a Nondisqualification Opinion with
respect to its repurchase of only those Pooled Mortgage Loans as to which a
Material Breach has occurred without regard to the provisions of this
paragraph (the "Affected Loan(s)"); and
(B) both of the following conditions would be satisfied if the
related Pooled Mortgage Loan Seller were to repurchase or replace only the
Affected Loans and not the Other Crossed Loans:
-107-
(i) the Debt Service Coverage Ratio for such Other Crossed
Loan (excluding the Affected Loan(s)) for the four calendar quarters
immediately preceding the repurchase or replacement is not less than
the lesser of (A) 0.10x below the debt service coverage ratio for the
Cross-Collateralized Group (including the Affected Loan(s)) set forth
in Appendix II to the Prospectus Supplement and (B) the debt service
coverage ratio for the Cross-Collateralized Group (including the
Affected Loan(s)) for the four preceding calendar quarters preceding
the repurchase or replacement and (C) 1.25x; and
(ii) the Loan-to-Value Ratio for the Other Crossed Loans is
not greater than the greater of (A) the loan-to-value ratio, expressed
as a whole number (taken to one decimal place), for the
Cross-Collateralized Group (including the Affected Loan(s)) set forth
in Appendix II to the Prospectus Supplement plus 10% and (B) the
loan-to-value ratio for the Cross-Collateralized Group (including the
Affected Loan(s)) at the time of repurchase or replacement and (C) 75%.
The determination of the applicable Master Servicer as to whether the conditions
set forth above have been satisfied shall be conclusive and binding in the
absence of manifest error. The applicable Master Servicer will be entitled to
cause to be delivered, or direct the related Pooled Mortgage Loan Seller to (in
which case the related Seller shall) cause to be delivered to the applicable
Master Servicer, an Appraisal of any or all of the related Mortgaged Properties
for purposes of determining whether the condition set forth in clause (ii) above
has been satisfied, in each case at the expense of the related Pooled Mortgage
Loan Seller if the scope and cost of the Appraisal is approved by the related
Pooled Mortgage Loan Seller and the Controlling Class Representative (such
approval not to be unreasonably withheld in each case).
With respect to any Defective Pooled Mortgage Loan that forms a part of
a Cross-Collateralized Group and as to which the conditions described in the
preceding paragraph are satisfied, such that the Trust Fund will continue to
hold the Other Crossed Loans, the related Pooled Mortgage Loan Seller and the
Depositor are bound by an agreement (set forth in the related Pooled Mortgage
Loan Purchase Agreement) to forbear from enforcing any remedies against the
other's Primary Collateral but each is permitted to exercise remedies against
the Primary Collateral securing its respective Pooled Mortgage Loans, including
with respect to the Trustee, the Primary Collateral securing the Affected
Loan(s) still held by the Trustee, so long as such exercise does not impair the
ability of the
-108-
other party to exercise its remedies against its Primary Collateral. If the
exercise of remedies by one party would impair the ability of the related Pooled
Mortgage Loan Seller to exercise its remedies with respect to the Primary
Collateral securing the Affected Loan or the Other Crossed Loans, as the case
may be, held by such party, then both parties have agreed to forbear from
exercising such remedies unless and until the loan documents evidencing and
securing the relevant Pooled Mortgage Loans can be modified in a manner that
complies with the applicable Pooled Mortgage Loan Purchase Agreement to remove
the threat of impairment as a result of the exercise of remedies. Any reserve or
other cash collateral or letters of credit securing any of the
Cross-Collateralized Loans shall be allocated between such Pooled Mortgage Loans
in accordance with the Mortgage Loan Documents, or otherwise on a pro rata basis
based upon their outstanding Stated Principal Balances. All other terms of the
Pooled Mortgage Loans shall remain in full force and effect, without any
modification thereof. The Borrowers set forth on Schedule V hereto are intended
third-party beneficiaries of the provisions set forth in this paragraph and the
preceding paragraph. The provisions of this paragraph and the preceding
paragraph may not be modified with respect to any Mortgage Loan without the
related Borrower's consent.
To the extent necessary and appropriate, the Trustee shall execute (or,
subject to Section 3.10, provide the applicable Master Servicer with a limited
power of attorney that enables the applicable Master Servicer to execute) the
modification of the loan documents that complies with the applicable Pooled
Mortgage Loan Purchase Agreement to remove the threat of impairment of the
ability of the Pooled Mortgage Loan Seller or the Trust Fund to exercise its
remedies with respect to the Primary Collateral securing the Pooled Mortgage
Loan(s) held by such party resulting from the exercise of remedies by the other
such party; provided that the Trustee shall not be liable for any misuse of any
such power of attorney by a Master Servicer. The applicable Master Servicer
shall advance all costs and expenses incurred by the Trustee and such Master
Servicer with respect to any Cross-Collateralized Group pursuant to this
paragraph, and such advances shall (i) constitute and be reimbursable as
Servicing Advances and (ii) be included in the calculation of Purchase Price for
the Pooled Mortgage Loan(s) to be repurchased or replaced. The applicable Master
Servicer shall not be liable to any Certificateholder or any other party hereto
if a modification of the loan documents described above cannot be effected for
any reason beyond the control of such Master Servicer.
The reasonable "out-of-pocket" costs and expenses incurred by the
applicable Master Servicer, the applicable Special Servicer and/or the Trustee
pursuant to this Section 2.03(b), including reasonable attorney fees and
expenses,
-109-
shall constitute Servicing Advances to the extent not collected from the related
Pooled Mortgage Loan Seller.
(c) Whenever one or more Replacement Pooled Mortgage Loans are
substituted for a Defective Pooled Mortgage Loan by a Pooled Mortgage Loan
Seller as contemplated by this Section 2.03, the applicable Master Servicer
shall direct the party effecting the substitution to deliver to the Trustee the
related Mortgage File and a certification to the effect that such Replacement
Pooled Mortgage Loan satisfies or such Replacement Pooled Mortgage Loans
satisfy, as the case may be, all of the requirements of the definition of
"Qualifying Substitute Mortgage Loan". No mortgage loan may be substituted for a
Defective Pooled Mortgage Loan as contemplated by this Section 2.03 if the
Pooled Mortgage Loan to be replaced was itself a Replacement Pooled Mortgage
Loan, in which case, absent a cure of the relevant Material Breach or Material
Document Defect, the affected Pooled Mortgage Loan will be required to be
repurchased as contemplated hereby. Monthly Payments due with respect to each
Replacement Pooled Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each corresponding
Deleted Pooled Mortgage Loan (if any) after the related Due Date in October 2002
and on or prior to the related date of substitution, shall be part of the Trust
Fund. Monthly Payments due with respect to each Replacement Pooled Mortgage Loan
(if any) on or prior to the related date of substitution, and Monthly Payments
due with respect to each corresponding Deleted Pooled Mortgage Loan (if any)
after the related date of substitution, shall not be part of the Trust Fund and
are to be remitted by the applicable Master Servicer to the party effecting the
related substitution promptly following receipt.
If any Pooled Mortgage Loan is to be repurchased or replaced by a
Pooled Mortgage Loan Seller as contemplated by this Section 2.03, the applicable
Master Servicer shall direct such party to amend the Pooled Mortgage Loan
Schedule to reflect the removal of any Deleted Pooled Mortgage Loan and, if
applicable, the substitution of the related Replacement Pooled Mortgage Loan(s);
and, upon its receipt of such amended Pooled Mortgage Loan Schedule, the
applicable Master Servicer shall deliver or cause the delivery of such amended
Pooled Mortgage Loan Schedule to the other parties hereto. Upon any substitution
of one or more Replacement Pooled Mortgage Loans for a Deleted Pooled Mortgage
Loan, such Replacement Pooled Mortgage Loan(s) shall become part of the Trust
Fund and be subject to the terms of this Agreement in all respects.
The reasonable "out-of-pocket" costs and expenses incurred by the
applicable Master Servicer, the applicable Special Servicer and/or the Trustee
-110-
pursuant to this Section 2.03(c), including reasonable attorney fees and
expenses, shall constitute Servicing Advances to the extent not collected from
the related Pooled Mortgage Loan Seller.
(d) Upon receipt of an Officer's Certificate from the applicable Master
Servicer to the effect that the full amount of the Purchase Price or
Substitution Shortfall Amount (as the case may be) for any Pooled Mortgage Loan
repurchased or replaced by the related Pooled Mortgage Loan Seller as
contemplated by this Section 2.03 has been deposited in such Master Servicer's
Collection Account, and further, if applicable, upon receipt of the Mortgage
File for each Replacement Pooled Mortgage Loan (if any) to be substituted for a
Deleted Pooled Mortgage Loan, together with any certifications and/or opinions
required pursuant to Section 2.03(b) to be delivered by the party effecting the
repurchase/substitution, the Trustee shall (i) release or cause the release of
the Mortgage File and any Additional Collateral held by or on behalf of the
Trustee for the Deleted Pooled Mortgage Loan to the related Pooled Mortgage Loan
Seller or its designee and (ii) execute and deliver such instruments of release,
transfer and/or assignment, in each case without recourse, as shall be provided
to it and are reasonably necessary to vest in the party effecting the
repurchase/substitution or its designee the ownership of the Deleted Pooled
Mortgage Loan, and the applicable Master Servicer shall notify the affected
Borrowers of the transfers of the Deleted Pooled Mortgage Loan(s) and any
Replacement Pooled Mortgage Loan(s). In connection with any such repurchase or
substitution by the related Pooled Mortgage Loan Seller, each of the Master
Servicers and the Special Servicers shall deliver to the party effecting the
repurchase/substitution or its designee any portion of the related Servicing
File, together with any Escrow Payments, Reserve Funds and Additional
Collateral, held by or on behalf of such Master Servicer or such Special
Servicer, as the case may be, with respect to the Deleted Pooled Mortgage Loan,
in each case at the expense of the party effecting the repurchase/substitution.
The reasonable "out-of-pocket" costs and expenses, including reasonable
attorneys' fees and expenses, incurred by a Master Servicer, a Special Servicer
and/or the Trustee pursuant to this Section 2.03(d), to the extent not collected
from the related Pooled Mortgage Loan Seller, shall be reimbursable to each of
them as Servicing Advances in respect of the affected Pooled Mortgage Loan.
(e) The related Pooled Mortgage Loan Purchase Agreement provides the
sole remedies available to the Certificateholders, or the Trustee on their
behalf, respecting any Document Defect or Breach. If, in connection with any
Material Document Defect or Material Breach, the related Pooled Mortgage Loan
Seller defaults on its obligations to cure such Material Document Defect or
Material Breach, as the case may be, in all material respects or to repurchase
or
-111-
replace the affected Pooled Mortgage Loan as contemplated by this Section 2.03,
then the applicable Master Servicer shall (and the General Special Servicer may
and, if the Material Document Defect or Material Breach, as the case may be,
related to the RREEF Textron Pooled Mortgage Loan, the RREEF Textron Special
Servicer also may) promptly notify the Trustee and the Controlling Class
Representative, and the Trustee shall notify the Certificateholders. Thereafter,
the Trustee shall (and the General Special Servicer may and, if the Material
Document Defect or Material Breach, as the case may be, related to the RREEF
Textron Pooled Mortgage Loan, the RREEF Textron Special Servicer also may) take
such actions on behalf of the Trust with respect to the enforcement of such
repurchase/substitution obligations, including the institution and prosecution
of appropriate legal proceedings, as the Trustee (or, if applicable, the General
Special Servicer or, if applicable, the RREEF Textron Special Servicer) shall
determine are in the best interests of the Certificateholders (taken as a
collective whole). Any and all reasonable "out-of-pocket" costs and expenses
incurred by the applicable Master Servicer, the Trustee and/or the Special
Servicer pursuant to this Section 2.03(e), including, reasonable attorney's fees
and expenses, to the extent not collected from the related Pooled Mortgage Loan
Seller, shall constitute Servicing Advances in respect of the affected Pooled
Mortgage Loan.
SECTION 2.04. Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of the other
parties hereto and for the benefit of the Certificateholders, as of the Closing
Date, that:
(i) The Depositor is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(ii) The Depositor's execution and delivery of, performance under, and
compliance with this Agreement, will not violate the Depositor's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material
instrument to which it is a party or by which it is bound, which default or
breach, in the good faith and reasonable judgment of the Depositor, is
likely to affect materially and adversely the ability of the Depositor to
perform its obligations under this Agreement.
(iii) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
-112-
and binding obligation of the Depositor, enforceable against the Depositor
in accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law.
(iv) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that, if determined adversely
to the Depositor, would prohibit the Depositor from entering into this
Agreement or that, in the Depositor's good faith and reasonable judgment,
is likely to materially and adversely affect the ability of the Depositor
to perform its obligations under this Agreement.
(v) Immediately prior to the transfer of the Original Pooled Mortgage
Loans to the Trustee for the benefit of the Certificateholders pursuant to
this Agreement, the Depositor had such right, title and interest in and to
each Original Pooled Mortgage Loan (other than each Original PMCF Pooled
Mortgage Loan) as was transferred to it by the related Pooled Mortgage Loan
Seller pursuant to the related Pooled Mortgage Loan Purchase Agreement and
in and to each Original PMCF Pooled Mortgage Loan) as was transferred to it
by ▇▇▇▇▇▇▇ Bank pursuant to the ▇▇▇▇▇▇▇ Bank Mortgage Loan Purchase
Agreement. The Depositor has not transferred any of its right, title and
interest in and to the Original Pooled Mortgage Loans to any Person other
than the Trustee.
(vi) The Depositor is transferring all of its right, title and interest
in and to the Original Pooled Mortgage Loans to the Trustee for the benefit
of the Certificateholders free and clear of any and all liens, pledges,
charges, security interests and other encumbrances created by or through
the Depositor.
(vii) Except for any actions that are the express responsibility of
another party hereunder or under any Pooled Mortgage Loan Purchase
Agreement, and further except for actions that the Depositor is expressly
permitted to complete subsequent to the Closing Date, the Depositor has
taken all actions required under applicable law to effectuate the transfer
of all of its right, title and interest in and to the Original Pooled
Mortgage Loans by the Depositor to the Trustee.
(b) The representations and warranties of the Depositor set forth in
Section 2.04(a) shall survive the execution and delivery of this Agreement
-113-
and shall inure to the benefit of the Persons for whose benefit they were made
for so long as the Trust remains in existence. Upon discovery by any party
hereto of any breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
SECTION 2.05. Representations and Warranties of PAR as a Master
Servicer.
(a) PAR as a Master Servicer hereby represents and warrants to each of
the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) Such Master Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
such Master Servicer is in compliance with the laws of each State in which
any related Mortgaged Property is located to the extent necessary to ensure
the enforceability of each Mortgage Loan for which it is the Master
Servicer hereunder and to perform its obligations under this Agreement.
(ii) Such Master Servicer's execution and delivery of, performance
under and compliance with this Agreement, will not violate such Master
Servicer's organizational documents or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other material
instrument to which it is a party or by which it is bound, which default or
breach, in the good faith and reasonable judgment of such Master Servicer,
is likely to affect materially and adversely the ability of such Master
Servicer to perform its obligations under this Agreement.
(iii) Such Master Servicer has the full power and authority to enter
into and consummate all transactions involving such Master Servicer
contemplated by this Agreement, has duly authorized the execution, delivery
and performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery
by each of the other parties hereto, constitutes a valid, legal and binding
obligation of such Master Servicer, enforceable against such Master
Servicer in accordance with the terms hereof, subject to
-114-
(A) applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) Such Master Servicer is not in violation of, and its execution and
delivery of, performance under and compliance with this Agreement will not
constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in such Master
Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely the ability of such Master Servicer to perform its
obligations under this Agreement.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by such Master Servicer of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders that
previously have been obtained or where the lack of such consent, approval,
authorization or order would not have a material adverse effect on the
ability of such Master Servicer to perform its obligations under this
Agreement.
(vii) No litigation is pending or, to the best of such Master
Servicer's knowledge, threatened against such Master Servicer that, if
determined adversely to such Master Servicer, would prohibit such Master
Servicer from entering into this Agreement or that, in such Master
Servicer's good faith and reasonable judgment, is likely to materially and
adversely affect the ability of such Master Servicer to perform its
obligations under this Agreement.
(viii) Such Master Servicer has errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(d).
(b) The representations and warranties of PAR as a Master Servicer set
forth in Section 2.05(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
-115-
(c) Any successor to PAR as a Master Servicer shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.05(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.05(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.06. Representations and Warranties of WFB as a Master
Servicer.
(a) WFB as a Master Servicer hereby represents and warrants to each of
the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) Such Master Servicer is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States, and such Master Servicer is in compliance with the laws of
each State in which any related Mortgaged Property is located to the extent
necessary to ensure the enforceability of each Mortgage Loan for which it
is the Master Servicer hereunder and to perform its obligations under this
Agreement.
(ii) Such Master Servicer's execution and delivery of, performance
under and compliance with this Agreement, will not violate such Master
Servicer's organizational documents or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other material
instrument to which it is a party or by which it is bound, which default or
breach, in the good faith and reasonable judgment of such Master Servicer,
is likely to affect materially and adversely the ability of such Master
Servicer to perform its obligations under this Agreement.
(iii) Such Master Servicer has the full power and authority to enter
into and consummate all transactions involving such Master Servicer
contemplated by this Agreement, has duly authorized the execution, delivery
and performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery
by each of the other parties hereto, constitutes a valid, legal and binding
obligation of such Master Servicer, enforceable against such Master
Servicer in accordance with the terms hereof, subject to
-116-
(A) applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) Such Master Servicer is not in violation of, and its execution and
delivery of, performance under and compliance with this Agreement will not
constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in such Master
Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely the ability of such Master Servicer to perform its
obligations under this Agreement.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by such Master Servicer of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders that
previously have been obtained or where the lack of such consent, approval,
authorization or order would not have a material adverse effect on the
ability of such Master Servicer to perform its obligations under this
Agreement.
(vii) No litigation is pending or, to the best of such Master
Servicer's knowledge, threatened against such Master Servicer that, if
determined adversely to such Master Servicer, would prohibit such Master
Servicer from entering into this Agreement or that, in such Master
Servicer's good faith and reasonable judgment, is likely to materially and
adversely affect the ability of such Master Servicer to perform its
obligations under this Agreement.
(viii) Such Master Servicer has errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(d).
(b) The representations and warranties of WFB as a Master Servicer set
forth in Section 2.06(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
-117-
(c) Any successor to WFB as a Master Servicer shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.06(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.06(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.07. Representations and Warranties of the General Special
Servicer.
(a) The General Special Servicer hereby represents and warrants to each
of the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The General Special Servicer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and the General Special Servicer is in compliance with the laws
of each State in which any related Mortgaged Property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan and to
perform its obligations under this Agreement.
(ii) The General Special Servicer's execution and delivery of,
performance under and compliance with this Agreement will not violate the
General Special Servicer's organizational documents or constitute a default
(or an event which, with notice or lapse of time, or both, would constitute
a default) under, or result in the breach of, any material agreement or
other material instrument to which it is a party or by which it is bound,
which default, in the good faith and reasonable judgment of the General
Special Servicer, is likely to affect materially and adversely the ability
of the General Special Servicer to perform its obligations under this
Agreement.
(iii) The General Special Servicer has the full power and authority to
enter into and consummate all transactions involving the General Special
Servicer contemplated by this Agreement, has duly authorized the execution,
delivery and performance of this Agreement, and has duly executed and
delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery
by each of the other parties hereto, constitutes a valid, legal and binding
obligation of the General Special Servicer, enforceable against the General
Special Servicer in accordance with the terms hereof,
-118-
subject to (A) applicable bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(v) The General Special Servicer is not in violation of, and its
execution and delivery of, performance under and compliance with the terms
of this Agreement will not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in the General Special Servicer's good faith and reasonable
judgment, is likely to affect materially and adversely the ability of the
General Special Servicer to perform its obligations under this Agreement.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the General Special Servicer of the transactions
contemplated herein, except for those consents, approvals, authorizations
or orders that previously have been obtained or where the lack of such
consent, approval, authorization or order would not have a material adverse
effect on the ability of the General Special Servicer to perform its
obligations under this Agreement.
(vii) No litigation is pending or, to the best of the General Special
Servicer's knowledge, threatened against the General Special Servicer that,
if determined adversely to the General Special Servicer, would prohibit the
General Special Servicer from entering into this Agreement or that, in the
General Special Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect the ability of the General Special Servicer
to perform its obligations under this Agreement.
(viii) The General Special Servicer has errors and omissions insurance
in the amounts and with the coverage required by Section 3.07(d).
(b) The representations and warranties of the General Special Servicer
set forth in Section 2.07(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties that
-119-
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Any successor General Special Servicer shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.07(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.07(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.08. Representations and Warranties of the RREEF Textron
Special Servicer.
(a) The RREEF Textron Special Servicer hereby represents and warrants
to each of the other parties hereto and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The RREEF Textron Special Servicer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and the RREEF Textron Special Servicer is in compliance with the
laws of each State in which any related Mortgaged Property is located to
the extent necessary to ensure the enforceability of the RREEF Textron Loan
Pair and to perform its obligations under this Agreement.
(ii) The RREEF Textron Special Servicer's execution and delivery of,
performance under and compliance with this Agreement will not violate the
RREEF Textron Special Servicer's organizational documents or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other material instrument to which it is a party or by which
it is bound, which default, in the good faith and reasonable judgment of
the RREEF Textron Special Servicer, is likely to affect materially and
adversely the ability of the RREEF Textron Special Servicer to perform its
obligations under this Agreement.
(iii) The RREEF Textron Special Servicer has the full power and
authority to enter into and consummate all transactions involving the RREEF
Textron Special Servicer contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
-120-
(iv) This Agreement, assuming due authorization, execution and delivery
by each of the other parties hereto, constitutes a valid, legal and binding
obligation of the RREEF Textron Special Servicer, enforceable against the
RREEF Textron Special Servicer in accordance with the terms hereof, subject
to (A) applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The RREEF Textron Special Servicer is not in violation of, and its
execution and delivery of, performance under and compliance with the terms
of this Agreement will not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in the RREEF Textron Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely the
ability of the RREEF Textron Special Servicer to perform its obligations
under this Agreement.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the RREEF Textron Special Servicer of the transactions
contemplated herein, except for those consents, approvals, authorizations
or orders that previously have been obtained or where the lack of such
consent, approval, authorization or order would not have a material adverse
effect on the ability of the RREEF Textron Special Servicer to perform its
obligations under this Agreement.
(vii) No litigation is pending or, to the best of the RREEF Textron
Special Servicer's knowledge, threatened against the RREEF Textron Special
Servicer that, if determined adversely to the RREEF Textron Special
Servicer, would prohibit the RREEF Textron Special Servicer from entering
into this Agreement or that, in the RREEF Textron Special Servicer's good
faith and reasonable judgment, is likely to materially and adversely affect
the ability of the RREEF Textron Special Servicer to perform its
obligations under this Agreement.
(viii) The RREEF Textron Special Servicer has errors and omissions
insurance in the amounts and with the coverage required by Section 3.07(d).
-121-
(b) The representations and warranties of the RREEF Textron Special
Servicer set forth in Section 2.08(a) shall survive the execution and delivery
of this Agreement and shall inure to the benefit of the Persons for whose
benefit they were made for so long as the Trust remains in existence. Upon
discovery by any party hereto of a breach of any of such representations and
warranties that materially and adversely affects the interests of the
Certificateholders or any party hereto, the party discovering such breach shall
give prompt written notice to each of the other parties hereto.
(c) Any successor RREEF Textron Special Servicer shall be deemed to
have made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.08(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.08(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.09. Representations and Warranties of the Certificate
Administrator and Tax Administrator.
(a) The Certificate Administrator and the Tax Administrator each hereby
represents and warrants to, and covenants with, each of the other parties hereto
and for the benefit of the Certificateholders, as of the Closing Date, that:
(i) It is duly organized and validly existing as a national banking
association under the laws of the United States.
(ii) Its execution and delivery of, performance under and compliance
with this Agreement will not violate its organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in a material breach of,
any material agreement or other material instrument to which it is a party
or by which it is bound, which default or breach, in its reasonable
judgment, is likely to affect materially and adversely its ability to
perform its obligations under this Agreement.
(iii) It has the requisite power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
-122-
(iv) This Agreement, assuming due authorization, execution and delivery
by each of the other parties hereto, constitutes its valid, legal and
binding obligation, enforceable against it in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally and the rights of creditors of banks, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) It is not in violation of, and its execution and delivery of,
performance under and compliance with this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or any
order, regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in its reasonable judgment, is
likely to affect materially and adversely its ability to perform its
obligations under this Agreement.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by it of the transactions contemplated herein, except for
those consents, approvals, authorizations or orders that previously have
been obtained.
(vii) No litigation is pending or, to the best of its knowledge,
threatened against it that, if determined adversely to it, would prohibit
it from entering into this Agreement or that, in its reasonable judgment,
is likely to materially and adversely affect its ability to perform its
obligations under this Agreement.
(viii) It is eligible to act as certificate administrator and tax
administrator hereunder in accordance with Section 8.06.
(b) The representations and warranties of the Certificate Administrator
and the Tax Administrator set forth in Section 2.09(a) shall survive the
execution and delivery of this Agreement and shall inure to the benefit of the
Persons for whose benefit they were made for so long as the Trust remains in
existence. Upon discovery by any party hereto of a breach of any such
representations and warranties that materially and adversely affects the
interests of the Certificateholders or any party hereto, the party discovering
such breach shall give prompt written notice thereof to the other parties hereto
and the Controlling Class Representative.
-123-
(c) Any successor to the Certificate Administrator and/or Tax
Administrator shall be deemed to have made, as of the date of its succession,
each of the representations and warranties set forth in Section 2.09(a), subject
to such appropriate modifications to the representation and warranty set forth
in Section 2.09(a)(i) to accurately reflect such successor's jurisdiction of
organization and whether it is a corporation, partnership, bank, association or
other type of organization.
SECTION 2.10. Representations, Warranties and Covenants of the Trustee.
(a) The Trustee hereby represents and warrants to, and covenants with,
each of the other parties hereto and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) The Trustee is duly organized and validly existing as a national
banking association under the laws of the United States and is, shall be
or, if necessary, shall appoint a co-trustee that is, in compliance with
the laws of each State in which any Mortgaged Property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan
(insofar as such enforceability is dependent upon compliance by the Trustee
with such laws) and to perform its obligations under this Agreement.
(ii) The Trustee's execution and delivery of, performance under and
compliance with this Agreement, will not violate the Trustee's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in a material breach of, any material agreement or other material
instrument to which it is a party or by which it is bound, which breach or
default, in the good faith and reasonable judgment of the Trustee is likely
to affect materially and adversely the ability of the Trustee to perform
its obligations under this Agreement.
(iii) The Trustee has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery
by each of the other parties hereto, constitutes a valid, legal and binding
obligation of the Trustee, enforceable against the Trustee in
-124-
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the enforcement of creditors' rights generally and, in
particular, the rights of creditors of national banking associations, and
(B) general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Trustee is not in violation of, and its execution and delivery
of, performance under and compliance with this Agreement will not
constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Trustee's
good faith and reasonable judgment, is likely to affect materially and
adversely the ability of the Trustee to perform its obligations under this
Agreement.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Trustee of the transactions contemplated herein, except
for those consents, approvals, authorizations or orders that previously
have been obtained.
(vii) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee that, if determined adversely to
the Trustee, would prohibit the Trustee from entering into this Agreement
or that, in the Trustee's good faith and reasonable judgment, is likely to
materially and adversely affect the ability of the Trustee to perform its
obligations under this Agreement.
(viii) The Trustee is eligible to act as trustee hereunder in
accordance with Section 8.06.
(b) The representations, warranties and covenants of the Trustee set
forth in Section 2.10(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of a breach of any such representations, warranties and covenants
that materially and adversely affects the interests of the Certificateholders or
any party hereto, the party discovering such breach shall give prompt written
notice thereof to the other parties hereto.
-125-
(c) Any successor Trustee shall be deemed to have made, as of the date
of its succession, each of the representations and warranties set forth in
Section 2.10(a), subject to such appropriate modifications to the
representation, warranty and covenant set forth in Section 2.10(a)(i) to
accurately reflect such successor's jurisdiction of organization and whether it
is a corporation, partnership, bank, association or other type of organization.
SECTION 2.11. Representations and Warranties of the Fiscal Agent.
(a) The Fiscal Agent hereby represents and warrants to each of the
other parties hereto and for the benefit of the Certificateholders, as of the
Closing Date, that:
(i) The Fiscal Agent is a foreign banking corporation duly organized,
validly existing and in good standing under the laws governing its
creation.
(ii) The execution and delivery of this Agreement by the Fiscal Agent,
and the performance and compliance with the terms of this Agreement by the
Fiscal Agent, will not violate the Fiscal Agent's organizational documents
or constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in a material breach
of, any material agreement or other material instrument to which it is a
party or by which it is bound, which default, in the Fiscal Agent's good
faith and reasonable judgment, is likely to materially and adversely affect
the ability of the Fiscal Agent to perform its obligations under this
Agreement.
(iii) The Fiscal Agent has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery
by each of the other parties hereto, constitutes a valid, legal and binding
obligation of the Fiscal Agent, enforceable against the Fiscal Agent in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
-126-
(v) The Fiscal Agent is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Fiscal Agent's good faith and reasonable judgment, is
likely to affect materially and adversely the ability of the Fiscal Agent
to perform its obligations under this Agreement.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Fiscal Agent of the transactions contemplated herein,
except for those consents, approvals, authorizations or orders that
previously have been obtained.
(vii) No litigation is pending or, to the best of the Fiscal Agent's
knowledge, threatened against the Fiscal Agent that, if determined
adversely to the Fiscal Agent, would prohibit the Fiscal Agent from
entering into this Agreement or that, in the Fiscal Agent's good faith and
reasonable judgment, is likely to materially and adversely affect the
ability of the Fiscal Agent to perform its obligations under this
Agreement.
(b) The representations and warranties of the Fiscal Agent set forth in
Section 2.11(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any party hereto of
any breach of any of such representations and warranties, which materially and
adversely affects the interests of the Certificateholders or any party hereto,
the party discovering such breach shall given prompt written notice to the other
parties hereto.
(c) Any successor Fiscal Agent shall be deemed to have made, as of the
date of its succession, each of the representations and warranties set forth in
Section 2.11(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.11(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
-127-
SECTION 2.12. Creation of REMIC I; Issuance of the REMIC I Regular
Interests and the REMIC I Residual Interest; Certain
Matters Involving REMIC I.
(a) It is the intention of the parties hereto that the following
segregated pool of assets constitute a REMIC for federal income tax purposes
and, further, that such segregated pool of assets be designated as "REMIC I":
(i) the Pooled Mortgage Loans that are from time to time subject to this
Agreement, together with (A) all payments under and proceeds of such Pooled
Mortgage Loans received after the Closing Date or, in the case of any such
Pooled Mortgage Loan that is a Replacement Pooled Mortgage Loan, after the
related date of substitution (other than scheduled payments of interest and
principal due on or before the respective Due Dates for such Pooled Mortgage
Loans in October 2002 or, in the case of any such Pooled Mortgage Loan that is a
Replacement Pooled Mortgage Loan, on or before the related date of substitution,
and exclusive of any such amounts that constitute Excess Servicing Fees and/or
Post-ARD Additional Interest), and (B) all rights of the holder of such Pooled
Mortgage Loans under the related Mortgage Loan Documents and in and to any
related Additional Collateral; (ii) any REO Property acquired in respect of any
Pooled Mortgage Loan; (iii) such funds and assets as from time to time are
deposited in the Collection Accounts, the Distribution Account, the Interest
Reserve Account, the Excess Liquidation Proceeds Account and, if established,
the REO Account (exclusive of any such amounts that constitute Excess Servicing
Fees and/or Post-ARD Additional Interest); and (iv) the rights of the Depositor
under Sections 2, 3, 4 (other than Section 4(c)) and 5 (and, to the extent
related to the foregoing, Sections 9, 10, 11, 12, 13, 14, 15, 17 and 18) of each
Pooled Mortgage Loan Purchase Agreement (or, in the case of the PMCF Mortgage
Loans, the rights of the Depositor (as assigned under the ▇▇▇▇▇▇▇ Bank Mortgage
Loan Purchase Agreement) under the PMCF Pooled Mortgage Loan Purchase Agreement)
and the rights of the Depositor under Sections 2, 3, 4 and 5 (and, to the extent
related to the foregoing, Sections 9, 10, 11, 12, 13, 14, 15, 17 and 19) of the
▇▇▇▇▇▇▇ Bank Mortgage Loan Purchase Agreement. The Closing Date is hereby
designated as the "Startup Day" of REMIC I within the meaning of Section
860G(a)(9) of the Code.
(b) Concurrently with the assignment to the Trustee of the Original
Pooled Mortgage Loans and certain related assets, pursuant to Section 2.01(b),
and in exchange therefor, the REMIC I Regular Interests and the REMIC I Residual
Interest shall be issued. A single separate REMIC I Regular Interest shall be
issued with respect to each Original Pooled Mortgage Loan. For purposes of this
Agreement each REMIC I Regular Interest shall relate to the
-128-
Original Pooled Mortgage Loan in respect of which it was issued, to each
Replacement Pooled Mortgage Loan (if any) substituted for such Original Pooled
Mortgage Loan and to each REO Mortgage Loan deemed outstanding with respect to
any REO Property acquired in respect of such Original Pooled Mortgage Loan or
any such Replacement Pooled Mortgage Loan. Neither the REMIC I Residual Interest
nor any of the REMIC I Regular Interests shall be certificated. The REMIC I
Regular Interests and the REMIC I Residual Interest shall collectively
constitute the entire beneficial ownership of REMIC I.
(c) The REMIC I Regular Interests shall constitute the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the REMIC
I Residual Interest shall constitute the sole "residual interest" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC I. None of the parties
hereto, to the extent it is within the control thereof, shall create or permit
the creation of any other "interests" in REMIC I (within the meaning of Treasury
regulation section 1.860D-1(b)(1)).
(d) The designation for each REMIC I Regular Interest shall be the
identification number for the related Mortgage Loan set forth in the Pooled
Mortgage Loan Schedule.
(e) Each REMIC I Regular Interest shall have an Uncertificated
Principal Balance. As of the Closing Date, the Uncertificated Principal Balance
of each REMIC I Regular Interest shall equal the Cut-off Date Principal Balance
of the related Original Pooled Mortgage Loan (as specified in the Pooled
Mortgage Loan Schedule). On each Distribution Date, the Uncertificated Principal
Balance of each REMIC I Regular Interest shall be permanently reduced by any
distributions of principal deemed made with respect to such REMIC I Regular
Interest on such Distribution Date pursuant to Section 4.01(l) and, further, by
any Realized Losses and Additional Trust Fund Expenses deemed allocated to such
REMIC I Regular Interest on such Distribution Date pursuant to Section 4.04(d).
Except as provided in the preceding sentence, the Uncertificated Principal
Balance of each REMIC I Regular Interest shall not otherwise be increased or
reduced. Deemed distributions to REMIC II in reimbursement of any Realized
Losses and Additional Trust Fund Expenses previously deemed allocated to a REMIC
I Regular Interest, shall not constitute deemed distributions of principal and
shall not result in any reduction of the Uncertificated Principal Balance of
such REMIC I Regular Interest.
(f) The per annum rate at which each REMIC I Regular Interest shall
accrue interest during each Interest Accrual Period is herein referred to as its
"REMIC I Remittance Rate". The REMIC I Remittance Rate in respect of
-129-
any particular REMIC I Regular Interest, for any Interest Accrual Period, shall
equal (A) in the case of each 30/360 Mortgage Loan, the related Net Mortgage
Rate in effect for the related Pooled Mortgage Loan as of the Closing Date
(without regard to any modifications, extensions, waivers or amendments of such
Pooled Mortgage Loan subsequent to the Closing Date, whether entered into by the
applicable Master Servicer or the applicable Special Servicer or in connection
with any bankruptcy, insolvency or other similar proceeding involving the
related Borrower) and (B) in the case of each Actual/360 Mortgage Loan, a
fraction (expressed as a percentage), the numerator of which is the product of
12 times the Adjusted Actual/360 Accrued Interest Amount with respect to such
REMIC I Regular Interest for such Interest Accrual Period, and the denominator
of which is the Uncertificated Principal Balance of such REMIC I Regular
Interest immediately prior to the Distribution Date that corresponds to such
Interest Accrual Period.
The "Adjusted Actual/360 Accrued Interest Amount" with respect to any
REMIC I Regular Interest, for any Interest Accrual Period, is an amount of
interest equal to the product of (a) the Net Mortgage Rate in effect for the
related Pooled Mortgage Loan as of the Closing Date (without regard to any
modifications, extensions, waivers or amendments of such Pooled Mortgage Loan
subsequent to the Closing Date, whether entered into by the applicable Master
Servicer or the applicable Special Servicer or in connection with any
bankruptcy, insolvency or other similar proceeding involving the related
Borrower), multiplied by (b) a fraction, the numerator of which is the number of
days in such Interest Accrual Period, and the denominator of which is 360,
multiplied by (c) the Uncertificated Principal Balance of such REMIC I Regular
Interest immediately prior to the Distribution Date that corresponds to such
Interest Accrual Period; provided that, if the subject Interest Accrual Period
begins during (x) December of 2002 or December of any year thereafter that does
not immediately precede a leap year or (y) January of 2003 or January of any
year thereafter, then the amount of interest calculated with respect to any
particular REMIC I Regular Interest pursuant to this definition for such
Interest Accrual Period without regard to this proviso shall be decreased by the
Interest Reserve Amount, if any (and the fraction described in clause (B) of the
preceding paragraph shall be adjusted accordingly), with respect to the related
Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect thereto)
transferred, in accordance with Section 3.04(c), from the Collection Account to
the Interest Reserve Account on the Master Servicer Remittance Date that occurs
immediately following the end of such Interest Accrual Period; and provided,
further, that, if the subject Interest Accrual Period begins during February of
2003 or February of any year thereafter, then the amount calculated with respect
to any particular REMIC I Regular
-130-
Interest pursuant to either clause (1) or clause (2) of this definition for such
Interest Accrual Period without regard to this proviso shall be increased by the
Interest Reserve Amount(s), if any (and the fraction described in clause (B) of
the preceding paragraph shall be adjusted accordingly), with respect to the
related Pooled Mortgage Loan (or any successor REO Mortgage Loan with respect
thereto) transferred, in accordance with Section 3.05(c), from the Interest
Reserve Account to the Collection Account on the Master Servicer Remittance Date
that occurs immediately following the end of such Interest Accrual Period.
(g) Each REMIC I Regular Interest shall bear interest during each
Interest Accrual Period, such interest shall be calculated on a 30/360 Basis
and, during each Interest Accrual Period, such interest shall accrue at the
REMIC I Remittance Rate with respect to such REMIC I Regular Interest for such
Interest Accrual Period on the Uncertificated Principal Balance of such REMIC I
Regular Interest outstanding immediately prior to the related Distribution Date.
The total amount of interest accrued with respect to each REMIC I Regular
Interest during the Interest Accrual Period related to each Distribution Date is
referred to herein as its "Uncertificated Accrued Interest" for such
Distribution Date. The portion of the Uncertificated Accrued Interest with
respect to any REMIC I Regular Interest for any Interest Accrual Period that
shall be distributable to REMIC II, as the holder of such REMIC I Regular
Interest, on the related Distribution Date pursuant to Section 4.01(l), shall be
an amount (herein referred to as the "Uncertificated Distributable Interest"
with respect to such REMIC I Regular Interest for the related Distribution Date)
equal to (i) the Uncertificated Accrued Interest with respect to such REMIC I
Regular Interest for the related Interest Accrual Period, reduced (to not less
than zero) by (ii) the portion of any Net Aggregate Prepayment Interest
Shortfall for such Distribution Date that is allocable to such REMIC I Regular
Interest. For purposes of the foregoing, the Net Aggregate Prepayment Interest
Shortfall, if any, for each Distribution Date shall be allocated among all the
REMIC I Regular Interests on a pro rata basis in accordance with their
respective amounts of Uncertificated Accrued Interest for the related Interest
Accrual Period. If the entire Uncertificated Distributable Interest with respect
to any REMIC I Regular Interest for any Distribution Date is not deemed
distributed to REMIC II, as the holder of such REMIC I Regular Interest, on such
Distribution Date pursuant to Section 4.01(l), then the unpaid portion of such
Uncertificated Distributable Interest shall be distributable with respect to
such REMIC I Regular Interest for future Distribution Dates as provided in such
Section 4.01(l).
(h) Solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC I Regular
Interest shall be the Rated Final Distribution Date.
-131-
(i) The REMIC I Residual Interest will not have a principal balance and
will not bear interest.
SECTION 2.13. Conveyance of the REMIC I Regular Interests;
Acceptance of the REMIC I Regular Interests by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all of its right, title and interest in and to the REMIC I Regular Interests to
the Trustee for the benefit of the Holders of the Regular Interest Certificates
and the Class R Certificates. The Trustee acknowledges the assignment to it of
the REMIC I Regular Interests and declares that it holds and will hold the same
in trust for the exclusive use and benefit of all present and future Holders of
the Regular Interest Certificates and the Class R Certificates.
SECTION 2.14. Creation of REMIC II; Issuance of the REMIC II
Regular Interests and the REMIC II Residual Interest;
Certain Matters Involving REMIC II.
(a) It is the intention of the parties hereto that the segregated pool
of assets consisting of the REMIC I Regular Interests constitute a REMIC for
federal income tax purposes and, further, that such segregated pool of assets be
designated as "REMIC II". The Closing Date is hereby designated as the "Startup
Day" of REMIC II within the meaning of Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the REMIC I Regular Interests
to the Trustee pursuant to Section 2.13 and in exchange therefor, the REMIC II
Regular Interests and the REMIC II Residual Interest shall be issued. There
shall be twenty-eight (28) separate REMIC II Regular Interests. Neither the
REMIC II Residual Interest nor any of the REMIC II Regular Interests shall be
certificated. The REMIC II Regular Interests and the REMIC II Residual Interest
shall collectively constitute the entire beneficial ownership of REMIC II.
(c) The REMIC II Regular Interests shall constitute the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the REMIC
II Residual Interest shall constitute the sole "residual interest" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC II. None of the parties
hereto, to the extent it is within the control thereof, shall create or permit
-132-
the creation of any other "interests" in REMIC II (within the meaning of
Treasury regulation section 1.860D-1(b)(1)).
(d) The REMIC II Regular Interests will have the alphabetic or
alphanumeric designations indicated in the table set forth in the Preliminary
Statement under the caption "REMIC II".
(e) Each REMIC II Regular Interest shall have an Uncertificated
Principal Balance. As of the Closing Date, the Uncertificated Principal Balance
of each REMIC II Regular Interest shall equal the amount set forth opposite such
REMIC II Regular Interest in the table set forth in the Preliminary Statement
under the caption "REMIC II". On each Distribution Date, the Uncertificated
Principal Balance of each REMIC II Regular Interest shall be permanently reduced
by any distributions of principal deemed made with respect to such REMIC II
Regular Interest on such Distribution Date pursuant to Section 4.01(j) and,
further, by any Realized Losses and Additional Trust Fund Expenses deemed
allocated to such REMIC II Regular Interest on such Distribution Date pursuant
to Section 4.04(b). Except as provided in the preceding sentence, the
Uncertificated Principal Balance of each REMIC II Regular Interest shall not
otherwise be increased or reduced. Deemed distributions to REMIC III in
reimbursement of any Realized Losses and Additional Trust Fund Expenses
previously deemed allocated to a REMIC II Regular Interest, shall not constitute
deemed distributions of principal and shall not result in any reduction of the
Uncertificated Principal Balance of such REMIC II Regular Interest.
(f) The per annum rate at which each REMIC II Regular Interest shall
accrue interest during each Interest Accrual Period is herein referred to as its
"REMIC II Remittance Rate". The REMIC II Remittance Rate with respect to each
REMIC II Regular Interest, for any Interest Accrual Period, is the Weighted
Average REMIC I Remittance Rate for such Interest Accrual Period. The "Weighted
Average REMIC I Remittance Rate" with respect to any Interest Accrual Period is
the rate per annum equal to the weighted average, expressed as a percentage and
rounded to six decimal places, of the REMIC I Remittance Rates applicable to the
respective REMIC I Regular Interests for such Interest Accrual Period, weighted
on the basis of the respective Uncertificated Principal Balances of such REMIC I
Regular Interests outstanding immediately prior to the related Distribution
Date.
(g) Each REMIC II Regular Interest shall bear interest during each
Interest Accrual Period, such interest shall be calculated on a 30/360 Basis
and, during each Interest Accrual Period, such interest shall accrue at the
REMIC II Remittance Rate with respect to such REMIC II Regular Interest for such
-133-
Interest Accrual Period on the Uncertificated Principal Balance of such REMIC II
Regular Interest outstanding immediately prior to the related Distribution Date.
The total amount of interest accrued with respect to each REMIC II Regular
Interest during the Interest Accrual Period related to each Distribution Date is
referred to herein as its "Uncertificated Accrued Interest" for such
Distribution Date. The portion of the Uncertificated Accrued Interest with
respect to any REMIC II Regular Interest for any Interest Accrual Period that
shall be distributable to REMIC III, as the holder of such REMIC II Regular
Interest, on the related Distribution Date pursuant to Section 4.01(j), shall be
an amount (herein referred to as the "Uncertificated Distributable Interest"
with respect to such REMIC II Regular Interest for the related Distribution
Date) equal to (i) the Uncertificated Accrued Interest with respect to such
REMIC II Regular Interest for the related Interest Accrual Period, reduced (to
not less than zero) by (ii) the portion of any Net Aggregate Prepayment Interest
Shortfall for such Distribution Date that is allocable to such REMIC II Regular
Interest. For purposes of the foregoing, the Net Aggregate Prepayment Interest
Shortfall, if any, for each Distribution Date shall be allocated among all the
REMIC II Regular Interests on a pro rata basis in accordance with their
respective amounts of Uncertificated Accrued Interest for the related Interest
Accrual Period. If the entire Uncertificated Distributable Interest with respect
to any REMIC II Regular Interest for any Distribution Date is not deemed
distributed to REMIC III, as the holder of such REMIC II Regular Interest, on
such Distribution Date pursuant to Section 4.01(j), then the unpaid portion of
such Uncertificated Distributable Interest shall be distributable with respect
to such REMIC II Regular Interest for future Distribution Dates as provided in
Section such Section 4.01(j).
(h) Solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC II Regular
Interest shall be the Rated Final Distribution Date.
(i) The REMIC II Residual Interest shall not have a principal balance
and shall not bear interest.
SECTION 2.15. Conveyance of the REMIC II Regular Interests;
Acceptance of the REMIC II Regular Interests by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all of its right, title and interest in and to the REMIC II Regular Interests to
the Trustee for the benefit of the Holders of the Regular Interest Certificates
and the Class R Certificates. The Trustee acknowledges the assignment to it of
the
-134-
REMIC II Regular Interests and declares that it holds and will hold the same
in trust for the exclusive use and benefit of all present and future Holders of
the Regular Interest Certificates and the Class R Certificates.
SECTION 2.16. Creation of REMIC III; Issuance of the Regular
Interest Certificates, the REMIC III Components and the
REMIC III Residual Interest; Certain Matters Involving
REMIC III.
(a) It is the intention of the parties hereto that the segregated pool
of assets consisting of the REMIC II Regular Interests constitute a REMIC for
federal income tax purposes and, further, that such segregated pool of assets be
designated as "REMIC III". The Closing Date is hereby designated as the "Startup
Day" of REMIC III within the meaning of Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the REMIC II Regular Interests
to the Trustee pursuant to Section 2.15 and in exchange therefor, the REMIC III
Components and the REMIC III Residual Interest shall be issued, and the Trustee
shall execute, and the Certificate Registrar shall authenticate and deliver, to
or upon the order of the Depositor, the Regular Interest Certificates in
authorized denominations. There shall be seventeen (17) Classes of Regular
Interest Certificates. The Class X-1 Certificates shall collectively represent
all of the REMIC III Components whose designations are set forth in the first
paragraph under the caption "REMIC III--Designations of the REMIC III
Components" in the Preliminary Statement hereto and the Class X-2 Certificates
shall collectively represent all of the REMIC III Components whose designations
are set forth in the second paragraph under the caption "REMIC III--Designations
of the REMIC III Components" in the Preliminary Statement hereto. The REMIC III
Residual Interest shall not be certificated. The interests evidenced by the
Regular Interest Certificates, together with the REMIC III Residual Interest,
shall collectively constitute the entire beneficial ownership of REMIC III.
(c) The respective REMIC III Components of the Class X-1 Certificates,
the respective REMIC III Components of the Class X-2 Certificates and the
respective interests evidenced by the various Classes of the Principal Balance
Certificates shall constitute the "regular interests" (within the meaning of
Section 860G(a)(1) of the Code), and the REMIC III Residual Interest shall
constitute the sole "residual interest" (within the meaning of Section
860(G)(a)(2) of the Code), in REMIC III. None of the parties hereto, to the
extent it is within
-135-
the control thereof, shall create or permit the creation of any other
"interests" in REMIC III (within the meaning of Treasury regulation section
1.860D-1(b)(1)).
(d) The REMIC III Components of the Class X-1 Certificates, the REMIC
III Components of the Class X-2 Certificates and the Regular Interest
Certificates will have the alphabetic or alphanumeric designations indicated in
the Preliminary Statement under the caption "REMIC III".
(e) Each Class of Principal Balance Certificates shall have a Class
Principal Balance. As of the Closing Date, the Class Principal Balance of each
Class of Principal Balance Certificates shall equal the amount set forth
opposite such Class in the table set forth in the Preliminary Statement under
the caption "REMIC III". On each Distribution Date, the Class Principal Balance
of each Class of Principal Balance Certificates shall be permanently reduced by
any distributions of principal made in respect of such Class of Certificates on
such Distribution Date pursuant to Section 4.01(a) and, further, by any Realized
Losses and/or Additional Trust Fund Expenses allocated to such Class of
Certificates on such Distribution Date pursuant to Section 4.04(a). Except as
provided in the preceding sentence, the Class Principal Balance of each Class of
Principal Balance Certificates shall not otherwise be increased or reduced.
Distributions in reimbursement of the Holders of any such Class of Principal
Balance Certificates for previously allocated Realized Losses and Additional
Trust Fund Expenses shall not constitute distributions of principal and shall
not result in any reduction of the Certificate Principal Balances of such
Certificates or of the related Class Principal Balance.
The Interest Only Certificates shall not have principal balances. For
purposes of accruing interest, however, each Class of Interest Only Certificates
shall have or be deemed to have a Class Notional Amount that is, as of any date
of determination, equal to: (i) in the case of the Class X-1 Certificates, the
total of the then Uncertificated Notional Amounts of the REMIC III Components of
the Class X-1 Certificates; and (ii) in the case of the Class X-2 Certificates,
(A) from the Closing Date through and including the Distribution Date in October
2004, the aggregate of the Component Notional Amounts of all the REMIC III
Components of the Class X-2 Certificates; (B) subsequent to the Distribution
Date in October 2004 through and including the Distribution Date in October
2005, the aggregate of the Component Notional Amounts of REMIC III Components
▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇,
X2-C, X2-D-1, X2-D-2, X2-E-1, X2-E-2, X2-F-1, X2-F-2, X2-G-1, X2-G-2, X2-H-1,
X2-H-2 and X2-J-2; (C) subsequent to the Distribution Date in October 2005
through and including the Distribution Date in October 2006, the aggregate of
the Component Notional Amounts of REMIC III
-136-
Components ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇-▇,
X2-D-2, X2-E-1, X2-E-2, X2-F-1, X2-F-2, X2-G-1, X2-G-2 and X2-H-2; (D)
subsequent to the Distribution Date in October 2006 through and including the
Distribution Date in October 2007, the aggregate of the Component Notional
Amounts of REMIC III Components ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇,
▇▇-▇-▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇-▇, X2-D-2, X2-E-1, X2-E-2, X2-F-1, X2-F-2 and X2-G-2;
(E) subsequent to the Distribution Date in October 2007 through and including
the Distribution Date in October 2008, the aggregate of the Component Notional
Amounts of REMIC III Components ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇,
▇▇-▇, ▇▇-▇-▇, X2-D-2, X2-E-1, X2-E-2 and X2-F-2; (F) subsequent to the
Distribution Date in October 2008 through and including the Distribution Date in
October 2009, the aggregate of the Component Notional Amounts of REMIC III
Components ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇-▇, ▇▇-▇-▇ and X2-E-2; (G)
subsequent to the Distribution Date in October 2009 through and including the
Distribution Date in October 2010, the aggregate of the Component Notional
Amounts of REMIC III Components X2-A-2-3, X2-B, X2-C and X2-D-2; and (H)
subsequent to the Distribution Date in October 2010, shall equal zero ($0).
None of the REMIC III Components of the Class X-1 Certificates or the
REMIC III Components of the Class X-2 Certificates shall have a principal
balance. For purposes of accruing interest, however, each REMIC III Component of
the Class X-1 Certificates and each REMIC III Component of the Class X-2
Certificates shall have a Component Notional Amount. The Component Notional
Amount of each REMIC III Component of the Class X-1 Certificates is, as of any
date of determination, equal to the then current Uncertificated Principal
Balance of the REMIC II Regular Interest that is the Corresponding REMIC II
Regular Interest for such REMIC III Component. The Component Notional Amount of
each REMIC III Component of the Class X-2 Certificates is, as of any date of
determination, equal to the then current Uncertificated Principal Balance of the
REMIC II Regular Interest that is the Corresponding REMIC II Regular Interest
for such REMIC III Component.
(f) Each Class of Regular Interest Certificates, each REMIC III
Component of the Class X-1 Certificates and each REMIC III Component of the
Class X-2 Certificates shall have or be deemed to have a Pass-Through Rate. In
each case, the "Pass-Through Rate" for any Interest Accrual Period is: (a) with
respect to the Class A-1 Certificates, an annual rate equal to 3.97% per annum;
(b) with respect to the Class A-2 Certificates, an annual rate equal to 4.72%
per annum; (c) with respect to the Class B Certificates, an annual rate equal to
4.87% per annum; (d) with respect to the Class C Certificates, an annual rate
equal to 4.97% per annum; (e) with respect to the Class D Certificates, an
annual rate
-137-
equal to 5.05% per annum; (f) with respect to the Class E Certificates, an
annual rate equal to 5.44% per annum; (g) with respect to the Class F
Certificates for any Interest Accrual Period, an annual rate equal to 5.49% per
annum; (h) with respect to the Class G Certificates, an annual rate equal to
5.83% per annum; (i) with respect to the Class H Certificates, an annual rate
equal to 6.00% per annum; (j) with respect to the Class J Certificates, an
annual rate equal to 6.00% per annum; (k) with respect to the Class K
Certificates, an annual rate equal to 6.00% per annum; (l) with respect to the
Class L Certificates, an annual rate equal to 6.00% per annum; (m) with respect
to the Class M Certificates, an annual rate equal to 6.00% per annum; (n) with
respect to the Class N Certificates, an annual rate equal to 6.00% per annum;
(o) with respect to the Class P Certificates, an annual rate equal to 6.00% per
annum; (p) with respect to each REMIC III Component of the Class X-1
Certificates, an annual rate equal to the greater of (I) zero and (II) the
excess, if any, of (i) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period, over (ii) the Adjusted REMIC II Remittance Rate for
such Interest Accrual Period applicable to the REMIC II Regular Interest that is
the Corresponding REMIC II Regular Interest for such REMIC III Component; (q)
with respect to the Class X-1 Certificates, an annual rate equal to the weighted
average (expressed as a percentage and rounded to six decimal places) of the
Pass-Through Rates applicable to the respective REMIC III Components of the
Class X-1 Certificates for such Interest Accrual Period, weighted on the basis
of the respective Component Notional Amounts of such REMIC III Components
outstanding immediately prior to the related Distribution Date; (r) with respect
to each REMIC III Component of the Class X-2 Certificates, an annual rate equal
to the greater of (I) zero and (II) the excess, if any, of (i) the Adjusted
REMIC II Remittance Rate for such Interest Accrual Period applicable to the
REMIC II Regular Interest that is the Corresponding REMIC II Regular Interest
for such REMIC III Component, over (ii) a rate per annum that is the same as the
fixed Pass-Through Rate for the Class of Principal Balance Certificates that has
a Corresponding REMIC II Regular Interest that is also the sole Corresponding
REMIC II Regular Interest for such REMIC III Component of the Class X-2
Certificates; and (s) with respect to the Class X-2 Certificates, an annual rate
equal to the weighted average (expressed as a percentage and rounded to six
decimal places) of the Pass-Through Rates applicable to the respective REMIC III
Components of the Class X-2 Certificates for such Interest Accrual Period that
are to be taken into account in such calculation as set forth in the immediately
succeeding sentence, weighted on the basis of the respective Component Notional
Amounts of such REMIC III Components outstanding immediately prior to the
related Distribution Date; provided, however, that for each Interest Accrual
Period following the Interest Accrual Period related to the Distribution Date in
October 2010, the Pass-Through Rate of the Class X-2 Certificates shall equal 0%
per
-138-
annum. For purposes of clause (s) of the immediately preceding sentence, the
Pass-Through Rate of the Class X-2 Certificates: (A) for the initial Interest
Accrual Period and each Interest Accrual Period thereafter through and including
the Interest Accrual Period related to the Distribution Date in October 2004,
shall be calculated taking into account the respective Pass-Through Rates of all
the REMIC III Components of the Class X-2 Certificates (that is, REMIC III
Components ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇,
▇▇-▇-▇-▇, ▇▇-▇, X2-C, X2-D-1, X2-D-2, X2-E-1, X2-E-2, ▇-▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇,
▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇ ▇▇▇ ▇▇-▇); (B) for each Interest Accrual
Period subsequent to the Interest Accrual Period related to the Distribution
Date in October 2004 through and including the Interest Accrual Period related
to the Distribution Date in October 2005, shall be calculated taking into
account only the respective Pass-Through Rates of REMIC III Components ▇▇-▇-▇-▇,
▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇, X2-C, X2-D-1,
X2-D-2, X2-E-1, ▇▇-▇-▇, ▇-▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, X2-H-2 and
X2-J-2; (C) for each Interest Accrual Period subsequent to the Interest Accrual
Period related to the Distribution Date in October 2005 through and including
the Interest Accrual Period related to the Distribution Date in October 2006,
shall be calculated taking into account only the respective Pass-Through Rates
of REMIC III Components ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇,
▇▇-▇, ▇▇-▇-▇, X2-D-2, X2-E-1, X2-E-2, X-2-F-1, X2-F-2, X2-G-1, X2-G-2 and
X2-H-2; (D) for each Interest Accrual Period subsequent to the Interest Accrual
Period related to the Distribution Date in October 2006 through and including
the Interest Accrual Period related to the Distribution Date in October 2007,
shall be calculated taking into account only the respective Pass-Through Rates
of REMIC III Components ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇,
▇▇-▇, ▇▇-▇-▇, X2-D-2, X2-E-1, X2-E-2, X-2-F-1, X2-F-2 and X2-G-2; (E) for each
Interest Accrual Period subsequent to the Interest Accrual Period related to the
Distribution Date in October 2007 through and including the Interest Accrual
Period related to the Distribution Date in October 2008, shall be calculated
taking into account only the respective Pass-Through Rates of REMIC III
Components ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇-▇, X2-D-2,
X2-E-1, X2-E-2 and X2-F-2; (F) for each Interest Accrual Period subsequent to
the Interest Accrual Period related to the Distribution Date in October 2008
through and including the Interest Accrual Period related to the Distribution
Date in October 2009, shall be calculated taking into account only the
respective Pass-Through Rates of REMIC III Components ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇,
▇▇-▇, ▇▇-▇-▇, ▇▇-▇-▇ and X2-E-2; and (G) for each Interest Accrual Period
subsequent to the Interest Accrual Period related to the Distribution Date in
October 2009 through and including the Interest Accrual Period related to the
Distribution Date in October 2010, shall be calculated taking
-139-
into account only the respective Pass-Through Rates of REMIC III Components
X2-A-2-3, X2-B, X2-C and X2-D-2.
The "Adjusted REMIC II Remittance Rate" for each REMIC II Regular
Interest for any Interest Accrual Period for purposes of the definition of
Pass-Through Rate is: (a) with respect to REMIC II Regular Interest A-1-1, for
any Interest Accrual Period, a rate per annum that is the same as the fixed
Pass-Through Rate for the Class A-1 Certificates; (b) with respect to REMIC II
Regular Interest A-1-2, (i) for any Interest Accrual Period from and including
the Interest Accrual Period related to the initial Distribution Date through and
including the Interest Accrual Period related to the Distribution Date in
October 2004, an annual rate equal to the greater of (A) a rate per annum that
is the same as the fixed Pass-Through Rate for the Class A-1 Certificates and
(B) a rate per annum that is equal to the lesser of (x) the Reference Rate for
such Interest Accrual Period and (y) the Weighted Average REMIC I Remittance
Rate for such Interest Accrual Period, and (ii) for each Interest Accrual Period
after the Interest Accrual Period related to the Distribution Date in October
2004, a rate per annum that is equal to the fixed Pass-Through Rate for the
Class A-1 Certificates; (c) with respect to REMIC II Regular Interest A-1-3, (i)
for any Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the Interest
Accrual Period related to the Distribution Date in October 2005, an annual rate
equal to the greater of (A) a rate per annum that is the same as the fixed
Pass-Through Rate for the Class A-1 Certificates and (B) a rate per annum that
is equal to the lesser of (x) the Reference Rate for such Interest Accrual
Period and (y) the Weighted Average REMIC I Remittance Rate for such Interest
Accrual Period, and (ii) for each Interest Accrual Period after the Interest
Accrual Period related to the Distribution Date in October 2005, a rate per
annum that is equal to the fixed Pass-Through Rate for the Class A-1
Certificates; (d) with respect to REMIC II Regular Interest A-1-4, (i) for any
Interest Accrual Period from and including the Interest Accrual Period related
to the initial Distribution Date through and including the Interest Accrual
Period related to the Distribution Date in October 2006, an annual rate equal to
the greater of (A) a rate per annum that is the same as the fixed Pass-Through
Rate for the Class A-1 Certificates and (B) a rate per annum that is equal to
the lesser of (x) the Reference Rate for such Interest Accrual Period and (y)
the Weighted Average REMIC I Remittance Rate for such Interest Accrual Period,
and (ii) for each Interest Accrual Period after the Interest Accrual Period
related to the Distribution Date in October 2006, a rate per annum that is equal
to the fixed Pass-Through Rate for the Class A-1 Certificates; (e) with respect
to REMIC II Regular Interest A-1-5, (i) for any Interest Accrual Period from and
including the Interest Accrual Period related to the initial Distribution Date
-140-
through and including the Interest Accrual Period related to the Distribution
Date in October 2007, an annual rate equal to the greater of (A) a rate per
annum that is the same as the fixed Pass-Through Rate for the Class A-1
Certificates and (B) a rate per annum that is equal to the lesser of (x) the
Reference Rate for such Interest Accrual Period and (y) the Weighted Average
REMIC I Remittance Rate for such Interest Accrual Period, and (ii) for each
Interest Accrual Period after the Interest Accrual Period related to the
Distribution Date in October 2007, a rate per annum that is equal to the fixed
Pass-Through Rate for the Class A-1 Certificates; (f) with respect to REMIC II
Regular Interest A-1-6, (i) for any Interest Accrual Period from and including
the Interest Accrual Period related to the initial Distribution Date
through and including the Interest Accrual Period related to the Distribution
Date in October 2008, an annual rate equal to the greater of (A) a rate per
annum that is the same as the fixed Pass-Through Rate for the Class A-1
Certificates and (B) a rate per annum that is equal to the lesser of (x) the
Reference Rate for such Interest Accrual Period and (y) the Weighted Average
REMIC I Remittance Rate for such Interest Accrual Period, and (ii) for each
Interest Accrual Period after the Interest Accrual Period related to the
Distribution Date in October 2008, a rate per annum that is equal to the fixed
Pass-Through Rate for the Class A-1 Certificates; (g) with respect to REMIC II
Regular Interest A-2-1, (i) for any Interest Accrual Period from and including
the Interest Accrual Period related to the initial Distribution Date through and
including the Interest Accrual Period related to the Distribution Date in
October 2008, an annual rate equal to the greater of (A) a rate per annum that
is the same as the fixed Pass-Through Rate for the Class A-2 Certificates and
(B) a rate per annum that is equal to the lesser of (x) the Reference Rate for
such Interest Accrual Period and (y) the Weighted Average REMIC I Remittance
Rate for such Interest Accrual Period, and (ii) for each Interest Accrual Period
after the Interest Accrual Period related to the Distribution Date in October
2008, a rate per annum that is equal to the fixed Pass-Through Rate for the
Class A-2 Certificates; (h) with respect to REMIC II Regular Interest A-2-2, (i)
for any Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the Interest
Accrual Period related to the Distribution Date in October 2009, an annual rate
equal to the greater of (A) a rate per annum that is the same as the fixed
Pass-Through Rate for the Class A-2 Certificates and (B) a rate per annum that
is equal to the lesser of (x) the Reference Rate for such Interest Accrual
Period and (y) the Weighted Average REMIC I Remittance Rate for such Interest
Accrual Period, and (ii) for each Interest Accrual Period after the Interest
Accrual Period related to the Distribution Date in October 2009, a rate per
annum that is equal to the fixed Pass-Through Rate for the Class A-2
Certificates; (i) with respect to REMIC II Regular Interest A-2-3, (i) for any
Interest Accrual Period from and including the Interest Accrual Period related
to the initial
-141-
Distribution Date through and including the Interest Accrual Period related to
the Distribution Date in October 2010, an annual rate equal to the greater of
(A) a rate per annum that is the same as the fixed Pass-Through Rate for the
Class A-2 Certificates and (B) a rate per annum that is equal to the lesser of
(x) the Reference Rate for such Interest Accrual Period and (y) the Weighted
Average REMIC I Remittance Rate for such Interest Accrual Period, and (ii) for
each Interest Accrual Period after the Interest Accrual Period related to the
Distribution Date in October 2010, a rate per annum that is equal to the fixed
Pass-Through Rate for the Class A-2 Certificates; (j) with respect to REMIC II
Regular Interest B, (i) for any Interest Accrual Period from and including the
Interest Accrual Period related to the initial Distribution Date through and
including the Interest Accrual Period related to the Distribution Date in
October 2010, a rate per annum equal to the greater of (A) the rate per annum
that is the same as the fixed Pass-Through Rate for the Class B Certificates and
(B) a rate per annum that is equal to the lesser of (x) the Reference Rate for
such Interest Accrual Period and (y) the Weighted Average REMIC I Remittance
Rate for such Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period related to the Distribution Date in
October 2010, the rate per annum that is the same as the fixed Pass-Through Rate
for the Class B Certificates; (k) with respect to REMIC II Regular Interest C,
(i) for any Interest Accrual Period from and including the Interest Accrual
Period related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in October 2010, a rate
per annum equal to the greater of (A) the rate per annum that is the same as the
fixed Pass-Through Rate for the Class C Certificates and (B) a rate per annum
that is equal to the lesser of (x) the Reference Rate for such Interest Accrual
Period and (y) the Weighted Average REMIC I Remittance Rate for such Interest
Accrual Period, and (ii) for any Interest Accrual Period subsequent to the
Interest Accrual Period related to the Distribution Date in October 2010, the
rate per annum that is the same as the fixed Pass-Through Rate for the Class C
Certificates; (l) with respect to REMIC II Regular Interest D-1, (i) for any
Interest Accrual Period from and including the Interest Accrual Period related
to the initial Distribution Date through and including the Interest Accrual
Period related to the Distribution Date in October 2009, an annual rate equal to
the greater of (A) a rate per annum that is the same as the fixed Pass-Through
Rate for the Class D Certificates and (B) a rate per annum that is equal to the
lesser of (x) the Reference Rate for such Interest Accrual Period and (y) the
Weighted Average REMIC I Remittance Rate for such Interest Accrual Period, and
(ii) for each Interest Accrual Period after the Interest Accrual Period related
to the Distribution Date in October 2009, a rate per annum that is equal to the
fixed Pass-Through Rate for the Class D Certificates; (m) with respect to REMIC
II Regular Interest D-2, (i) for any Interest Accrual Period from and including
the
-142-
Interest Accrual Period related to the initial Distribution Date through and
including the Interest Accrual Period related to the Distribution Date in
October 2010, an annual rate equal to the greater of (A) a rate per annum that
is the same as the fixed Pass-Through Rate for the Class D Certificates and (B)
a rate per annum that is equal to the lesser of (x) the Reference Rate for such
Interest Accrual Period and (y) the Weighted Average REMIC I Remittance Rate for
such Interest Accrual Period, and (ii) for each Interest Accrual Period after
the Interest Accrual Period related to the Distribution Date in October 2010, a
rate per annum that is equal to the fixed Pass-Through Rate for the Class D
Certificates; (n) with respect to REMIC II Regular Interest E-1, (i) for any
Interest Accrual Period from and including the Interest Accrual Period related
to the initial Distribution Date through and including the Interest Accrual
Period related to the Distribution Date in October 2008, an annual rate equal to
the greater of (A) a rate per annum that is the same as the fixed Pass-Through
Rate for the Class E Certificates and (B) a rate per annum that is equal to the
lesser of (x) the Reference Rate for such Interest Accrual Period and (y) the
Weighted Average REMIC I Remittance Rate for such Interest Accrual Period, and
(ii) for each Interest Accrual Period after the Interest Accrual Period related
to the Distribution Date in October 2008, a rate per annum that is equal to the
fixed Pass-Through Rate for the Class E Certificates; (o) with respect to REMIC
II Regular Interest E-2, (i) for any Interest Accrual Period from and including
the Interest Accrual Period related to the initial Distribution Date through and
including the Interest Accrual Period related to the Distribution Date in
October 2009, an annual rate equal to the greater of (A) a rate per annum that
is the same as the fixed Pass-Through Rate for the Class E Certificates and (B)
a rate per annum that is equal to the lesser of (x) the Reference Rate for such
Interest Accrual Period and (y) the Weighted Average REMIC I Remittance Rate for
such Interest Accrual Period, and (ii) for each Interest Accrual Period after
the Interest Accrual Period related to the Distribution Date in October 2009, a
rate per annum that is equal to the fixed Pass-Through Rate for the Class E
Certificates; (p) with respect to REMIC II Regular Interest F-1, (i) for any
Interest Accrual Period from and including the Interest Accrual Period related
to the initial Distribution Date through and including the Interest Accrual
Period related to the Distribution Date in October 2007, an annual rate equal to
the greater of (A) a rate per annum that is the same as the fixed Pass-Through
Rate for the Class F Certificates and (B) a rate per annum that is equal to the
lesser of (x) the Reference Rate for such Interest Accrual Period and (y) the
Weighted Average REMIC I Remittance Rate for such Interest Accrual Period, and
(ii) for each Interest Accrual Period after the Interest Accrual Period related
to the Distribution Date in October 2007, a rate per annum that is equal to the
fixed Pass-Through Rate for the Class F Certificates; (q) with respect to REMIC
II Regular Interest F-2, (i) for any Interest Accrual Period from and including
the
-143-
Interest Accrual Period related to the initial Distribution Date through and
including the Interest Accrual Period related to the Distribution Date in
October 2008, an annual rate equal to the greater of (A) a rate per annum that
is the same as the fixed Pass-Through Rate for the Class F Certificates and (B)
a rate per annum that is equal to the lesser of (x) the Reference Rate for such
Interest Accrual Period and (y) the Weighted Average REMIC I Remittance Rate for
such Interest Accrual Period, and (ii) for each Interest Accrual Period after
the Interest Accrual Period related to the Distribution Date in October 2008, a
rate per annum that is equal to the fixed Pass-Through Rate for the Class F
Certificates; (r) with respect to REMIC II Regular Interest G-1, (i) for any
Interest Accrual Period from and including the Interest Accrual Period related
to the initial Distribution Date through and including the Interest Accrual
Period related to the Distribution Date in October 2006, a rate per annum equal
to the greater of (A) a rate per annum that is the same as the fixed
Pass-Through Rate for the Class G Certificates and (B) a rate per annum that is
equal to the lesser of (x) the Reference Rate for such Interest Accrual Period
and (y) the Weighted Average REMIC I Remittance Rate for such Interest Accrual
Period, and (ii) for each Interest Accrual Period subsequent to the Interest
Accrual Period related to the Distribution Date in October 2006, a rate per
annum that is equal to the fixed Pass-Through Rate for the Class G Certificates;
(s) with respect to REMIC II Regular Interest G-2, (i) for any Interest Accrual
Period from and including the Interest Accrual Period related to the initial
Distribution Date through and including the Interest Accrual Period related to
the Distribution Date in October 2007, a rate per annum equal to the greater of
(A) a rate per annum that is the same as the fixed Pass-Through Rate for the
Class G Certificates and (B) a rate per annum that is equal to the lesser of (x)
the Reference Rate for such Interest Accrual Period and (y) the Weighted Average
REMIC I Remittance Rate for such Interest Accrual Period, and (ii) for each
Interest Accrual Period subsequent to the Interest Accrual Period related to the
Distribution Date in October 2007, a rate per annum that is equal to the fixed
Pass-Through Rate for the Class G Certificates; (t) with respect to REMIC II
Regular Interest H-1, (i) for any Interest Accrual Period from and including the
Interest Accrual Period related to the initial Distribution Date through and
including the Interest Accrual Period related to the Distribution Date in
October 2005, an annual rate equal to the greater of (A) a rate per annum that
is the same as the fixed Pass-Through Rate for the Class H Certificates and (B)
a rate per annum that is equal to the lesser of (x) the Reference Rate for such
Interest Accrual Period and (y) the Weighted Average REMIC I Remittance Rate for
such Interest Accrual Period, and (ii) for each Interest Accrual Period after
the Interest Accrual Period related to the Distribution Date in October 2005, a
rate per annum that is equal to the fixed Pass-Through Rate for the Class H
Certificates; (u) with respect to REMIC II Regular Interest H-2, (i) for any
Interest Accrual Period from
-144-
and including the Interest Accrual Period related to the initial Distribution
Date through and including the Interest Accrual Period related to the
Distribution Date in October 2006, an annual rate equal to the greater of (A) a
rate per annum that is the same as the fixed Pass-Through Rate for the Class H
Certificates and (B) a rate per annum that is equal to the lesser of (x) the
Reference Rate for such Interest Accrual Period and (y) the Weighted Average
REMIC I Remittance Rate for such Interest Accrual Period, and (ii) for each
Interest Accrual Period after the Interest Accrual Period related to the
Distribution Date in October 2006, a rate per annum that is equal to the fixed
Pass-Through Rate for the Class H Certificates; (v) with respect to REMIC II
Regular Interest J-1, (i) for any Interest Accrual Period from and including the
Interest Accrual Period related to the initial Distribution Date through and
including the Interest Accrual Period related to the Distribution Date in
October 2004, an annual rate equal to the greater of (A) a rate per annum that
is the same as the fixed Pass-Through Rate for the Class J Certificates and (B)
a rate per annum that is equal to the lesser of (x) the Reference Rate for such
Interest Accrual Period and (y) the Weighted Average REMIC I Remittance Rate for
such Interest Accrual Period, and (ii) for each Interest Accrual Period after
the Interest Accrual Period related to the Distribution Date in October 2004, a
rate per annum that is equal to the fixed Pass-Through Rate for the Class J
Certificates; (w) with respect to REMIC II Regular Interest J-2, (i) for any
Interest Accrual Period from and including the Interest Accrual Period related
to the initial Distribution Date through and including the Interest Accrual
Period related to the Distribution Date in October 2005, an annual rate equal to
the greater of (A) a rate per annum that is the same as the fixed Pass-Through
Rate for the Class J Certificates and (B) a rate per annum that is equal to the
lesser of (x) the Reference Rate for such Interest Accrual Period and (y) the
Weighted Average REMIC I Remittance Rate for such Interest Accrual Period, and
(ii) for each Interest Accrual Period after the Interest Accrual Period related
to the Distribution Date in October 2005, a rate per annum that is equal to the
fixed Pass-Through Rate for the Class J Certificates; (x) with respect to REMIC
II Regular Interest K, (i) for any Interest Accrual Period from and including
the Interest Accrual Period related to the initial Distribution Date through and
including the Interest Accrual Period related to the Distribution Date in
October 2004, an annual rate equal to the greater of (A) a rate per annum that
is the same as the fixed Pass-Through Rate for the Class K Certificates and (B)
a rate per annum that is equal to the lesser of (x) the Reference Rate for such
Interest Accrual Period and (y) the Weighted Average REMIC I Remittance Rate for
such Interest Accrual Period, and (ii) for each Interest Accrual Period after
the Interest Accrual Period related to the Distribution Date in October 2004, a
rate per annum that is equal to the fixed Pass-Through Rate for the Class K
Certificates; and (y) with respect to each of REMIC II Regular Interest L, REMIC
II Regular Interest
-145-
M, REMIC II Regular Interest N and REMIC II Regular Interest P, for each
Interest Accrual Period, a rate per annum that is the same as the fixed
Pass-Through Rate for the Class of Principal Balance Certificates for which such
REMIC II Regular Interest is the Corresponding REMIC II Regular Interest.
(g) Solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each Class of
Principal Balance Certificates, each REMIC III Component of the Class X-1
Certificates and each REMIC III Component of the Class X-2 Certificates is the
Rated Final Distribution Date.
(h) The REMIC III Residual Interest shall not have a principal balance
and shall not bear interest.
SECTION 2.17. Acceptance of Grantor Trusts; Issuance of the
Class V and Class R Certificates.
(a) It is the intention of the parties hereto that the segregated pool
of assets consisting of any collections of Post-ARD Additional Interest received
on the ARD Mortgage Loans constitute a Grantor Trust for federal income tax
purposes and, further, that such segregated pool of assets be designated as
"Grantor Trust V". The Trustee, by its execution and delivery hereof,
acknowledges the assignment to it of the assets of Grantor Trust V and declares
that it holds and will hold such assets in trust for the exclusive use and
benefit of all present and future Holders of the Class V Certificates.
Concurrently with the assignment to it of the assets included in Grantor Trust
V, the Trustee shall execute, and the Certificate Registrar shall authenticate
and deliver, to or upon the order of the Depositor, the Class V Certificates in
authorized denominations evidencing the entire beneficial ownership of Grantor
Trust V and initially registered in the name of ARCap CMBS Fund REIT, Inc. The
rights of the Holders of the Class V Certificates to receive distributions from
the proceeds of Grantor Trust V, and all ownership interests of such Holders in
and to such distributions, shall be as set forth in this Agreement.
(b) The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all right, title and interest of the Depositor in and to the REMIC I Residual
Interest, the REMIC II Residual Interest and the REMIC III Residual Interest to
the Trustee for the benefit of the Holders of the Class R Certificates. It is
the intention of the parties hereto that the segregated pool of assets
consisting of the REMIC I Residual Interest, the REMIC II Residual Interest and
the REMIC III Residual Interest constitute a Grantor Trust for federal income
tax purposes
-146-
and, further, that such segregated pool of assets be designated as "Grantor
Trust R". The Trustee, by its execution and delivery hereof, acknowledges the
assignment to it of the assets of Grantor Trust R and declares that it holds and
will hold such assets in trust for the exclusive use and benefit of all present
and future Holders of the Class R Certificates. Concurrently with the assignment
to it of the assets included in Grantor Trust R, the Trustee shall execute, and
the Certificate Registrar shall authenticate and deliver, to or upon the order
of the Depositor, the Class R Certificates in authorized denominations
evidencing the entire beneficial ownership of Grantor Trust R. The rights of the
Holders of the Class R Certificates to receive distributions from the proceeds
of Grantor Trust R, and all ownership interests of such Holders in and to such
distributions, shall be as set forth in this Agreement.
-147-
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. General Provisions.
(a) Each Master Servicer shall be obligated to service and administer
the Mortgage Loans opposite which such Master Servicer's name is set forth on
the Pooled Mortgage Loan Schedule. Each of the Master Servicers and the General
Special Servicer shall service and administer the Mortgage Loans and any REO
Properties (other than RREEF Textron Mortgage Loan Pair and any related REO
Properties) that it is obligated to service and administer pursuant to this
Agreement on behalf of the Trustee, and in the best interests and for the
benefit of the Certificateholders (as a collective whole) in accordance with any
and all applicable laws and the terms of this Agreement, and the respective
Mortgage Loans and, to the extent consistent with the foregoing, in accordance
with the Servicing Standard. The applicable Master Servicer and the RREEF
Textron Special Servicer shall service and administer the RREEF Textron Mortgage
Loan Pair and any related REO Properties for the benefit of the
Certificateholders and the RREEF Textron B-Note Holder (as a collective whole)
in accordance with any and all applicable laws and the terms of this Agreement,
and the RREEF Textron Mortgage Loans and, to the extent consistent with the
foregoing, in accordance with the Servicing Standard. No provision herein
contained shall be construed as an express or implied guarantee by any Master
Servicer or Special Servicer of the collectability of payments on the Mortgage
Loans or shall be construed to impair or adversely affect any rights or benefits
provided by this Agreement to such Master Servicer or such Special Servicer
(including with respect to Master Servicing Fees or the right to be reimbursed
for Advances). No provision hereof shall be construed to impose liability on any
Master Servicer or Special Servicer for the reason that any recovery to the
Certificateholders (or, in the case of the RREEF Textron Mortgage Loan Pair, to
the Certificateholders and the RREEF Textron B-Note Holder) in respect of a
Mortgage Loan at any time after a determination of present value recovery made
by such Master Servicer or Special Servicer hereunder at any time is less than
the amount reflected in such determination. Without limiting the foregoing, and
subject to Section 3.21, (i) each Master Servicer shall service and administer
all Mortgage Loans for which it is the Master Servicer as to which no Servicing
Transfer Event has occurred and all Corrected Mortgage Loans for which it is the
Master Servicer, and (ii) each Special Servicer shall service and administer (x)
each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a
Servicing Transfer Event has occurred and for which it is the applicable Special
-148-
Servicer, and (y) each REO Property for which it is the applicable Special
Servicer; provided, however, that the applicable Master Servicer shall continue
to (A) make P&I Advances and Servicing Advance required hereunder with respect
to any Specially Serviced Mortgage Loans and REO Properties for which it is the
applicable Master Servicer, (B) collect information and deliver reports to the
Certificate Administrator and the Trustee required hereunder with respect to any
Specially Serviced Mortgage Loans and REO Properties (and the related REO
Mortgage Loans) for which it is the applicable Master Servicer, and (C) render
such incidental services with respect to any Specially Serviced Mortgage Loans
and REO Properties for which it is the applicable Master Servicer as are
specifically provided for herein. In addition, each Master Servicer shall notify
the applicable Special Servicer within three Business Days following its receipt
of any collections on any Specially Serviced Mortgage Loan, the Special Servicer
shall within one Business Day thereafter notify such Master Servicer with
instructions on how to apply such collections and such Master Servicer shall
apply such collections in accordance with such instructions within one Business
Day following such Master Servicer's receipt of such notice.
(b) Subject to Section 3.01(a) and the terms and provisions of this
Agreement, each Master Servicer and each Special Servicer each shall have full
power and authority, acting alone or (subject to Section 3.22) through
Sub-Servicers, to do or cause to be done any and all things in connection with
such servicing and administration which it may deem necessary or desirable.
Without limiting the generality of the foregoing, each Master Servicer (with
respect to those Mortgage Loans that it is obligated to service and administer
pursuant to this Agreement) and each Special Servicer (with respect to those
Specially Serviced Mortgage Loans that it is obligated to service and administer
pursuant to this Agreement), in its own name or in the name of the Trustee, is
hereby authorized and empowered by the Trustee (in the case of each Pooled
Mortgage Loan) or by the Trustee and the RREEF Textron B-Note Holder (in the
case of the RREEF Textron Mortgage Loan Pair) to execute and deliver, on behalf
of the Certificateholders and the Trustee (in the case of each Pooled Mortgage
Loan) or on behalf of the Certificateholders, the Trustee and the RREEF Textron
B-Note Holder (in the case of the RREEF Textron Mortgage Loan Pair) or any of
them: (i) any and all financing statements, continuation statements and other
documents or instruments necessary to maintain the lien created by the Mortgage
or other security document in the related Mortgage File on the related Mortgaged
Property and other related collateral; (ii) any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, or of
partial or full defeasance, and all other comparable instruments; and (iii)
subject to Sections 3.08, 3.20, 3.24, 3.27 and 3.28, any and all assumptions,
modifications, waivers,
-149-
substitutions, extensions, amendments, consents to transfers of interests in
Borrowers, consents to any subordinate financings to be secured by any related
Mortgaged Property, consents to any mezzanine financing to be secured by
ownership interests in a Borrower, consents to and monitoring of the application
of any proceeds of insurance policies or condemnation awards to the restoration
of the related Mortgaged Property or otherwise, documents relating to the
management, operation, maintenance, repair, leasing and marketing of the related
Mortgaged Properties (including agreements and requests by any Borrower with
respect to modifications of the standards of operation and management of the
Mortgaged Properties or the replacement of asset managers), documents exercising
any or all of the rights, powers and privileges granted or provided to the
holder of the Mortgage Loan under the Mortgage Loan Documents, lease
subordination agreements, non-disturbance and attornment agreements or other
leasing or rental arrangements that may be requested by any Borrower or its
tenants, documents granting, modifying or releasing (or joining the Borrower
therein) any easements, covenants, conditions, restrictions, equitable
servitudes, or land use or zoning requirements with respect to the Mortgaged
Properties, instrument relating to the custody of any collateral that now
secures or hereafter may secure the Mortgage Loan and any other consents.
Subject to Section 3.10, the Trustee shall, at the written request of a
Servicing Officer of either Master Servicer or either Special Servicer, furnish,
or cause to be so furnished, to such Master Servicer or such Special Servicer,
as the case may be, any limited powers of attorney and other documents (each of
which shall be prepared by such Master Servicer or such Special Servicer, as the
case may be) necessary or appropriate to enable it to carry out its servicing
and administrative duties hereunder; provided that the Trustee shall not be held
liable for any misuse of any such power of attorney by either Master Servicer or
Special Servicer. Without limiting the generality of the foregoing, the Trustee
shall execute and deliver to each Master Servicer and each Special Servicer, on
or before the Closing Date, a power of attorney substantially in the form
attached as Exhibit K hereto. Notwithstanding anything contained herein to the
contrary, none of the Master Servicers and the Special Servicers shall, without
the Trustee's written consent: (i) initiate any action, suit or proceeding
solely under the Trustee's name without indicating such Master Servicer's or
Special Servicer's, as applicable, representative capacity; or (ii) take any
action with the intent to cause, and that actually causes, the Trustee to be
registered to do business in any state.
(c) The applicable Master Servicer or Special Servicer, as applicable,
in accordance with this Agreement, shall service and administer each
Cross-Collateralized Group as a single Mortgage Loan as and when necessary and
-150-
appropriate consistent with the Servicing Standard and applicable law and in
accordance with this Agreement.
(d) The relationship of each of the Master Servicers and the Special
Servicers to the Trustee and, unless they are the same Person, one another
(whether between a Master Servicer and the other Master Servicer, a Special
Servicer and the other Special Servicer or a Master Servicer and a Special
Servicer) under this Agreement is intended by the parties to be that of an
independent contractor and not that of a joint venturer, partner or, except as
specifically set forth herein, agent.
(e) Notwithstanding any provision of this Agreement to the contrary,
the RREEF Textron Mortgage Loan Pair shall be serviced and administered under
this Agreement only for as long as the RREEF Textron Pooled Mortgage Loan or any
related REO Property constitutes an asset of the Trust Fund.
(f) Nothing contained in this Agreement shall limit the ability of
either Master Servicer to lend money to (to the extent not secured, in whole or
in part, by any Mortgaged Property), accept deposits from and otherwise
generally engage in any kind of business or dealings with any Borrower as though
such Master Servicer was not a party to this Agreement or to the transactions
contemplated hereby; provided, however, that this sentence shall not be
construed to modify the Servicing Standard.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) The applicable Master Servicer and the applicable Special Servicer
shall undertake reasonable efforts to collect all payments required under the
terms and provisions of the Mortgage Loans it is obligated to service hereunder
and shall follow such collection procedures as are consistent with the Servicing
Standard; provided that none of the Master Servicers or the Special Servicers
shall, with respect to any ARD Mortgage Loan after its Anticipated Repayment
Date, take any enforcement action with respect to the payment of Post-ARD
Additional Interest (other than the making of requests for its collection), and
a Special Servicer may do so only if (i) the taking of an enforcement action
with respect to the payment of other amounts due under such Mortgage Loan is, in
the reasonable judgment of the Special Servicer, and without regard to such
Post-ARD Additional Interest, also necessary, appropriate and consistent with
the Servicing Standard or (ii) all other amounts due under such Mortgage Loan
have been paid, the payment of such Post-ARD Additional Interest has not been
forgiven in accordance with Section 3.20 and, in the
-151-
reasonable judgment of the Special Servicer, the Liquidation Proceeds expected
to be recovered in connection with such enforcement action will cover the
anticipated costs of such enforcement action and, if applicable, any associated
Advance Interest. Consistent with the foregoing, the applicable Master Servicer
may grant case-by-case waivers of Default Charges in connection with a late
payment on a Mortgage Loan, provided that, for any waiver thereof under any
Mortgage Loan where both (x) any Advance Interest is then outstanding and (y)
either (1) the waiver would be the fourth (or more) such waiver for such
Mortgage Loan or (2) such Mortgage Loan is 60 days or more delinquent in respect
of any Monthly Payment, the Master Servicer shall have obtained the consent of
the Special Servicer, which shall have, as and to the extent contemplated by
Section 3.24, obtained the consent of the Controlling Class Representative.
(b) At least ninety days prior to the maturity date of each Balloon
Mortgage Loan, the applicable Master Servicer shall send a notice to the related
Borrower of such maturity date (with a copy to be sent to the applicable Special
Servicer) and shall request confirmation that the Balloon Payment will be paid
by such maturity date.
SECTION 3.03. Collection of Taxes, Assessments and Similar
Items; Servicing Accounts; Reserve Accounts.
(a) Each Master Servicer shall establish and maintain one or more
segregated accounts ("Servicing Accounts"), in which all Escrow Payments
received by it with respect to the Mortgage Loans for which it is the applicable
Master Servicer, shall be deposited and retained, separate and apart from its
own funds. Subject to any terms of the related Mortgage Loan Documents that
specify the nature of the account in which Escrow Payments shall be held, each
Servicing Account shall be an Eligible Account. As and to the extent consistent
with the Servicing Standard, applicable law and the related Mortgage Loan
Documents, each Master Servicer may make withdrawals from the Servicing Accounts
maintained by it, and may apply Escrow Payments held therein with respect to any
Mortgage Loan (together with interest earned thereon), only as follows: (i) to
effect the payment of real estate taxes, assessments, insurance premiums
(including, premiums on any Environmental Insurance Policy), ground rents (if
applicable) and comparable items in respect of the related Mortgaged Property;
(ii) to reimburse such Master Servicer, the applicable Special Servicer, the
Trustee or the Fiscal Agent, as applicable, for any unreimbursed Servicing
Advances made thereby with respect to such Mortgage Loan to cover any of the
items described in the immediately preceding clause (i); (iii) to refund to the
related Borrower any sums as may be determined to be overages; (iv) to pay
-152-
interest or other income, if required and as described below, to the related
Borrower on balances in the Servicing Account (or, if and to the extent not
payable to the related Borrower to pay such interest or other income (up to the
amount of any Net Investment Earnings in respect of such Servicing Account for
each Collection Period) to such Master Servicer); (v) disburse Insurance
Proceeds if required to be applied to the repair or restoration of the related
Mortgaged Property, (vi) after an event of default, to pay the principal of,
accrued interest on and any other amounts payable with respect to such Mortgage
Loan; (vii) to withdraw amounts deposited in the Servicing Account in error; or
(viii) to clear and terminate the Servicing Account at the termination of this
Agreement in accordance with Section 9.01. Each Master Servicer shall pay or
cause to be paid to the related Borrowers interest and other income, if any,
earned on the investment of funds in Servicing Accounts maintained thereby, if
and to the extent required by law or the terms of the related Mortgage Loan
Documents. If a Master Servicer shall deposit in a Servicing Account maintained
by it any amount not required to be deposited therein, it may at any time
withdraw such amount from such Servicing Account, any provision herein to the
contrary notwithstanding. Promptly after any Escrow Payments are received by the
Special Servicer from any Borrower, and in any event within two Business Days
after any such receipt, the applicable Special Servicer shall remit such Escrow
Payments to the applicable Master Servicer for deposit in the applicable
Servicing Account(s).
(b) The applicable Master Servicer shall as to each Mortgage Loan
(including each Specially Serviced Mortgage Loan): (i) maintain accurate records
with respect to the related Mortgaged Property reflecting the status of real
estate taxes, assessments and other similar items that are or may become a lien
thereon and the status of insurance premiums and any ground rents payable in
respect thereof and (ii) use reasonable efforts consistent with the Servicing
Standard to obtain, from time to time, all bills for the payment of such items
(including renewal premiums) and effect payment thereof prior to the applicable
penalty or termination date. For purposes of effecting any such payment with
respect to any Mortgage Loan, the applicable Master Servicer shall apply Escrow
Payments as allowed under the terms of the related Mortgage Loan Documents;
provided that if such Mortgage Loan does not require the related Borrower to
escrow for the payment of real estate taxes, assessments, insurance premiums,
ground rents (if applicable) and similar items, the applicable Master Servicer
(or, if such Mortgage Loan becomes a Specially Serviced Mortgage Loan, the
applicable Special Servicer) shall, subject to and in accordance with the
Servicing Standard, use reasonable efforts to enforce the requirement of the
related
-153-
Mortgage that the related Borrower make payments in respect of such items at the
time they first become due.
(c) In accordance with the Servicing Standard, but subject to Section
3.11(h), the applicable Master Servicer, with respect to each Mortgage Loan for
which it is the Master Servicer (including each such Mortgage Loan that is a
Specially Serviced Mortgage Loan) shall make a Servicing Advance with respect to
each Mortgaged Property in an amount equal to all such funds as are necessary
for the purpose of effecting the timely payment of (i) real estate taxes,
assessments and other similar items, (ii) ground rents (if applicable), and
(iii) premiums on Insurance Policies (including, premiums on any Environmental
Insurance Policy), in each instance prior to the applicable penalty or
termination date, in each instance if and to the extent that (x) Escrow Payments
(if any) collected from the related Borrower are insufficient to pay such item
when due, and (y) the related Borrower has failed to pay such item on a timely
basis; provided that, in the case of amounts described in the preceding clause
(i), the applicable Master Servicer shall not make a Servicing Advance of any
such amount if such Master Servicer reasonably anticipates (in accordance with
the Servicing Standard) that such amounts will be paid by the related Borrower
on or before the applicable penalty date, in which case such Master Servicer
shall use its best reasonable efforts consistent with the Servicing Standard to
confirm whether such amounts have been paid and, subject to Section 3.11(h),
shall make a Servicing Advance of such amounts, if necessary, not later than
five Business Days following confirmation by such Master Servicer that such
amounts have not been paid by the applicable penalty date. All such Advances
shall be reimbursable in the first instance from related collections from the
Borrowers and further as provided in Section 3.05(a). No costs incurred by a
Master Servicer in effecting the payment of real estate taxes, assessments and,
if applicable, ground rents on or in respect of such Mortgaged Properties shall,
for purposes hereof, including calculating monthly distributions to
Certificateholders, be added to the respective unpaid principal balances or
Stated Principal Balances of the subject Mortgage Loan, notwithstanding that the
terms of such Mortgage Loan so permit; provided that this sentence shall not be
construed to limit the rights of the applicable Master Servicer or Special
Servicer on behalf of the Trust to enforce any obligations of the related
Borrower under such Mortgage Loan.
(d) Each Master Servicer shall establish and maintain one or more
segregated accounts ("Reserve Accounts"), in which all Reserve Funds, if any,
received by it with respect to the Mortgage Loans as to which it is the
applicable Master Servicer, shall be deposited and retained, separate and apart
from its own funds. Subject to any terms of the related Mortgage Loan Documents
that specify the nature of the account in which Reserve Funds shall be
-154-
held, each Reserve Account shall be an Eligible Account. As and to the extent
consistent with the Servicing Standard, applicable law and the related Mortgage
Loan Documents, each Master Servicer may make withdrawals from the Reserve
Accounts maintained by it, and may apply Reserve Funds held therein with respect
to any Mortgage Loan (together with interest earned thereon), only as follows:
(i) in the case of Reserve Funds that are intended to cover specific costs and
expenses, to pay for, or to reimburse the related Borrower in connection with,
the costs associated with the related tenant improvements, leasing commissions,
repairs, replacements, capital improvements and/or environmental testing and
remediation, litigation and/or other special expenses at or with respect to the
related Mortgaged Property for which such Reserve Funds were intended and to
refund the related Borrower any sums as may be determined to be overages; (ii)
in the case of Reserve Funds intended to cover debt service payments, to apply
amounts on deposit therein in respect of principal and interest on such Mortgage
Loan; (iii) to reimburse such Master Servicer, the Special Servicer, the Trustee
or the Fiscal Agent, as applicable, for any unreimbursed Advances made thereby
with respect to such Mortgage Loan to cover any of the items described in the
immediately preceding clauses (i) and (ii); (iv) to release such Reserve Funds
to the related Borrower if the conditions precedent for such release are
satisfied or otherwise apply such Reserve Funds in accordance with the related
Mortgage Loan Documents if the conditions precedent for such release are not
satisfied; (v) to pay interest or other income, if required and as described
below, to the related Borrower on balances in the Reserve Account (or, if and to
the extent not payable to the related Borrower, to pay such interest or other
income (up to the amount of any Net Investment Earnings in respect of such
Reserve Account for each Collection Period) to such Master Servicer); (vi) to
withdraw amounts deposited in such Reserve Account in error; or (vii) to clear
and terminate the Reserve Account at the termination of this Agreement in
accordance with Section 9.01. If the Borrower under any Mortgage Loan delivers a
Letter of Credit in lieu of Reserve Funds, then the applicable Master Servicer
shall make draws on such Letter of Credit at such times and for such purposes as
it would have made withdrawals from a Reserve Account and, to the extent
consistent with the Servicing Standard, applicable law and the related Mortgage
Loan Documents, in order to convert the amount of such Letter of Credit into
Reserve Funds. Promptly after any Reserve Funds are received by the Special
Servicer from any Borrower, and in any event within one Business Day of such
receipt, the applicable Special Servicer shall remit such Reserve Funds to the
applicable Master Servicer for deposit in the applicable Reserve Account(s). Any
out-of-pocket expenses, including reasonable attorneys' fees and expenses,
incurred by a Master Servicer or Special Servicer to enable such Master Servicer
or such Special Servicer, as the case may be, to make any draw under any Letter
of Credit shall constitute a
-155-
Servicing Advance, and such Master Servicer or such Special Servicer, as the
case may be, shall make reasonable efforts to recover such expenses from the
related Borrower to the extent the Borrower is required to pay such expenses
under the terms of the related Mortgage Loan.
(e) To the extent an operations and maintenance plan is required to be
established and executed pursuant to the terms of a Mortgage Loan, the
applicable Master Servicer shall request from the related Borrower written
confirmation thereof within a reasonable time after the later of the Closing
Date and the date as of which such plan is required to be established or
completed. To the extent any other action or remediation with respect to
environmental matters is required to have been taken or completed pursuant to
the terms of a Mortgage Loan, the applicable Master Servicer shall request from
the related Borrower written confirmation of such action and remediations within
a reasonable time after the later of the Closing Date and the date as of which
such action or remediations are required to have been taken or completed. To the
extent that a Borrower shall fail to promptly respond to any inquiry described
in this Section 3.03(e), the applicable Master Servicer shall notify the
Trustee, the applicable Special Servicer, the Controlling Class Representative
and if affected the RREEF Textron B-Note Holder. The applicable Master Servicer
shall promptly notify the Trustee, the applicable Special Servicer, the
Controlling Class Representative and if affected the RREEF Textron B-Note Holder
if such Master Servicer determines that the Borrower under any Mortgage Loan has
failed to perform its obligations under such Mortgage Loan in respect of
environmental matters.
(f) Subject to applicable law and the terms of the related Mortgage
Loan Documents, funds in the Servicing Accounts and the Reserve Accounts may be
invested only in Permitted Investments in accordance with the provisions of
Section 3.06.
(g) With respect to each Mortgage Loan that requires the related
Borrower to establish and maintain one or more lock-box, cash management or
similar accounts, the applicable Master Servicer shall establish and maintain,
in accordance with the Servicing Standard, such account(s) in accordance with
the terms of the related Mortgage Loan Documents. No such lock-box account is
required to be an Eligible Account, unless the Mortgage Loan Documents otherwise
so require. The applicable Master Servicer shall apply the funds deposited in
such accounts in accordance with terms of the related Mortgage Loan Documents,
any lock-box, cash management or similar agreement and the Servicing Standard.
-156-
SECTION 3.04. Collection Accounts, Distribution Account,
Interest Reserve Account, Excess Liquidation Proceeds
Account and RREEF Textron B-Note Account.
(a) Each of the Master Servicers shall segregate and hold all funds
collected and received by it in connection with the Mortgage Loans for which it
is the applicable Master Servicer separate and apart from its own funds and
general assets. In connection therewith, each Master Servicer shall establish
and maintain one or more segregated accounts (collectively, a "Collection
Account"), in which the funds described below are to be deposited and held on
behalf of the Trustee in trust for the benefit of the Certificateholders. Each
account that constitutes a Collection Account shall be an Eligible Account. Each
Master Servicer shall deposit or cause to be deposited in its Collection
Account, within one Business Day of receipt by it (in the case of payments by
Borrowers or other collections on the Mortgage Loans as to which it acts as
Master Servicer) or as otherwise required hereunder, the following payments and
collections received or made by or on behalf of such Master Servicer subsequent
to the Closing Date with respect to the Pooled Mortgage Loans and any REO
Properties acquired in respect thereof as to which it is the applicable Master
Servicer (other than in respect of scheduled payments of principal and interest
due and payable on such Mortgage Loans on or before their respective Due Dates
in October 2002 (or, in the case of a Replacement Pooled Mortgage Loan, on or
before the related date of substitution), which payments shall be delivered
promptly to the related Pooled Mortgage Loan Seller or its designee, with
negotiable instruments endorsed as necessary and appropriate without recourse):
(i) all payments (from whatever source) on account of principal of such
Pooled Mortgage Loans, including Principal Prepayments;
(ii) all payments (from whatever source) on account of interest on such
Pooled Mortgage Loans, including Default Interest and Post-ARD Additional
Interest;
(iii) all Prepayment Premiums, Yield Maintenance Charges and/or late
payment charges received with respect to such Pooled Mortgage Loans;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received with respect to such Pooled Mortgage Loans and/or,
insofar as such payments and/or proceeds represent amounts
-157-
allocable to reimburse Servicing Advances or pay Liquidation Expenses
and/or other servicing expenses, in respect of the entire RREEF Textron
Mortgage Loan Pair;
(v) any amounts required to be deposited by such Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in such Collection Account;
(vi) any amounts relating to such Pooled Mortgage Loans and/or REO
Properties required to be deposited by such Master Servicer or such Special
Servicer pursuant to Section 3.07(b) in connection with losses resulting
from a deductible clause in a blanket or master force placed hazard
insurance policy;
(vii) any amounts relating to such REO Properties required to be
transferred from any REO Account pursuant to Section 3.16(c); and
(viii) insofar as they do not constitute Escrow Payments or Reserve
Funds, any amounts relating to such Pooled Mortgage Loans paid by a
Borrower specifically to cover items for which a Servicing Advance has been
made or that represent a recovery of property protection expenses from a
Borrower.
Notwithstanding the foregoing requirements, the applicable Master
Servicer need not deposit into its Collection Account any amount that such
Master Servicer would be authorized to withdrawal immediately from such
Collection Account in accordance with the terms of Section 3.05 and shall be
entitled to instead pay such amount directly to the Person(s) entitled thereto).
The foregoing requirements for deposit in a Collection Account shall be
exclusive. Without limiting the generality of the foregoing, actual payments
from Borrowers in the nature of Escrow Payments, assumption fees, assumption
application fees, earn-out fees, extension fees, modification fees, charges for
beneficiary statements or demands, amounts collected for checks returned for
insufficient funds and other fees and amounts collected from Borrowers that
constitute Additional Master Servicing Compensation and/or Additional Special
Servicing Compensation, need not be deposited by either Master Servicer in its
Collection Account. Each Master Servicer shall promptly within one Business Day
deliver to the applicable Special Servicer any of the foregoing items received
by it with respect to any Pooled Mortgage Loan, if and to the extent that such
items constitute Additional Special Servicing
-158-
Compensation payable to the applicable Special Servicer. If either Master
Servicer shall deposit in its Collection Account any amount not required to be
deposited therein, it may at any time withdraw such amount from such Collection
Account, any provision herein to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) of the first paragraph of this Section 3.04(a) with respect to
any Pooled Mortgage Loan, the applicable Special Servicer shall promptly, but in
no event later than one Business Day after receipt, remit such amounts to the
applicable Master Servicer for deposit into such Master Servicer's Collection
Account, unless the Special Servicer determines, consistent with the Servicing
Standard, that a particular item should not be deposited because of a
restrictive endorsement. With respect to any such amounts paid by check to the
order of the applicable Special Servicer, each Special Servicer shall endorse
such check to the order of the applicable Master Servicer (in its capacity as
such), without recourse, representation or warranty, unless each Special
Servicer determines, consistent with the Servicing Standard, that a particular
item cannot be so endorsed and delivered because of a restrictive endorsement.
Any such amounts received by the applicable Special Servicer with respect to an
REO Property shall be deposited by such Special Servicer into its REO Account
and remitted to the applicable Master Servicer for deposit into such Master
Servicer's Collection Account pursuant to Section 3.16(c).
(b) The Certificate Administrator shall establish and maintain one or
more segregated accounts (collectively, the "Distribution Account"), to be held
on behalf and in the name of the Trustee in trust for the benefit of the
Certificateholders. Each account that constitutes the Distribution Account shall
be an Eligible Account. The Certificate Administrator shall, as a bookkeeping
matter, establish and maintain two sub-accounts of the Distribution Account (i)
one of which sub-accounts (such sub-account, the "REMIC Sub-Account") shall be
deemed to be held in trust for the benefit of the Holders of the Regular
Interest Certificates and the Class R Certificates, and (ii) one of which
sub-accounts (such sub-account, the "Class V Sub-Account") shall be deemed to be
held in trust for the benefit of the Holders of the Class V Certificates. Not
later than 1:00 p.m. (New York City time) on each Master Servicer Remittance
Date, each Master Servicer shall deliver to the Certificate Administrator, for
deposit in the Distribution Account, an aggregate amount of immediately
available funds equal to the Master Servicer Remittance Amount with respect to
such Master Servicer for such Master Servicer Remittance Date. Immediately upon
deposit of a Master Servicer Remittance Amount into the Distribution Account,
any portion thereof that represents any Post-ARD Additional Interest related to
the ARD Mortgage Loans shall be deemed to have been deposited into the Class V
Sub-Account, and
-159-
the remaining portion thereof shall be deemed to have been deposited into the
REMIC Sub-Account. In addition, each Master Servicer shall, as and when required
hereunder, deliver to the Certificate Administrator for deposit in the
Distribution Account any P&I Advances and Compensating Interest Payments
required to be made by such Master Servicer hereunder. Furthermore, any amounts
paid by any party hereto to indemnify the Trust Fund pursuant to any provision
hereof shall be delivered to the Certificate Administrator for deposit in the
Distribution Account. The Certificate Administrator shall, upon receipt, deposit
in the Distribution Account any and all amounts received or, pursuant to Section
4.03, advanced by the Trustee or the Fiscal Agent that are required by the terms
of this Agreement to be deposited therein. As and when required pursuant to
Section 3.05(c), the Certificate Administrator shall transfer Interest Reserve
Amounts in respect of the Interest Reserve Loans from the Interest Reserve
Account to the Distribution Account. Furthermore, as and when required pursuant
to Section 3.05(d), the Certificate Administrator shall transfer monies from the
Excess Liquidation Proceeds Account to the Distribution Account. The Certificate
Administrator shall also deposit in the Distribution Account any amounts
required to be deposited by the Certificate Administrator pursuant to Section
3.06 in connection with losses incurred with respect to Permitted Investments of
funds held in the Distribution Account. If the Certificate Administrator shall
deposit in the Distribution Account any amount not required to be deposited
therein, it may at any time withdraw such amount from the Distribution Account,
any provision herein to the contrary notwithstanding.
(c) The Certificate Administrator shall establish and maintain one or
more accounts (collectively, the "Interest Reserve Account") to be held on
behalf and in the name of the Trustee in trust for the benefit of the
Certificateholders. Each account that constitutes the Interest Reserve Account
shall be an Eligible Account. On the Distribution Date in January (except during
a leap year) and February of each calendar year, commencing in 2003, prior to
any distributions being made with respect to the Certificates on such
Distribution Date, the Certificate Administrator shall, with respect to each
Interest Reserve Loan, withdraw from the Distribution Account and deposit in the
Interest Reserve Account an amount equal to the Interest Reserve Amount, if any,
in respect of such Interest Reserve Loan for such Distribution Date; provided
that no such transfer of monies from the Distribution Account to the Interest
Reserve Account shall be made on the Final Distribution Date. The Certificate
Administrator shall also deposit in the Interest Reserve Account any amounts
required to be deposited by the Certificate Administrator pursuant to Section
3.06 in connection with losses incurred with respect to Permitted Investments of
funds held in the Interest Reserve Account.
-160-
(d) If any Excess Liquidation Proceeds are received, the Certificate
Administrator shall establish and maintain one or more accounts (collectively,
the "Excess Liquidation Proceeds Account") to be held on behalf and in the name
of the Trustee in trust for the benefit of the Certificateholders. Each account
that constitutes the Excess Liquidation Proceeds Account shall be an Eligible
Account. On each Master Servicer Remittance Date, each Master Servicer shall
withdraw from its Collection Account and remit to the Certificate Administrator
for deposit in the Excess Liquidation Proceeds Account all Excess Liquidation
Proceeds received during the Collection Period ending on the Determination Date
immediately prior to such Master Servicer Remittance Date. The Certificate
Administrator shall also deposit in the Excess Liquidation Proceeds Account any
amounts required to be deposited by the Certificate Administrator pursuant to
Section 3.06 in connection with losses incurred with respect to Permitted
Investments of funds held in the Excess Liquidation Proceeds Account.
(e) The applicable Master Servicer shall segregate and hold all funds
collected and received by it in connection with the RREEF Textron B-Note
Mortgage Loan separate and apart from its own funds and general assets. In
connection therewith, such Master Servicer shall establish and maintain one or
more segregated accounts (collectively, the "RREEF Textron B-Note Account"), in
which the funds described below are to be deposited and held on behalf of the
RREEF Textron B-Note Holder. Each account that constitutes the RREEF Textron
B-Note Account shall be an Eligible Account. The applicable Master Servicer
shall deposit or cause to be deposited in the RREEF Textron B-Note Account,
within one Business Day of receipt by it (in the case of payments by the related
Borrower or other collections on the RREEF Textron B-Note Mortgage Loan) or as
otherwise required hereunder, the following payments and collections received or
made by or on behalf of such Master Servicer in respect of the RREEF Textron
B-Note Mortgage Loan subsequent to the Closing Date:
(i) all payments (from whatever source) on account of principal of the
RREEF Textron B-Note Mortgage Loan, including Principal Prepayments;
(ii) all payments (from whatever source) on account of interest on the
RREEF Textron B-Note Mortgage Loan, including Default Interest;
(iii) all Prepayment Premiums and Yield Maintenance Charges received in
respect of the RREEF Textron B-Note Mortgage Loan;
-161-
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of, and allocable as interest (including
Default Interest) on, principal of or Prepayment Premiums and Yield
Maintenance Charges with respect to, the RREEF Textron B-Note Mortgage
Loan;
(v) any amounts required to be deposited by the applicable Master
Servicer pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the RREEF Textron B-Note
Account;
(vi) any amounts required to be deposited by the applicable Master
Servicer or the RREEF Textron Special Servicer pursuant to Section 3.07(b)
in connection with losses on the RREEF Textron B-Note Mortgage Loan
resulting from a deductible clause in a blanket or master force placed
hazard insurance policy; and
(vii) any amounts required to be transferred to the RREEF Textron
B-Note Account from any REO Account pursuant to Section 3.16(c).
Notwithstanding the foregoing requirements, the applicable Master
Servicer need not deposit into the RREEF Textron B-Note Account any amount that
such Master Servicer would be authorized to withdrawal immediately from such
Collection Account in accordance with the terms of Section 3.05 and shall be
entitled to instead pay such amount directly to the Person(s) entitled thereto).
The foregoing requirements for deposit in the RREEF Textron B-Note
Account shall be exclusive. Without limiting the generality of the foregoing,
actual payments from the RREEF Textron Borrower in the nature of Escrow
Payments, assumption fees, assumption application fees, earn-out fees, extension
fees, modification fees, charges for beneficiary statements or demands, amounts
collected for checks returned for insufficient funds and other fees and amounts
collected from the Borrower under the RREEF Textron Mortgage Loan Pair that
constitute Additional Master Servicing Compensation and/or Additional Special
Servicing Compensation, need not be deposited by the applicable Master Servicer
in the RREEF Textron B-Note Account. The applicable Master Servicer shall
promptly deliver to the RREEF Textron Special Servicer any of the foregoing
items received by it with respect to the RREEF Textron B-Note Mortgage Loan, if
and to the extent that such items constitute Additional Special Servicing
Compensation with respect to the RREEF Textron B-Note Mortgage Loan. If the
applicable Master Servicer shall deposit in the RREEF Textron B-
-162-
Note Account any amount not required to be deposited therein, it may at any time
withdraw such amount from the RREEF Textron B-Note Account, any provision herein
to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) of the first paragraph of this Section 3.04(e), the RREEF
Textron Special Servicer shall promptly, but in no event later than one Business
Day after receipt, remit such amounts to the applicable Master Servicer for
deposit into the RREEF Textron B-Note Account, unless the RREEF Textron Special
Servicer determines, consistent with the Servicing Standard, that a particular
item should not be deposited because of a restrictive endorsement. With respect
to any such amounts paid by check to the order of the RREEF Textron Special
Servicer, the RREEF Textron Special Servicer shall endorse such check to the
order of the applicable Master Servicer (in its capacity as such), without
recourse, representation or warranty, unless the RREEF Textron Special Servicer
determines, consistent with the Servicing Standard, that a particular item
cannot be so endorsed and delivered because of a restrictive endorsement. Any
such amounts received by the RREEF Textron Special Servicer with respect to an
REO Property relating to the RREEF Textron Mortgage Loan Pair shall be deposited
by the RREEF Textron Special Servicer into its REO Account and remitted to the
applicable Master Servicer for deposit into the RREEF Textron B-Note Account
pursuant to Section 3.16(c).
(f) Funds in a Collection Account, the Distribution Account, the
Interest Reserve Account, the Excess Liquidation Proceeds Account and/or the
RREEF Textron B-Note Account may be invested in Permitted Investments in
accordance with the provisions of Section 3.06. Each Master Servicer shall give
notice to the other parties hereto of the location of its Collection Account as
of the Closing Date and of the new location of its Collection Account prior to
any change thereof. The applicable Master Servicer shall give notice to the
other parties hereto of the location of the RREEF Textron B-Note Account as of
the Closing Date and of the new location of the RREEF Textron B-Note Account
prior to any change thereof. The Distribution Account, Interest Reserve Account
and Excess Liquidation Proceeds Account shall each be established at the
corporate trust headquarters of the Certificate Administrator as of the Closing
Date, and the Certificate Administrator shall give notice to the other parties
hereto of the new location of each of the Distribution Account, Interest Reserve
Account and Excess Liquidation Proceeds Account prior to any change thereof.
-163-
SECTION 3.05. Permitted Withdrawals From the Collection
Accounts, the Distribution Account, the Interest Reserve
Account and the Excess Liquidation Proceeds Account.
(a) Each Master Servicer may, from time to time, make withdrawals from
its Collection Account for any of the following purposes (the order set forth
below not constituting an order of priority for such withdrawals):
(i) to remit to the Certificate Administrator for deposit in the
Distribution Account (A) the Master Servicer Remittance Amount with respect
to such Master Servicer for each Master Servicer Remittance Date and (B)
any amounts that may be applied by such Master Servicer to make P&I
Advances pursuant to Section 4.03(a);
(ii) to reimburse the Fiscal Agent, the Trustee or itself, as
applicable, in that order, for ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances made by such
Person (in each case, with its own funds) with respect to those Pooled
Mortgage Loans as to which such Master Servicer is the applicable Master
Servicer and/or any successor REO Pooled Mortgage Loans in respect thereof,
such Master Servicer's, the Trustee's and the Fiscal Agent's, as the case
may be, respective rights to reimbursement pursuant to this clause (ii)
with respect to any P&I Advance (other than a Nonrecoverable P&I Advance,
which is reimbursable pursuant to clause (vi) below) being limited to
amounts that represent Late Collections of interest and principal received
in respect of the particular Pooled Mortgage Loan or REO Pooled Mortgage
Loan as to which such P&I Advance was made (net of related Master Servicing
Fees);
(iii) to pay itself earned and unpaid Master Servicing Fees with
respect to those Pooled Mortgage Loans as to which it is the applicable
Master Servicer and/or any REO Pooled Mortgage Loans in respect thereof,
such Master Servicer's right to payment pursuant to this clause (iii) with
respect to any such Pooled Mortgage Loan or REO Pooled Mortgage Loan being
limited to amounts that are allocable as interest thereon;
(iv) to pay the applicable Special Servicer (or, if applicable, any
predecessor thereto) earned and unpaid Special Servicing Fees, Workout Fees
and Liquidation Fees to which it is entitled in respect of each Specially
Serviced Mortgage Loan, Corrected Loan and/or REO Mortgage Loan pursuant
to, and from the sources contemplated by, Section 3.11(c),
-164-
but only if and to the extent that such Special Servicing Fees, Workout
Fees and Liquidation Fees relate to Pooled Mortgage Loans and/or related
REO Properties as to which such Master Servicer is the applicable Master
Servicer;
(v) to reimburse the Fiscal Agent, the Trustee, the applicable Special
Servicer or itself, as applicable, in that order, for any unreimbursed
Servicing Advances made thereby (in each case, with its own funds) with
respect to those Pooled Mortgage Loans and related REO Properties as to
which such Master Servicer is the applicable Master Servicer, such Master
Servicer's, the Special Servicer's, the Trustee's and the Fiscal Agent's,
as the case may be, respective rights to reimbursement pursuant to this
clause (v) with respect to any Servicing Advance (other than a
Nonrecoverable Servicing Advance, which is reimbursable pursuant to clause
(vi) below) being limited to (A) payments made by the related Borrower that
are allocable to cover the item in respect of which such Servicing Advance
was made, and (B) Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds and, if applicable, REO Revenues received in respect of the
particular Mortgage Loan or related REO Property as to which such Servicing
Advance was made;
(vi) (A) to reimburse the Fiscal Agent, the Trustee, the applicable
Special Servicer, or itself, as applicable, in that order, out of such
general collections on the Pooled Mortgage Loans and any related REO
Properties as are then on deposit in such Collection Account, for any
unreimbursed Nonrecoverable Advances made thereby with respect to any of
the Pooled Mortgage Loans and/or related REO Properties as to which such
Master Servicer is the applicable Master Servicer and (B) if such Master
Servicer shall have received from the other Master Servicer (which shall
deliver a copy thereof to the Controlling Class Representative) an
Officer's Certificate (1) either (x) setting forth that such other Master
Servicer, the applicable Special Servicer, the Trustee or the Fiscal Agent,
as applicable, is entitled to reimbursement for any Nonrecoverable Advance
made with respect to any of the Mortgage Loans and/or REO Properties as to
which such other Master Servicer is the applicable Master Servicer (and
setting forth the nature and amount of such unreimbursed Nonrecoverable
Advance and the party entitled to reimbursement therefor) or (y) forwarding
a copy of any Officer's Certificate or other information provided by the
Fiscal Agent, the Trustee or the applicable Special Servicer, as the case
may be, that sets forth that such Person is entitled to such reimbursement
(and the nature and amount of such unreimbursed Nonrecoverable Advance and
the party entitled to reimbursement therefor)
-165-
and (2) setting forth that such other Master Servicer does not then have on
deposit in its Collection Account funds sufficient for such reimbursement,
then to reimburse the Fiscal Agent, the Trustee, such Special Servicer or
the other Master Servicer, as applicable, out of such general collections
on the Mortgage Loans and any REO Properties as are then on deposit in the
subject Master Servicer's Collection Account, for such unreimbursed
Nonrecoverable Advance made with respect to any of the Pooled Mortgage
Loans and/or related REO Properties as to which such other Master Servicer
is the applicable Master Servicer;
(vii) to pay the Fiscal Agent, the Trustee, the applicable Special
Servicer or itself, as applicable, in that order, any unpaid Advance
Interest accrued on Advances made by such Person with respect to Pooled
Mortgage Loans and/or REO Properties as to which such Master Servicer is
the applicable Master Servicer, such payment to be made, as and to the
extent contemplated by Section 3.26, out of Default Charges collected on
the Pooled Mortgage Loans or REO Pooled Mortgage Loans as to which the
subject Advance was made;
(viii) to the extent that, during any Collection Period, such Master
Servicer has reimbursed or is reimbursing the Fiscal Agent, the Trustee,
the applicable Special Servicer or itself, as applicable, for any
unreimbursed Advance with respect to any Mortgage Loan or REO Property as
to which such Master Servicer is the applicable Master Servicer (regardless
of whether such reimbursement is pursuant to clause (ii), (v) or (vi) above
or pursuant to Section 3.03(c) or Section 3.03(d)), and insofar as payment
has not already been made out of related Default Charges, and the related
Default Charges then on deposit in such Collection Account and available
therefor are not sufficient to make such payment, pursuant to clause (vii)
above, to pay the Fiscal Agent, the Trustee, the applicable Special
Servicer or itself, as applicable, in that order, first out of the
remaining Liquidation Proceeds, Insurance Proceeds and/or Condemnation
Proceeds, if any, from the Mortgage Loan to which the Advance relates, then
out of such general collections on the Mortgage Loans and any REO
Properties as are then on deposit in such Collection Account, any related
Advance Interest accrued and payable on the portion of such Advance so
reimbursed or being reimbursed;
(ix) to pay (A) any outstanding expenses that were incurred by the
applicable Special Servicer in connection with its inspecting, pursuant to
Section 3.12(a), any Mortgaged Property securing a Pooled Mortgage Loan
that is a Specially Serviced Mortgage Loan or any REO Property
-166-
related to a Pooled Mortgage Loan as to which such Master Servicer is the
applicable Master Servicer or (B) any other outstanding expenses incurred
on behalf of the Trust with respect to any Pooled Mortgage Loan or related
REO Property as to which such Master Servicer is the applicable Master
Servicer (other than Advance Interest that is paid pursuant to clause (vii)
above, and other than Special Servicing Fees, Workout Fees and Liquidation
Fees, which are covered by clause (iv) above) that will likely otherwise
become Additional Trust Fund Expenses, such payment to be made from
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds from the
related Mortgage Loan or REO Mortgage Loan;
(x) to pay itself any items of Additional Master Servicing
Compensation, and to pay the applicable Special Servicer any items of
Additional Special Servicing Compensation, in each case on deposit in such
Collection Account from time to time;
(xi) to pay any unpaid Liquidation Expenses incurred with respect to
any Pooled Mortgage Loan or related REO Property as to which such Master
Servicer is the applicable Master Servicer, such payments to be made,
first, out of Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds and, if applicable, REO Revenues received with respect to such
Pooled Mortgage Loan or related REO Property, as the case may be, and then,
out of such general collections on other Pooled Mortgage Loans and related
REO Properties as are then on deposit in such Collection Account;
(xii) to pay, in accordance with Section 3.11(i), out of such general
collections on the Mortgage Loans and any related REO Properties as are
then on deposit in such Collection Account, servicing expenses related to
the Mortgage Loans and related REO Properties as to which such Master
Servicer is the applicable Master Servicer, which expenses would, if
advanced, constitute Nonrecoverable Servicing Advances;
(xiii) to pay, first out of related Liquidation Proceeds, Insurance
Proceeds and/or Condemnation Proceeds, if any, and then, out of such
general collections on the Pooled Mortgage Loans and any related REO
Properties as are then on deposit in such Collection Account, costs and
expenses incurred by the Trust pursuant to Section 3.09(c) with respect to
any Mortgage Loan or REO Property as to which such Master Servicer is the
applicable Master Servicer (other than the costs of environmental testing,
which are to be covered by, and reimbursable as, a Servicing
-167-
Advance) (provided that payment pursuant to this clause (xiii) with respect
to any cost or expense relating to the RREEF Textron Mortgage Loan Pair or
any related REO Property shall be limited to amounts on deposit in the
applicable Collection Account specifically allocable to such payment in
accordance with Section 3 or Section 4, as applicable, of the RREEF Textron
Co-Lender Agreement);
(xiv) to pay itself, the applicable Special Servicer, the Depositor,
the Certificate Administrator, the Tax Administrator, the Trustee, the
Fiscal Agent, or any of their respective directors, officers, members,
managers, employees and agents, as the case may be, first out of related
Liquidation Proceeds, Insurance Proceeds and/or Condemnation Proceeds, if
any, and then, out of such general collections on the Mortgage Loans and
any REO Properties as are then on deposit in such Collection Account, any
amounts payable to any such Person pursuant to Section 6.03, Section
7.01(b), Section 8.05(b) or Section 8.13, as applicable, but only if and to
the extent that such amounts relate to Mortgage Loans and/or REO Properties
as to which such Master Servicer is the applicable Master Servicer
(provided that payment pursuant to this clause (xiv) with respect to any
cost or expense relating to the RREEF Textron Mortgage Loan Pair or any
related REO Property shall be limited to amounts on deposit in the
applicable Collection Account specifically allocable to such payment in
accordance with Section 3 or Section 4, as applicable, of the RREEF Textron
Co-Lender Agreement);
(xv) to pay, first out of related Liquidation Proceeds, Insurance
Proceeds and/or Condemnation Proceeds, if any, and then, out of such
general collections on the Pooled Mortgage Loans and any related REO
Properties then on deposit in such Collection Account, (A) any reasonable
out-of-pocket cost or expense (including the reasonable fees of tax
accountants and attorneys) incurred by the Trustee pursuant to Section
3.17(a)(iii) in connection with providing advice to the applicable Special
Servicer with respect to any REO Property as to which such Master Servicer
is the applicable Master Servicer, and (B) to the extent not otherwise
advanced by such Master Servicer, any fees and/or expenses payable or
reimbursable, as the case may be, in accordance with Section 3.18(c), to
the applicable Master Servicer or the Trustee or an Independent third party
for confirming, in accordance with such Section 3.18(c), a Fair Value
determination made with respect to any Specially Designated Defaulted
Pooled Mortgage Loan as to which such Master Servicer is the applicable
Master Servicer;
-168-
(xvi) to pay itself, the applicable Special Servicer, the Certificate
Administrator, the Trustee, the Fiscal Agent or the Depositor, as the case
may be, any amount related to the Pooled Mortgage Loans and/or related REO
Properties as to which such Master Servicer is the applicable Master
Servicer, that is specifically required to be paid to such Person at the
expense of the Trust Fund under any provision of this Agreement and to
which reference is not made in any other clause of this Section 3.05(a), it
being acknowledged that this clause (xvi) shall not be construed to modify
any limitation otherwise set forth in this Agreement on the time at which
any Person is entitled to payment or reimbursement of any amount or the
funds from which any such payment or reimbursement is permitted to be made;
(xvii) to pay itself, the applicable Special Servicer, any Pooled
Mortgage Loan Seller, a Controlling Class Certificateholder, the RREEF
Textron B-Note Holder or any other particular Person, as the case may be,
with respect to any Pooled Mortgage Loan as to which such Master Servicer
is the applicable Master Servicer and that was previously purchased or
otherwise removed from the Trust Fund by such Person pursuant to or as
contemplated by this Agreement, all amounts received on such Pooled
Mortgage Loan subsequent to the date of purchase or other removal;
(xviii) to pay to the applicable Pooled Mortgage Loan Seller any
amounts that represent Monthly Payments due on the respective Pooled
Mortgage Loans on or before the Cut-off Date or, in the case of a
Replacement Pooled Mortgage Loan, on or before the date on which such
Replacement Pooled Mortgage Loan was added to the Trust Fund;
(xix) to transfer any Excess Liquidation Proceeds on deposit in such
Collection Account to the Excess Liquidation Proceeds Account in accordance
with Section 3.04(d); and
(xx) to clear and terminate such Collection Account at the termination
of this Agreement pursuant to Section 9.01.
In addition but subject to the two succeeding paragraphs, if at any
time a Master Servicer is entitled to make a payment, reimbursement or
remittance from its Collection Account, the payment, reimbursement or remittance
can be made from any funds on deposit in such Collection Account and the amounts
on deposit in such Collection Account (after withdrawing any portion of such
amounts deposited in such Collection Account in error) are
-169-
insufficient to satisfy such payment, reimbursement or remittance and the amount
on deposit in the other Master Servicer's Collection Account (after withdrawing
any portion of such amounts deposited in such Collection Account in error) is
sufficient to make such payment, reimbursement or remittance, then such other
Master Servicer shall withdraw funds from its Collection Account and make such
payment, reimbursement or remittance within three (3) Business Days following a
written request therefrom from the first Master Servicer, which request is
accompanied by an Officer's Certificate (1) either (x) setting forth that such
other Master Servicer, the applicable Special Servicer, the Trustee, the Fiscal
Agent, the Certificate Administrator or another particular Person, as
applicable, is entitled to such payment, reimbursement or remittance (and
setting forth the nature and amount of such payment, reimbursement or remittance
and the party entitled thereto) or (y) forwarding a copy of any Officer's
Certificate or other information provided by the applicable Special Servicer,
the Trustee, the Fiscal Agent, the Certificate Administrator or another
particular Person, as the case may be, that sets forth that such Person is
entitled to such payment, reimbursement or remittance (and the nature and amount
of such payment, reimbursement or remittance and the party entitled thereto) and
(2) setting forth that such other Master Servicer does not then have on deposit
in its Collection Account funds sufficient for such reimbursement.
If amounts on deposit in either Collection Account at any particular
time (after withdrawing any portion of such amounts deposited in such Collection
Account in error) are insufficient to satisfy all payments, reimbursements and
remittances to be made therefrom as set forth in clauses (ii) through (xvii) of
the second preceding paragraph above, then the corresponding withdrawals from
such Collection Account shall be made in the following priority and subject to
the following rules: (x) if the payment, reimbursement or remittance is to be
made from a specific source of funds, then such payment, reimbursement or
remittance shall be made from that specific source of funds on a pro rata basis
with any and all other payments, reimbursements and remittances to be made from
such specific source of funds; and (y) if the payment, reimbursement or
remittance can be made from any funds on deposit in such Collection Account,
then (following any withdrawals made from such Collection Account in accordance
with the immediately preceding clause (x) above) such payment, reimbursement or
remittance shall be made from the general funds remaining on deposit in such
Collection Account on a pro rata basis with any and all other payments,
reimbursements or remittances to be made from such general funds; provided that
any reimbursements of Advances in respect of any particular Mortgage Loan or REO
Property out of a Collection Account pursuant to any of clauses (ii), (v) and
(vi) above, and any payments of interest thereon out of a
-170-
Collection Account pursuant to either of clauses (vii) and (viii) above, shall
be made (to the extent of their respective entitlements to such reimbursements
and/or payments): first, to the Fiscal Agent; second, to the Trustee; and third,
pro rata, to the applicable Master Servicer and the applicable Special Servicer.
Each Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, in
connection with any withdrawal from its Collection Account pursuant to any of
clauses (ii) through (xviii) above.
Each Master Servicer shall pay to the applicable Special Servicer from
such Master Servicer's Collection Account on each Master Servicer Remittance
Date amounts permitted to be paid to the applicable Special Servicer therefrom
based upon an Officer's Certificate received from such Special Servicer on the
first Business Day following the immediately preceding Determination Date,
describing the item and amount to which such Special Servicer is entitled. Each
Master Servicer may rely conclusively on any such certificate and shall have no
duty to re-calculate the amounts stated therein. Each Special Servicer shall
keep and maintain separate accounting for each Specially Serviced Mortgage Loan
and REO Property as to which it is the applicable Special Servicer, on a
loan-by-loan and property-by-property basis, for the purpose of justifying any
request thereby for withdrawal from a Collection Account.
(b) The Certificate Administrator shall, from time to time, make
withdrawals from the Distribution Account for each of the following purposes
(the order set forth below not constituting an order of priority for such
withdrawals):
(i) to make distributions to Certificateholders on each Distribution
Date pursuant to Section 4.01;
(ii) to transfer Interest Reserve Amounts in respect of the Interest
Reserve Loans to the Interest Reserve Account as and when required by
Section 3.04(c);
(iii) to pay itself, either Master Servicer, the Special Servicer, the
Depositor, the Trustee, the Fiscal Agent or any of their respective
directors, officers, members, managers, employees and agents, as the case
may be, any amounts payable to any such Person pursuant to Section 6.03,
Section 7.01(b), Section 8.05 or Section 8.13, as applicable, if and to the
extent such amounts are not payable out of a Collection Account pursuant to
Section 3.05;
-171-
(iv) to pay any and all federal, state and local taxes imposed on any
REMIC Pool or on the assets or transactions of any REMIC Pool, together
with all incidental costs and expenses, and any and all expenses relating
to tax audits, if and to the extent that either (A) none of the parties
hereto are liable therefor pursuant to Section 10.01(b) and/or Section
10.01(f) or (B) any such Person that may be so liable has failed to timely
make the required payment;
(v) to pay for the cost of the Opinions of Counsel sought by the
Trustee as contemplated by Section 11.01(a) or Section 11.01(c) in
connection with any amendment to this Agreement requested by the Trustee
which amendment is in furtherance of the rights and interests of
Certificateholders;
(vi) to pay for the cost of recording this Agreement pursuant to
Section 11.02(a); and
(vii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) On the Master Servicer Remittance Date in March of each year
(commencing in March 2003), and in any event on the Master Servicer Remittance
Date that occurs in the same calendar month as the Final Distribution Date, the
Certificate Administrator shall withdraw from the Interest Reserve Account and
deposit in the Distribution Account all Interest Reserve Amounts in respect of
the Interest Reserve Loans then on deposit in the Interest Reserve Account. In
addition, the Certificate Administrator shall, from time to time, make
withdrawals from the Interest Reserve Account to pay itself interest or other
income earned on deposits in the Interest Reserve Account, in accordance with
Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to the Interest Reserve Account for each Collection Period).
(d) On the Business Day prior to each Distribution Date, the
Certificate Administrator shall withdraw from the Excess Liquidation Proceeds
Account and deposit in the Distribution Account, for distribution on such
Distribution Date, an amount equal to the lesser of (i) the entire amount, if
any, then on deposit in the Excess Liquidation Proceeds Account and (ii) the
excess, if any, of the aggregate amount distributable on such Distribution Date
pursuant to Sections 4.01(a) and 4.01(b), over the Available Distribution Amount
for such Distribution Date (calculated without regard to such transfer from the
Excess Liquidation Proceeds Account to the Distribution Account); provided that
on the Business Day prior to the Final Distribution Date, the Certificate
Administrator
-172-
shall withdraw from the Excess Liquidation Proceeds Account and deposit in the
Distribution Account, for distribution on such Distribution Date, any and all
amounts then on deposit in the Excess Liquidation Proceeds Account. In addition,
the Certificate Administrator shall, from time to time, make withdrawals from
the Excess Liquidation Proceeds Account to pay itself interest or other income
earned on deposits in the Excess Liquidation Proceeds Account, in accordance
with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if
any, with respect to the Excess Liquidation Proceeds Account for each Collection
Period).
(e) The Certificate Administrator, the Trustee, the Fiscal Agent, the
Depositor, each Master Servicer and the Special Servicer, as applicable, shall
in all cases have a right prior to the Certificateholders to any particular
funds on deposit in the Collection Accounts and the Distribution Account from
time to time for the reimbursement or payment of compensation, Advances (with
interest thereon at the Reimbursement Rate) and their respective expenses
hereunder, but only if and to the extent such compensation, Advances (with
interest) and expenses are to be reimbursed or paid from such particular funds
on deposit in such Collection Account or the Distribution Account pursuant to
the express terms of this Agreement.
(f) The applicable Master Servicer may, from time to time, make
withdrawals from the RREEF Textron B-Note Account for any of the following
purposes (the order set forth below not constituting an order of priority for
such withdrawals):
(i) to remit to the RREEF Textron B-Note Holder the amounts to which
the RREEF Textron B-Note Holder is entitled in accordance with the last
paragraph of this Section 3.05(f) on the next Business Day following the
deposit of such amounts into the RREEF Textron B-Note Account;
(ii) to pay to itself earned and unpaid Master Servicing Fees in
respect of the RREEF Textron B-Note Mortgage Loan or any successor REO
Mortgage Loan;
(iii) to pay to the RREEF Textron Special Servicer earned and unpaid
Special Servicing Fees in respect of the RREEF Textron Mortgage Loan Pair
or any successor REO Mortgage Loans;
(iv) to pay the RREEF Textron Special Servicer (or, if applicable, any
predecessor thereto) earned and unpaid Workout Fees and
-173-
Liquidation Fees to which it is entitled with respect to the RREEF Textron
B-Note Mortgage Loan or any successor REO Mortgage Loan pursuant to, and
from the sources contemplated by, the second and third paragraphs of
Section 3.11(c);
(v) to pay the RREEF Textron Special Servicer (or, if applicable, any
predecessor thereto) any earned and unpaid Workout Fees and Liquidation
Fees to which it is entitled with respect to the RREEF Textron Pooled
Mortgage Loan or any successor REO Mortgage Loan, but which is payable out
of amounts collected on or with respect to the RREEF Textron B-Note
Mortgage Loan or any successor REO Mortgage Loan, pursuant to the second
and third paragraphs of Section 3.11(c);
(vi) to reimburse itself, the RREEF Textron Special Servicer, the
Trustee or the Fiscal Agent, as applicable, for any unreimbursed Servicing
Advances made thereby (in each case, with its own funds) with respect to
the RREEF Textron Mortgage Loan Pair or any related REO Property (but only
to the extent that amounts specifically allocable to such purpose have not
been deposited in the applicable Collection Account);
(vii) to pay itself, the RREEF Textron Special Servicer, the Trustee or
the Fiscal Agent, as applicable, any Advance Interest then due and owing to
such Person with respect to any Servicing Advance made by such Person (out
of its own funds) with respect to the RREEF Textron Mortgage Loan Pair or
any related REO Property;
(viii) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the RREEF Textron Special Servicer any items of
Additional Special Servicing Compensation, in each case on deposit in the
RREEF Textron B-Note Account from time to time;
(ix) to pay any unpaid Liquidation Expenses incurred with respect to
the RREEF Textron Mortgage Loan Pair or any related REO Property (but only
to the extent that amounts specifically allocable to such purpose have not
been deposited in the applicable Collection Account);
(x) to pay, in accordance with Section 3.11(i), certain servicing
expenses with respect to the RREEF Textron Mortgage Loan Pair or any
related REO Property, which expenses would, if advanced, constitute
Nonrecoverable Servicing Advances (but only to the extent that amounts
specifically allocable to such purpose have not been deposited in the
applicable Collection Account);
-174-
(xi) to pay any costs and expenses incurred pursuant to Section 3.09(c)
(other than the costs of environmental testing, which are to be covered by,
and reimbursable as, a Servicing Advance) with respect to the RREEF Textron
Mortgage Loan Pair or any related REO Property (but only to the extent that
amounts specifically allocable to such purpose have not been deposited in
the applicable Collection Account);
(xii) to pay itself, either Special Servicer, the Depositor, the
Trustee, the Fiscal Agent, or any of their respective directors, officers,
members, managers, employees and agents, as the case may be, any amounts
payable to any such Person pursuant to Section 6.03, Section 7.01(b),
Section 8.05(b), or Section 8.13, as applicable, in connection with the
RREEF Textron Mortgage Loan Pair or any related REO Property (but only to
the extent that amounts specifically allocable to such purpose have not
been deposited in the applicable Collection Account);
(xiii) to pay to the Master Servicer, the RREEF Textron Special
Servicer, the Trustee, the Fiscal Agent or the Depositor, as the case may
be, any amount specifically required to be paid to such Person at the
expense of the RREEF Textron B-Note Holder under any provision of this
Agreement to which reference is not made in any other clause of this
Section 3.05(f), it being acknowledged that this clause (xiii) shall not be
construed to modify any limitation otherwise set forth in this Agreement on
the time at which any Person is entitled to payment or reimbursement of any
amount or the funds from which any such payment or reimbursement is
permitted to be made;
(xiv) to clear and terminate the RREEF Textron B-Note Account at the
termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in the RREEF Textron B-Note Account at any
particular time (after withdrawing any portion of such amounts deposited in the
RREEF Textron B-Note Account in error) are insufficient to satisfy all payments,
reimbursements and remittances to be made therefrom as set forth in clauses (ii)
through (xiii) above, then, subject to the provisions of the REEF Co-Lender
Agreement, any such payment, reimbursement or remittance shall be made from the
funds on deposit in the RREEF Textron B-Note Account on a pro rata basis with
any and all other payments, reimbursements or remittances to be made from such
funds; provided that any reimbursements of Servicing Advances out of the RREEF
Textron B-Note Account, and any payments of interest thereon out of the RREEF
Textron B-Note Account, shall be made (to the extent of their respective
entitlements to such reimbursements and/or payments): first, to the
-175-
Fiscal Agent; second, to the Trustee; and third, pro rata, to the applicable
Master Servicer and RREEF Textron Special Servicer.
The applicable Master Servicer shall pay to the RREEF Textron Special
Servicer from the RREEF Textron B-Note Account amounts permitted to be paid to
it therefrom promptly upon receipt of a certificate of a Servicing Officer of
such Special Servicer describing the item and amount to which such Special
Servicer is entitled. The applicable Master Servicer may rely conclusively on
any such certificate and shall have no duty to re-calculate the amounts stated
therein.
The Trustee, the Fiscal Agent, the Depositor, the Master Servicer and
the Special Servicers shall in all cases have a right prior to the RREEF Textron
B-Note Holder to any particular funds on deposit in the RREEF Textron B-Note
Account from time to time for the reimbursement or payment of compensation,
Servicing Advances (with interest thereon at the Reimbursement Rate) and their
respective expenses hereunder, but only if and to the extent such compensation,
Servicing Advances (with interest) and expenses are to be reimbursed or paid
from such funds on deposit in the RREEF Textron B-Note Account pursuant to the
express terms of this Agreement.
The applicable Master Servicer shall withdraw from the RREEF Textron
B-Note Account and pay to the RREEF Textron B-Note Holder (in accordance with
the RREEF Textron B-Note Holder's written instructions) all amounts received on
or with respect to the RREEF Textron B-Note Mortgage Loan or any successor REO
Mortgage Loan that are deposited into the RREEF Textron B-Note Account
(exclusive of any portion of those amounts which the applicable Master Servicer
has actual knowledge are then payable or reimbursable to any Person pursuant to
any of clauses (ii) through (xiii) of the first paragraph of this Section
3.05(f)) on the next Business Day following the deposit thereof into the RREEF
Textron B-Note Account, to the extent such amounts represent collections of
Monthly Payments received from the Borrower in the absence of a Borrower default
and, otherwise, on the Master Servicer Remittance Date immediately following the
Collection Period in which such amounts were deposited into the RREEF Textron
B-Note Account.
SECTION 3.06. Investment of Funds in the Accounts.
(a) Each Master Servicer may direct (pursuant to a standing order or
otherwise) any depositary institution (including the Certificate Administrator)
maintaining its Collection Account, the RREEF Textron B-Note Account (if
applicable to such Master Servicer) and any Servicing Account or
-176-
Reserve Account maintained by it, and the applicable Special Servicer may direct
(pursuant to a standing order or otherwise) any depositary institution
(including the Certificate Administrator) maintaining its REO Account, to
invest, or if any of the Master Servicers, the Special Servicers or the Trustee
is such depositary institution, such Master Servicer or such Special Servicer
may invest itself, the funds held therein in (but only in) one or more Permitted
Investments bearing interest or sold at a discount, and maturing, unless payable
on demand, no later than the Business Day immediately preceding the next
succeeding date on which such funds are required to be withdrawn from such
Account pursuant to this Agreement or the related Mortgage Loan Documents, as
applicable, or with respect to Permitted Investments of funds held in the
Distribution Account, no later than 12:00 p.m. on the next succeeding
Distribution Date; provided that any such investment of funds in any Servicing
Account or Reserve Account shall be subject to applicable law and the terms of
the related Mortgage Loan Documents; and provided, further, that the funds in
any Account shall remain uninvested unless and until the applicable Master
Servicer or the applicable Special Servicer, as appropriate, gives timely
investment instructions with respect thereto pursuant to or as contemplated by
this Section 3.06. All such Permitted Investments shall be held to maturity,
unless payable on demand. Any investment of funds in an Account shall be made in
the name of the Trustee (in its capacity as such). Each Master Servicer (with
respect to Permitted Investments of amounts in its Collection Account, the RREEF
Textron B-Note Account (if applicable to such Master Servicer) or any Servicing
Account or Reserve Account maintained by it), and the applicable Special
Servicer (with respect to Permitted Investments of amounts in its REO Account),
acting on behalf of the Trustee, shall (and Trustee hereby designates the
applicable Master Servicer or Special Servicer, as the case may be, as the
Person that shall) (i) be the "entitlement holder" of any Permitted Investment
that is a "security entitlement" and (ii) maintain "control" of any Permitted
Investment that is either a "certificated security" or an "uncertificated
security". For purposes of this Section 3.06(a), the terms "entitlement holder",
"security entitlement", "control", "certificated security" and "uncertificated
security" shall have the meanings given such terms in Revised Article 8 (1994
Revision) of the UCC, and "control" of any Permitted Investment by a Master
Servicer or a Special Servicer shall constitute "control" by a Person designated
by, and acting on behalf of, the Trustee for purposes of Revised Article 8 (1994
Revision) of the UCC. If amounts on deposit in an Account are at any time
invested in a Permitted Investment payable on demand, the party hereunder that
maintains such Account (whether it is a Master Servicer or a Special Servicer),
shall:
-177-
(x) consistent with any notice required to be given thereunder, demand
that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount at least
equal to the lesser of (1) all amounts then payable thereunder and
(2) the amount required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by such Master Servicer or such Special Servicer, as
the case may be, that such Permitted Investment would not
constitute a Permitted Investment in respect of funds thereafter
on deposit in such Account.
(b) Whether or not a Master Servicer directs the investment of funds in
its Collection Account or (if applicable) the RREEF Textron B-Note Account,
interest and investment income realized on funds deposited therein, to the
extent of the Net Investment Earnings, if any, for such Account for each
Collection Period, shall be for the sole and exclusive benefit of such Master
Servicer and shall be subject to its withdrawal in accordance with Section
3.05(a). Whether or not a Master Servicer directs the investment of funds in any
Servicing Account or Reserve Account maintained by it, interest and investment
income realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for such Account for each Collection Period, and subject to
the requirements of applicable law or the terms of the related Mortgage Loan
regarding the payment of such interest and investment income to the related
Borrower, shall be for the sole and exclusive benefit of such Master Servicer
and shall be subject to withdrawal from time to time in accordance with Section
3.03. Whether or not a Special Servicer directs the investment of funds in its
REO Account, interest and investment income realized on funds deposited therein,
to the extent of the Net Investment Earnings, if any, for such Investment
Account for each Collection Period, shall be for the sole and exclusive benefit
of such Special Servicer and shall be subject to its withdrawal in accordance
with Section 3.16(b). If any loss shall be incurred in respect of any Permitted
Investment on deposit in any Account, the party hereunder that maintains such
Account (whether it is a Master Servicer or a Special Servicer), shall promptly
deposit therein from its own funds, without right of reimbursement, no later
than the end of the Collection Period during which such loss was incurred, the
amount of the Net Investment Loss, if any, in respect of such Account for such
Collection Period, except (in the case of any such loss with respect to a
Servicing Account or Reserve Account) to the extent the loss amounts were
invested for the benefit of a Borrower under the terms of a Mortgage Loan or
applicable law.
-178-
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of any payment due (or in any other performance
required) under any Permitted Investment of funds on deposit in any Investment
Account, and if a Master Servicer or Special Servicer, as the case may be, that
maintains such Investment Account is in default of its obligations under or
contemplated by Section 3.06(b), the Trustee may (and, subject to Section 8.02,
upon the request of (i) Holders of Certificates entitled to not less than 25% of
the Voting Rights allocated to any Class of Regular Interest Certificates or
(ii) the Controlling Class Representative, the Trustee shall) take such action
as may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate legal proceedings. Any costs incurred
by the Trustee in taking any such action shall be reimbursed to it by the Master
Servicer or Special Servicer, as the case may be, that maintains such Account.
This provision is in no way intended to limit any actions that a Master Servicer
or Special Servicer may take in this regard at its own expense.
(d) Amounts on deposit in the Distribution Account, the Interest
Reserve Account and the Excess Liquidation Proceeds Account may be invested at
the direction of the Certificate Administrator, for its benefit, in Permitted
Investments.
(e) Notwithstanding the investment of funds held in any Account, for
purposes of the calculations hereunder, including the calculation of the
Available Distribution Amount, the Master Servicer Remittance Amounts and the
monthly amount payable to the RREEF Textron B-Note Holder, the amounts so
invested shall be deemed to remain on deposit in such Account.
SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.
(a) In the case of each Mortgage Loan (but excluding each Specially
Serviced Mortgage Loan and any REO Mortgage Loan), the applicable Master
Servicer shall use reasonable efforts consistent with the Servicing Standard to
cause the related Borrower to maintain (including identifying the extent to
which a Borrower is maintaining insurance coverage and, if such Borrower does
not so maintain, such Master Servicer will itself cause to be maintained with
Qualified Insurers having the Required Claims-Paying Ratings) for the related
Mortgaged Property (x) a fire and casualty extended coverage insurance policy,
which does not provide for reduction due to depreciation, in an amount that is
at least equal to the lesser of (i) the full replacement cost of improvements
securing such Mortgage Loan or (ii) the outstanding principal balance of such
Mortgage Loan, but, in any event, in an amount sufficient to
-179-
avoid the application of any co-insurance clause and (y) all other insurance
coverage (including but not limited to coverage for acts of terrorism) as is
required or that the lender is entitled to reasonably require, subject to
applicable law, under the related Mortgage Loan Documents; provided that all of
the following limitations shall apply:
(A) the applicable Master Servicer shall not be required to
maintain any earthquake or environmental insurance policy on any Mortgaged
Property unless such insurance policy was in effect at the time of the
origination of the related Mortgage Loan and is available at commercially
reasonable rates (and if the applicable Master Servicer does not cause the
Borrower to maintain or does not itself maintain such earthquake or
environmental insurance policy on any Mortgaged Property, the applicable
Special Servicer shall have the right, but not the duty, to obtain, at the
Trust's expense, earthquake or environmental 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);
(B) if and to the extent that any Mortgage Loan grants the lender
thereunder any discretion (by way of consent, approval or otherwise) as to
the insurance provider from whom the related Borrower is to obtain the
requisite insurance coverage, the applicable Master Servicer shall (to the
extent consistent with the Servicing Standard) require the related Borrower
to obtain the requisite insurance coverage from Qualified Insurers that, in
each case, have the Required Claims-Paying Ratings at the time such
insurance coverage is obtained;
(C) the applicable Master Servicer shall have no obligation beyond
using its reasonable efforts consistent with the Servicing Standard to
cause any Borrower to maintain the insurance required to be maintained or
that the lender is entitled to reasonably require, subject to applicable
law, under the related Mortgage Loan Documents;
(D) except as provided in clause (G) below, in no event shall the
applicable Master Servicer be required to cause the Borrower to maintain,
or itself obtain, insurance coverage that the applicable Master Servicer
has determined is either (i) not available at any rate or (ii) not
available at commercially reasonable rates and the related hazards are not
at the time commonly insured against for properties similar to the related
mortgaged property and located in or around the region in which the
-180-
related Mortgaged Property is located (in each case, as determined by the
applicable Master Servicer, which shall be entitled to rely, at its own
expense, on insurance consultants in making such determination) (and
provided that any such determinations by the applicable Master Servicer
must be made not less frequently (but need not be made more frequently)
than annually but in any event shall be made at the approximate date on
which the applicable Master Servicer receives notice of the renewal,
replacement or cancellation of coverage);
(E) the reasonable efforts of the applicable Master Servicer to
cause a Borrower to maintain insurance shall be conducted in a manner that
takes into account the insurance that would then be available to the
applicable Master Servicer on a force-placed basis;
(F) to the extent the applicable Master Servicer itself is
required to maintain insurance that the Borrower does not maintain, the
applicable Master Servicer shall not be required to maintain insurance
other than what is available to such Master Servicer on a force-placed
basis (and this will not be construed to modify the other limits set forth
in clause (D) above); and
(G) with respect to any Mortgage Loan whose principal balance (or
with respect to a Cross-Collateralized Mortgage Loan or a Mortgage Loan
secured by multiple properties, whose allocated loan balance) exceeds
$20,000,000, any explicit terrorism insurance requirements contained in the
related Mortgage Loan Documents shall be enforced by the applicable Master
Servicer in accordance with the Servicing Standard, unless the applicable
Special Servicer has consented to a waiver (including a waiver to permit
the applicable Master Servicer to accept insurance that does not comply
with specific requirements contained in the Mortgage Loan Documents) in
writing of that provision in accordance with the Servicing Standard.
Notwithstanding the limitation set forth in clause (D) above, the
applicable Master Servicer shall, prior to availing itself of any limitation
described in that clause with respect to any Mortgage Loan that has a Stated
Principal Balance in excess of $2,500,000, obtain the approval or disapproval of
the applicable Special Servicer (and, in connection therewith, the applicable
Special Servicer shall be required to comply with any applicable provisions of
Section 3.24, Section 3.27 or Section 3.28). The applicable Master Servicer
shall be entitled to rely on the determination of the applicable Special
Servicer made in connection with such approval or disapproval. The applicable
Special Servicer
-181-
shall decide whether to withhold or grant such approval in accordance with the
Servicing Standard. If any such approval has not been expressly denied within 7
Business Days of the applicable Special Servicer's receipt from the applicable
Master Servicer of such Master Servicer's determination and analysis and all
information reasonably requested thereby and reasonably available to the
applicable Master Servicer in order to make an informed decision, such approval
shall be deemed to have been granted.
The applicable Master Servicer shall notify the applicable Special
Servicer, the Trustee and the Controlling Class Representative if the applicable
Master Servicer determines that a Borrower has failed to maintain insurance
required under (or that such Master Servicer has required pursuant to a
provision that entitles the lender to reasonably require insurance under) the
Mortgage Loan Documents and such failure materially and adversely affects the
Mortgage Loan and/or the interest of the Trust in the related Mortgaged Property
or if the Borrower has notified the applicable Master Servicer in writing that
the Borrower does not intend to maintain such insurance and the applicable
Master Servicer has determined that such failure materially and adversely
affects the Mortgage Loan and/or the interest of the Trust in the related
Mortgaged Property.
Subject to Section 3.17(b), with respect to each Specially Serviced
Mortgage Loan and REO Property, the applicable Special Servicer shall use
reasonable efforts, consistent with the Servicing Standard, to maintain (and, in
the case of Specially Serviced Mortgage Loans, the applicable Special Servicer
shall itself maintain, subject to the right of the applicable Special Servicer
to (x) direct the applicable Master Servicer to make a Servicing Advance for the
costs associated with coverage that the applicable Special Servicer determines
to maintain, in which case the applicable Master Servicer shall make such
Servicing Advance (subject to Section 3.19(b)), or (y) direct the applicable
Master Servicer to cause such coverage to be maintained under the applicable
Master Servicer's force-place insurance policy, in which case the applicable
Master Servicer shall so cause such coverage to be maintained thereunder to the
extent that the identified coverage is available under the applicable Master
Servicer's existing force-place policy) with Qualified Insurers having the
Required Claims-Paying Ratings (a) a fire and casualty extended coverage
insurance policy, which does not provide for reduction due to depreciation, in
an amount that is at least equal to the lesser of (i) the full replacement cost
of improvements securing such Mortgage Loan or at such REO Property or (ii) the
outstanding principal balance of the related REO Mortgage Loan, but, in any
event, in an amount sufficient to avoid the application of any co-insurance
clause, (b) a comprehensive general liability insurance policy with coverage
comparable to that which would be required under prudent lending requirements
and in an amount not less than $1 million per occurrence and (c) to
-182-
the extent consistent with the Servicing Standard, a business interruption or
rental loss insurance covering revenues or rents for a period of at least twelve
months; provided, however, that the applicable Special Servicer shall not be
required in any event to maintain or obtain the insurance coverage otherwise
described by this paragraph beyond what is reasonably available at a cost
customarily acceptable and consistent with the Servicing Standard.
All such insurance policies maintained as described above shall contain
(if they insure against loss to property) a "standard" mortgagee clause, with
loss payable to the applicable Master Servicer on behalf of the Trustee (in the
case of insurance maintained in respect of a Mortgage Loan), or shall name the
Trustee as the insured, with loss payable to the applicable Special Servicer on
behalf of the Trustee (in the case of insurance maintained in respect of an REO
Property). Any amounts collected by a Master Servicer or Special Servicer under
any such policies (other than amounts to be applied to the restoration or repair
of the related Mortgaged Property or REO Property or amounts to be released to
the related Borrower, in each case in accordance with the Servicing Standard)
shall be deposited in the Collection Account of the applicable Master Servicer,
subject to withdrawal pursuant to Section 3.05(a), or the RREEF Textron B-Note
Account, subject to withdrawal pursuant to Section 3.05(f), in the case of
amounts received in respect of a Mortgage Loan, or in the REO Account of the
applicable Special Servicer, subject to withdrawal pursuant to Section 3.16(c),
in the case of amounts received in respect of an REO Property. Any cost incurred
by a Master Servicer or Special Servicer in maintaining any such insurance shall
not, for purposes hereof, including calculating monthly distributions to
Certificateholders, be added to unpaid principal balance or Stated Principal
Balance of the related Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so permit; provided, however, that this sentence shall not limit
the rights of a Master Servicer on behalf of the Trust to enforce any
obligations of the related Borrower under such Mortgage Loan. Costs to a Master
Servicer or Special Servicer of maintaining insurance policies pursuant to this
Section 3.07 shall be paid by and reimbursable to such Master Servicer or such
Special Servicer, as the case may be, as a Servicing Advance.
(b) If (x) a Master Servicer or Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy or master
force-placed policy insuring against hazard losses on all of the Mortgage Loans
or REO Properties, as applicable, as to which it is the applicable Master
Servicer or the applicable Special Servicer, as the case may be, then, to the
extent such policy (i) is obtained from a Qualified Insurer having the Required
Claims-Paying Ratings, and (ii) provides protection equivalent to the individual
policies otherwise required or (y) a Master Servicer or Special Servicer has
long-term
-183-
unsecured debt obligations that are rated not lower than "A2" by ▇▇▇▇▇'▇ and "A"
by Fitch and such Master Servicer or such Special Servicer self-insures for its
obligation to maintain the individual policies otherwise required, such Master
Servicer or such Special Servicer, as the case may be, shall conclusively be
deemed to have satisfied its obligation to cause hazard insurance to be
maintained on the related Mortgaged Properties or REO Properties, as applicable.
Such a blanket or master force-placed policy may contain a deductible clause
(not in excess of a customary amount), in which case the applicable Master
Servicer or applicable Special Servicer, as the case may be, that maintains such
policy shall, if there shall not have been maintained on any Mortgaged Property
or REO Property thereunder a hazard insurance policy complying with the
requirements of Section 3.07(a), and there shall have been one or more losses
that would have been covered by such an individual policy, promptly deposit into
the applicable Collection Account (or, to the extent the loss affects the RREEF
Textron B-Note Mortgage Loan, in the RREEF Textron B-Note Account) maintained by
the applicable Master Servicer, from its own funds, the amount not otherwise
payable under the blanket or master force-placed policy in connection with such
loss or losses because of such deductible clause to the extent that any such
deductible exceeds the deductible limitation that pertained to the related
Mortgage Loan (or, in the absence of any such deductible limitation, the
deductible limitation for an individual policy which is consistent with the
Servicing Standard). Each of the Master Servicers and the Special Servicers
shall prepare and present, on behalf of itself, the Trustee and
Certificateholders and, if applicable, the RREEF Textron B-Note Holder, claims
under any such blanket or master force-placed policy maintained by it in a
timely fashion in accordance with the terms of such policy.
(c) With respect to each Mortgage Loan (other than any Specially
Serviced Mortgage Loan) that is subject to an Environmental Insurance Policy, if
the applicable Master Servicer has actual knowledge of any event giving rise to
a claim under an Environmental Insurance Policy, such Master Servicer shall
notify the applicable Special Servicer to such effect and such Master Servicer
shall take reasonable actions as are in accordance with the Servicing Standard
and the terms and conditions of such Environmental Insurance Policy to make a
claim thereunder and achieve the payment of all amounts to which the Trust is
entitled thereunder. With respect to each Specially Serviced Mortgage Loan and
REO Property that is subject to an Environmental Insurance Policy, if the
applicable Special Servicer has actual knowledge of any event giving rise to a
claim under an Environmental Insurance Policy, such Special Servicer shall take
reasonable actions as are in accordance with the Servicing Standard and the
terms and conditions of such Environmental Insurance Policy to make a claim
thereunder and achieve the payment of all amounts to which the Trust is entitled
-184-
thereunder. Any legal fees or other out-of-pocket costs incurred in accordance
with the Servicing Standard in connection with any claim under an Environmental
Insurance Policy described above (whether by the applicable Master Servicer or
the applicable Special Servicer) shall be paid by, and reimbursable to, such
Master Servicer as a Servicing Advance.
(d) Each of the Master Servicers and the Special Servicers shall at all
times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement during which Specially
Serviced Mortgage Loans and/or REO Properties as to which it is the Special
Servicer exist as part of the Trust Fund) keep in force with a Qualified Insurer
having the Required Claims-Paying Ratings, a fidelity bond in such form and
amount as are consistent with the Servicing Standard. A Master Servicer or
Special Servicer shall be deemed to have complied with the foregoing provision
if an Affiliate thereof has such fidelity bond coverage and, by the terms of
such fidelity bond, the coverage afforded thereunder extends to such Master
Servicer or such Special Servicer, as the case may be. Such fidelity bond shall
provide that it may not be canceled without ten days' prior written notice to
the Trustee. So long as the long-term unsecured debt obligations of a Master
Servicer (or its direct or indirect parent company) are rated not lower than
"Baa1" by ▇▇▇▇▇'▇ and "A" by Fitch, such Master Servicer may self-insure with
respect to the fidelity bond coverage required as described above, in which case
it shall not be required to maintain an insurance policy with respect to such
coverage.
Each of the Master Servicers and the Special Servicers shall at all
times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement during which Specially
Serviced Mortgage Loans and/or REO Properties as to which it is the Special
Servicer exist as part of the Trust Fund) also keep in force with a Qualified
Insurer having the Required Claims-Paying Ratings, a policy or policies of
insurance covering loss occasioned by the errors and omissions of its officers
and employees in connection with its servicing obligations hereunder, which
policy or policies shall be in such form and amount as are consistent with the
Servicing Standard. A Master Servicer or Special Servicer shall be deemed to
have complied with the foregoing provisions if an Affiliate thereof has such
insurance and, by the terms of such policy or policies, the coverage afforded
thereunder extends to such Master Servicer or such Special Servicer, as the case
may be. Any such errors and omissions policy shall provide that it may not be
canceled without ten days' prior written notice to the Trustee. So long as the
long-term unsecured debt obligations of a Master Servicer (or its direct or
indirect parent company) are rated not lower than "Baa1" by ▇▇▇▇▇'▇ and "A" by
Fitch, such Master Servicer may self-insure with respect to the errors and
omissions coverage required as
-185-
described above, in which case it shall not be required to maintain an insurance
policy with respect to such coverage.
SECTION 3.08. Enforcement of Alienation Clauses.
(a) If the provisions of any Mortgage Loan expressly permits the
assignment of the related Mortgaged Property to, and assumption of such Mortgage
Loan by, another Person upon the satisfaction of specified conditions, prohibits
such an assignment or assumption except upon the satisfaction of specified
conditions or fully prohibits such an assignment and assumption, and the related
Borrower requests approval for such an assignment and assumption or enters into
a transfer of the related Mortgaged Property in violation of the Mortgage Loan
Documents, the applicable Master Servicer (with respect to a Mortgage Loan other
than a Specially Serviced Mortgage Loan) or the applicable Special Servicer
(with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant
information and review and make a determination to either (i) disapprove such
request for approval of such assignment and assumption (in the case of a
Borrower request for approval thereof) or enforce the due-on-sale clause if the
Mortgaged Property is transferred in violation of the Mortgage Loan Documents or
(ii) if in the best economic interest of the Trust and, if applicable, the RREEF
Textron B-Note Holder (as a collective whole), approve the request or waive the
effect of the due-on-sale clause; provided, however, that all of the following
restrictions shall apply:
(A) the applicable Master Servicer shall not approve a request for
approval of an assignment and assumption or waive the effect of a
due-on-sale clause for any Pooled Mortgage Loan, unless such Master
Servicer has obtained the consent of the applicable Special Servicer (it
being understood and agreed that (A) the applicable Master Servicer shall
promptly provide the applicable Special Servicer with notice of any
Borrower request for such assignment or assumption, the applicable Master
Servicer's recommendations and analysis, and with all information
reasonably available to the applicable Master Servicer that the applicable
Special Servicer may reasonably request in order to withhold or grant any
such consent, (B) the applicable Special Servicer shall decide whether to
withhold or grant such consent in accordance with the Servicing Standard
(and subject to Section 3.24, Section 3.27 or Section 3.28, as applicable)
and (C) if any such consent has not been expressly denied within 7 Business
Days of the applicable Special Servicer's receipt from the applicable
Master Servicer of such Master Servicer's recommendations and analysis and
all information reasonably requested thereby and
-186-
reasonably available to the applicable Master Servicer in order to make an
informed decision, such consent shall be deemed to have been granted);
(B) if the affected Mortgage Loan is one that, together with all
other Mortgage Loans, if any, that are in the same Cross-Collateralized
Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan
or have Borrowers that are known to be affiliated with the Borrower under
such Mortgage Loan, is one of the 10 largest Mortgage Loans then in the
Trust or has a Cut-off Date Principal Balance in excess of $20,000,000,
then, subject to the related Mortgage Loan Documents and applicable law,
and except in the case of the RREEF Textron Pooled Mortgage Loan, neither
the applicable Master Servicer (with respect to a Mortgage Loan other than
a Specially Serviced Mortgage Loan) nor the applicable Special Servicer
(with respect to a Specially Serviced Mortgage Loan) shall approve any
Borrower request for approval of an assignment and assumption or waive the
effect of any "due-on-sale" clause unless and until it has received written
confirmation from each Rating Agency that such action would not result in
an Adverse Rating Event with respect to any Class of Rated Certificates;
(C) subject to the related Mortgage Loan Documents and applicable
law, neither the applicable Master Servicer (with respect to a Mortgage
Loan other than a Specially Serviced Mortgage Loan) nor the applicable
Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall
approve any Borrower request for approval of an assignment and assumption
or waive the effect of any "due-on-sale" clause with respect to any
Mortgaged Property which secures a Cross-Collateralized Group unless (i)
all of the Mortgaged Properties securing such Cross-Collateralized Group
are transferred simultaneously by the respective Borrower(s) or (ii) either
(x) in the case of a Master Servicer, it has obtained the consent of the
applicable Special Servicer (pursuant to the approval procedures described
in clause (A) above) or (y) in the case of the applicable Special Servicer,
it has obtained the consent of the Controlling Class Representative if and
to the extent required under Section 3.24);
(D) subject to the related Mortgage Loan Documents and applicable
law, neither the applicable Master Servicer (with respect to a Mortgage
Loan other than a Specially Serviced Mortgage Loan) nor the applicable
Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall
approve any Borrower request for approval of an assignment and assumption
or waive the effect of any "due-on-sale" clause with
-187-
respect to any Mortgage Loan unless all associated costs and expenses
(including the costs of any confirmation(s) of the absence of an Adverse
Rating Event) are covered without any expense to the Trust or (in the case
of the RREEF Textron Mortgage Loan Pair) any expense to the RREEF Textron
B-Note Holder (it being understood and agreed that, except as expressly
provided herein, neither the applicable Master Servicer nor the applicable
Special Servicer shall be obligated to cover or assume any such costs or
expenses);
(E) neither the applicable Master Servicer (with respect to a
Mortgage Loan other than a Specially Serviced Mortgage Loan) nor the
applicable Special Servicer (with respect to a Specially Serviced Mortgage
Loan) shall, in connection with any approval of any Borrower request for
approval of an assignment and assumption or waiver of the effect of any
"due-on-sale" clause with respect to any Mortgage Loan, consent or agree to
any modification, waiver or amendment of any term or provision of such
Mortgage Loan that would result in an Adverse REMIC Event with respect to
any REMIC Pool or any Adverse Grantor Trust Event with respect to either
Grantor Trust Pool; and
(F) the applicable Special Servicer shall not consent to a Master
Servicer's recommendation described in clause (A) above, or itself approve
a request for approval of an assignment and assumption or waive the effect
of a due-on-sale clause, unless the applicable Special Servicer has
complied with Section 3.24.
Notwithstanding the foregoing, in no event will the applicable Master
Servicer's approval of an assignment and assumption be conditioned on the
approval or absence of objection from the applicable Special Servicer if (a) the
assignment and assumption is permitted under the Mortgage Loan Documents and (b)
the conditions to the assignment and assumption that are set forth in the
Mortgage Loan Documents do not include the approval of the lender or the
exercise of lender discretion (other than confirming the satisfaction of the
other conditions to the assignment and assumption set forth in the Mortgage Loan
Documents that do not include any other approval or exercise).
If the provisions of any Mortgage Loan expressly permits the further
encumbrance of the Mortgaged Property upon the satisfaction of specified
conditions, prohibits such a further encumbrance except upon the satisfaction of
specified conditions or fully prohibits such a further encumbrance, and the
related Borrower requests approval for such a further encumbrance or enters into
a further encumbrance in violation of the Mortgage Loan Documents, the
-188-
applicable Master Servicer (with respect to a Mortgage Loan other than a
Specially Serviced Mortgage Loan) or the applicable Special Servicer (with
respect to a Specially Serviced Mortgage Loan) shall obtain the relevant
information and review and make a determination to either (i) disapprove such
request for approval of such further encumbrance (in the case of a Borrower
request for approval thereof) or enforce the due-on-encumbrance clause if the
Mortgaged Property is encumbered in the violation of the Mortgage Loan Documents
or (ii) if in the best economic interest of the Trust and, if applicable, the
RREEF Textron B-Note Holder (as a collective whole), approve the request or
waive the effect of the due-on-encumbrance; provided, however, that all of the
following restrictions shall apply:
(A) the applicable Master Servicer shall not approve a Borrower
request for approval of a further encumbrance or waive the effect of a
"due-on-encumbrance" clause unless such Master Servicer has obtained the
consent of the applicable Special Servicer (it being understood and agreed
that (A) the applicable Master Servicer shall promptly provide the
applicable Special Servicer with notice of any Borrower request for
approval of such further encumbrance, the applicable Master Servicer's
recommendations and analysis, and with all information reasonably available
to the applicable Master Servicer that the applicable Special Servicer may
reasonably request in order to withhold or grant any such consent, (B) the
applicable Special Servicer shall decide whether to withhold or grant such
consent in accordance with the Servicing Standard (and subject to Section
3.24, Section 3.27 or Section 3.28, as applicable) and (C) if any such
consent has not been expressly denied within 7 Business Days of the
applicable Special Servicer's receipt from the applicable Master Servicer
of such Master Servicer's recommendations and analysis and all information
reasonably requested thereby and reasonably available to the applicable
Master Servicer in order to make an informed decision, such consent shall
be deemed to have been granted);
(B) subject to the related Mortgage Loan Documents and applicable
law, neither the applicable Master Servicer (with respect to a Mortgage
Loan other than a Specially Serviced Mortgage Loan) nor the applicable
Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall
approve any Borrower request for approval of a further encumbrance or waive
the effect of any "due-on-encumbrance" clause unless and until it has
received written confirmation from each Rating Agency that such action
would not result in an Adverse Rating Event with respect to any Class of
Rated Certificates;
-189-
(C) subject to the related Mortgage Loan Documents and applicable
law, neither the applicable Master Servicer (with respect to a Mortgage
Loan other than a Specially Serviced Mortgage Loan) nor the applicable
Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall
approve any Borrower request for approval of a further encumbrance or waive
the effect of any "due-on-encumbrance" clause with respect to any Mortgage
Loan unless all associated costs and expenses (including the costs of any
confirmation(s) of the absence of an Adverse Rating Event) are covered
without any expense to the Trust (it being understood and agreed that
neither the applicable Master Servicer nor the applicable Special Servicer
shall be obligated to cover or assume any such costs or expenses);
(D) neither the applicable Master Servicer (with respect to a
Mortgage Loan other than a Specially Serviced Mortgage Loan) nor the
applicable Special Servicer (with respect to a Specially Serviced Mortgage
Loan) shall, in connection with any approval of any Borrower request for
approval of a further encumbrance or waiver of the effect of any
"due-on-encumbrance" clause with respect to any Mortgage Loan, consent or
agree to any modification, waiver or amendment of any term or provision of
such Mortgage Loan that would result in an Adverse REMIC Event with respect
to any REMIC Pool or any Adverse Grantor Trust Event with respect to either
Grantor Trust Pool; and
(E) the applicable Special Servicer shall not consent to a Master
Servicer's recommendation described in clause (A) above, or itself approve
a request for approval of a further encumbrance or waive the effect of a
due-on-encumbrance clause, unless the applicable Special Servicer has
complied with Section 3.24.
Notwithstanding the foregoing, in no event will the applicable Master
Servicer's approval of a further encumbrance be conditioned on the approval or
absence of objection from the applicable Special Servicer if (a) the further
encumbrance is permitted under the Mortgage Loan Documents and (b) the
conditions to the further encumbrance that are set forth in the Mortgage Loan
Documents do not include the approval of the lender or the exercise of lender
discretion (other than confirming the satisfaction of the other conditions to
the further encumbrance set forth in the Mortgage Loan Documents that do not
include any other approval or exercise).
In connection with any request for approval of an assignment and
assumption or waiver of a due-on-sale clause or any request for approval of a
-190-
further encumbrance of a Mortgaged Property or waiver of a due-on-encumbrance
clause, neither Master Servicer shall have any liability to the Trust Fund, the
Certificateholders, the RREEF Textron B-Note Holder or any other Person (i) with
respect to the applicable Special Servicer's approval of, disapproval of or
delay in processing such request or (ii) that may otherwise arise from any one
or more of the restrictions set forth in clauses (A) through (F) of the first
paragraph of this Section 3.08(a) or clauses (A) through (F) of the second
paragraph of this Section 3.08(a), as the case may be.
(b) In connection with any permitted assumption of any Mortgage Loan or
waiver of a "due-on-sale" or "due-on-encumbrance" clause thereunder, the
applicable Master Servicer (in the case of a Mortgage Loan that is not a
Specially Serviced Mortgage Loan) or the applicable Special Servicer (in the
case of a Specially Serviced Mortgage Loan) shall prepare all documents
necessary and appropriate for such purposes and shall coordinate with the
related Borrower for the due execution and delivery of such documents.
(c) The applicable Master Servicer shall have the right to consent to
any transfers of an interest in a Borrower, to the extent such transfer is
allowed under the terms of the related Mortgage Loan (without the exercise of
any lender approval or discretion other than confirming the satisfaction of the
other conditions to the transfer set forth in the Mortgage Loan Documents that
do not include any other approval or exercise), including any consent to
transfer to any subsidiary or affiliate of a Borrower or to a person acquiring
less than a majority interest in the Borrower; provided, however, that, subject
to the terms of the related Mortgage Loan Documents and applicable law, if (i)
the affected Mortgage Loan is one that, together with all other Mortgage Loans,
if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or
have the same Borrower as such Mortgage Loan or have Borrowers that are known to
be affiliated with the Borrower under such Mortgage Loan has a Stated Principal
Balance that equals or exceeds 5% of the then aggregate Certificate Principal
Balance or is one of the then current top 10 Mortgage Loans (by Stated Principal
Balance) in the Mortgage Pool or has a Cut-off Date Principal Balance in excess
of $20,000,000 and (ii) the transfer is of an interest in the Borrower greater
than 49%, then the Master Servicer shall not consent to such transfer unless and
until it has received written confirmation from each Rating Agency that such
action would not result in an Adverse Rating Event with respect to any Class of
Rated Certificates (the costs of which are to be payable by the related Borrower
to the extent provided for in the Mortgage Loan Documents, which provisions
shall not be waived by the applicable Master Servicer, and, if not paid, such
costs shall be paid by and reimbursed to the applicable Master Servicer as an
Additional Trust Fund Expense). The applicable Master Servicer shall be entitled
to collect and receive from Borrowers any customary fees in
-191-
connection with such transfers of interest as Additional Master Servicing
Compensation.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans.
(a) The applicable Special Servicer shall, subject to Sections 3.09(b),
3.09(c), 3.09(d) and 3.24, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of the real property and other collateral securing any Mortgage Loan
that comes into and continues in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments, including
pursuant to Section 3.20; provided that none of the Master Servicers shall, with
respect to any ARD Mortgage Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Post-ARD Additional Interest
(other than the making of requests for its collection), and the applicable
Special Servicer may do so only if (i) the taking of an enforcement action with
respect to the payment of other amounts due under such Mortgage Loan is, in the
reasonable judgment of the applicable Special Servicer, and without regard to
such Post-ARD Additional Interest, also necessary, appropriate and consistent
with the Servicing Standard or (ii) all other amounts due under such Mortgage
Loan have been paid, the payment of such Post-ARD Additional Interest has not
been forgiven in accordance with Section 3.20 and, in the reasonable judgment of
the applicable Special Servicer, the Liquidation Proceeds expected to be
recovered in connection with such enforcement action will cover the anticipated
costs of such enforcement action and, if applicable, any associated Advance
Interest. In connection with the foregoing, in the event of a default under any
Mortgage Loan or Cross-Collateralized Group that is secured by real properties
located in multiple states, and such states include California or another state
with a statute, rule or regulation comparable to California's "one action rule",
then the applicable Special Servicer shall consult Independent counsel regarding
the order and manner in which the applicable Special Servicer should foreclose
upon or comparably proceed against such properties. The applicable Special
Servicer may direct the Master Servicer to advance, as contemplated by Section
3.19(d), all costs and expenses (including attorneys fees and litigation costs
and expenses) to be incurred on behalf of the Trust in any such proceedings or
such consultation, subject to the Master Servicer being entitled to
reimbursement for any such advance as a Servicing Advance as provided in Section
3.05(a), and further subject to the applicable Special Servicer's being entitled
to pay out of the related Liquidation Proceeds, Insurance Proceeds and/or
Condemnation Proceeds any Liquidation Expenses incurred in respect of any
Mortgage Loan, which Liquidation Expenses were outstanding at the time such
proceeds are received.
-192-
Nothing contained in this Section 3.09 shall be construed so as to require the
applicable Special Servicer, on behalf of the Trust, to make a bid on any
Mortgaged Property at a foreclosure sale or similar proceeding that is in excess
of the fair market value of such property, as determined by the applicable
Special Servicer taking into account the factors described in Section 3.18 and
the results of any appraisal obtained pursuant to the following sentence or
otherwise, all such cash bids to be made in a manner consistent with the
Servicing Standard. If and when the applicable Master Servicer or the applicable
Special Servicer deems it necessary in accordance with the Servicing Standard
for purposes of establishing the fair market value of any Mortgaged Property
securing a defaulted Mortgage Loan, whether for purposes of bidding at
foreclosure or otherwise, such Master Servicer or such Special Servicer (as the
case may be) is authorized to have an Appraisal completed with respect to such
property (the cost of which appraisal shall be covered by, and be reimbursable
as, a Servicing Advance).
Neither Master Servicer shall foreclose upon or otherwise comparably
convert, including by taking title thereto, any real property or other
collateral securing a defaulted Mortgage Loan.
(b) Notwithstanding the foregoing provisions of this Section 3.09, no
Mortgaged Property shall be acquired by the applicable Special Servicer on
behalf of the Trust under such circumstances, in such manner or pursuant to such
terms as would (i) cause such Mortgaged Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(unless the portion of such REO Property that is not treated as "foreclosure
property" and that is held by any REMIC Pool at any given time constitutes not
more than a de minimis amount of the assets of such REMIC Pool within the
meaning of Treasury regulation section 1.860D-1(b)(3)(i) and (ii)), or (ii)
except as permitted by Section 3.17(a), subject the Trust to the imposition of
any federal income or prohibited transaction taxes under the Code. Subject to
the foregoing, however, a Mortgaged Property may be acquired through a single
member limited liability company. In addition, except as permitted under Section
3.17(a), the applicable Special Servicer shall not acquire any personal property
on behalf of the Trust pursuant to this Section 3.09 unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the applicable
Special Servicer; or
(ii) the applicable Special Servicer shall have obtained an Opinion of
Counsel (the cost of which shall be covered by, and reimbursable as, a
Servicing Advance) to the effect that the holding of
-193-
such personal property as part of the Trust Fund will not result in an
Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor
Trust Event with respect to either Grantor Trust Pool.
(c) Notwithstanding the foregoing provisions of this Section 3.09, the
applicable Special Servicer shall not, on behalf of the Trust (and in the case
of the RREEF Textron Mortgage Loan Pair, the RREEF Textron B-Note Holder), have
a receiver of rents appointed with respect to a Mortgaged Property, or obtain
title to a Mortgaged Property by foreclosure, deed in lieu of foreclosure or
otherwise, or take any other action with respect to any Mortgaged Property, if,
as a result of any such action, the Trustee, on behalf of the
Certificateholders, could, in the reasonable judgment of the applicable Special
Servicer, exercised in accordance with the Servicing Standard, be considered to
hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law, unless:
(i) the applicable Special Servicer has previously determined in
accordance with the Servicing Standard, based on a Phase I Environmental
Assessment (and any additional environmental testing that the applicable Special
Servicer deems necessary and prudent) of such Mortgaged Property conducted by an
Independent Person who regularly conducts Phase I Environmental Assessments and
performed during the 12-month period preceding any such acquisition of title or
other action, that such Mortgaged Property is in compliance with applicable
environmental laws and regulations and there are no circumstances or conditions
present at the Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring, containment,
clean-up or remediation could be required under any applicable environmental
laws and regulations; or
(ii) in the event that the determination described in clause (c)(i)
above cannot be made, the applicable Special Servicer has previously determined
in accordance with the Servicing Standard, on the same basis as described in
clause (c)(i) above, and taking into account the coverage provided under the
related Environmental Insurance Policy, that it would maximize the recovery to
the Certificateholders and, in the case of the RREEF Textron Mortgaged Property,
to the RREEF Textron B-Note Holder (as a collective whole) on a present value
basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders and, in the case of the RREEF Textron
Mortgaged Property, to the RREEF Textron B-Note Holder, to be performed at the
-194-
related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its
Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior
to the Anticipated Repayment Date)) to acquire title to or possession of the
Mortgaged Property and to take such remedial, corrective and/or other further
actions as are necessary to bring the Mortgaged Property into compliance with
applicable environmental laws and regulations and to appropriately address any
of the circumstances and conditions referred to in clause (c)(i) above.
Any such determination by the applicable Special Servicer contemplated
by clause (i) or clause (ii) of the preceding paragraph shall be evidenced by an
Officer's Certificate to such effect delivered to the Trustee, the applicable
Master Servicer and the Controlling Class Representative (and, in the case of
the RREEF Textron Mortgaged Property, the RREEF Textron B-Note Holder),
specifying all of the bases for such determination, such Officer's Certificate
to be accompanied by all related environmental reports.
The cost of such Phase I Environmental Assessment and any such
additional environmental testing, as well as the cost of any remedial,
corrective or other further action contemplated by clause (i) and/or clause (ii)
of the preceding paragraph, shall be paid out of the applicable Collection
Account (and, in the case of the RREEF Textron Mortgaged Property, out of the
RREEF Textron B-Note Account) pursuant to Section 3.05.
(d) If neither of the conditions set forth in clauses (i) and (ii) of
the first paragraph of Section 3.09(c) has been satisfied with respect to any
Mortgaged Property securing a defaulted Pooled Mortgage Loan (or, if applicable,
the RREEF Textron Mortgage Loan Pair), the applicable Special Servicer shall
take such action as is in accordance with the Servicing Standard (other than
proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trust and, if applicable, the RREEF Textron
B-Note Holder, release all or a portion of such Mortgaged Property from the lien
of the related Mortgage; provided that, if such Mortgage Loan has a then
outstanding principal balance greater than $1 million, then prior to the release
of all or a portion of the related Mortgaged Property from the lien of the
related Mortgage, (i) the applicable Special Servicer shall have notified the
Rating Agencies, the Controlling Class Representative, the Trustee and the
applicable Master Servicer in writing of its intention to so release all or a
portion of such Mortgaged Property and the bases for such intention and (ii) the
Controlling Class Representative shall not have objected to such release within
30 days of such notice or, if the Controlling Class Representative shall have
objected, such objection, in the
-195-
applicable Special Servicer's good faith judgment, was inconsistent with the
Servicing Standard.
(e) The applicable Special Servicer shall report to the Trustee, the
applicable Master Servicer and the Controlling Class Representative (and, in the
case of the RREEF Textron Mortgaged Property, the RREEF Textron B-Note Holder)
monthly in writing as to any actions taken by the applicable Special Servicer
with respect to any Mortgaged Property as to which neither of the conditions set
forth in clauses (i) and (ii) of the first paragraph of Section 3.09(c) has been
satisfied, in each case until the earliest to occur of satisfaction of either of
such conditions, release of the lien of the related Mortgage on such Mortgaged
Property and the related Pooled Mortgage Loan's (or, in the case of the RREEF
Textron Mortgage Loan Pair, each of the related Mortgage Loan's) becoming a
Corrected Mortgage Loan.
(f) The applicable Special Servicer shall have the right to determine,
in accordance with the Servicing Standard, the advisability of seeking to obtain
a deficiency judgment if the state in which the related Mortgaged Property is
located and the terms of the subject Mortgage Loan permit such an action and
shall, in accordance with the Servicing Standard, seek such deficiency judgment
if it deems advisable. The applicable Master Servicer, at the direction of the
applicable Special Servicer, shall make a Servicing Advance for the costs
incurred in pursuing any such deficiency action, provided that such Master
Servicer shall not be obligated in connection therewith to advance any funds,
which if so advanced would constitute a Nonrecoverable Advance.
(g) Annually in each January, the applicable Master Servicer shall,
with the reasonable cooperation of the applicable Special Servicer, prepare and
file with the IRS on a timely basis the information returns with respect to the
reports of foreclosures and abandonments and reports relating to any
cancellation of indebtedness income with respect to any Mortgage Loan for which
it is the applicable Master Servicer, or Mortgaged Property securing a Mortgage
Loan for which it is the applicable Master Servicer, required by Sections 6050H
(as applicable), 6050J and 6050P of the Code. Contemporaneously therewith, the
applicable Master Servicer shall deliver a copy of such information returns to
the respective applicable Special Servicers and the Trustee.
(h) As soon as the applicable Special Servicer makes a Final Recovery
Determination (such determination to be made in consultation with the
Controlling Class Representative (or, in the case of the RREEF Textron B-Note
Mortgage Loan or the RREEF Textron Mortgaged Property, the RREEF Textron B-Note
Holder) and the related calculations to be subject to the approval of such
-196-
Controlling Class Representative or RREEF Textron B-Note Holder) with respect to
any Mortgage Loan or REO Property, it shall promptly notify the Certificate
Administrator, the Trustee, the applicable Master Servicer and the Controlling
Class Representative (and, in the case of the RREEF Textron B-Note Mortgage Loan
or the RREEF Textron Mortgaged Property, the RREEF Textron B-Note Holder). The
applicable Special Servicer shall maintain accurate records, prepared by a
Servicing Officer, of each such Final Recovery Determination (if any) made by it
and the basis thereof. Each such Final Recovery Determination (if any) shall be
evidenced by an Officer's Certificate delivered to the Certificate
Administrator, the Trustee, the applicable Master Servicer and the Controlling
Class Representative no later than 10 Business Days following such Final
Recovery Determination.
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the applicable Master Servicer of a notification that payment in full shall be
escrowed or made in a manner customary for such purposes, the applicable Master
Servicer shall promptly so notify the Trustee and request delivery to it or its
designee of the related Mortgage File and, in the case of the RREEF Textron
B-Note Mortgage Loan, the Master Servicer shall promptly so notify the RREEF
Textron B-Note Holder and request delivery to it or its designee of the RREEF
Textron B-Note (such notice and request to be effected by delivering to the
Trustee a Request for Release in the form of Exhibit C-1 attached hereto, which
Request for Release shall be accompanied by the form of any release or discharge
to be executed by the Trustee and, in the case of the RREEF Textron B-Note
Mortgage Loan, if applicable, the RREEF Textron B-Note Holder and shall include
a statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in such Master
Servicer's Collection Account and/or, in the case of the RREEF Textron B-Note
Mortgage Loan, in the RREEF Textron B-Note Account, pursuant to Section 3.04(a)
have been or will be so deposited). Upon receipt of such Request for Release,
the Trustee and, in the case of the RREEF Textron B-Note Mortgage Loan, if
applicable, the RREEF Textron B-Note Holder shall promptly release, or cause any
related Custodian to release, the related Mortgage File to the applicable Master
Servicer or its designee and shall deliver to the applicable Master Servicer or
its designee such accompanying release or discharge, duly executed. No expenses
incurred in connection with preparing or recording any instrument of
satisfaction or deed of reconveyance shall be chargeable to a Collection
Account, the RREEF Textron B-Note Account or the Distribution Account.
-197-
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, the applicable Master Servicer or the
applicable Special Servicer shall otherwise require any Mortgage File (or any
portion thereof) or, in the case of the RREEF Textron B-Note Mortgage Loan, the
RREEF Textron B-Note, then, upon request of such Master Servicer and receipt
from such Master Servicer of a Request for Release in the form of Exhibit C-1
attached hereto signed by a Servicing Officer thereof, or upon request of the
applicable Special Servicer and receipt from such Special Servicer of a Request
for Release in the form of Exhibit C-2 attached hereto, the Trustee or, in the
case of the RREEF Textron B-Note Mortgage Loan, if applicable, the RREEF Textron
B-Note Holder, shall release, or the Trustee shall cause any related Custodian
to release, such Mortgage File (or portion thereof) or, in the case of the RREEF
Textron B-Note Mortgage Loan, the RREEF Textron B-Note to such Master Servicer
or such Special Servicer, as the case may be, or its designee. Upon return of
such Mortgage File (or portion thereof) to the Trustee or the related Custodian
and/or, in the case of the RREEF Textron B-Note Mortgage Loan, the RREEF Textron
B-Note to the RREEF Textron B-Note Holder, or upon the applicable Special
Servicer's delivery to the Trustee and, in the case of the RREEF Textron B-Note
Mortgage Loan, the RREEF Textron B-Note Holder, of an Officer's Certificate
stating that (i) such Mortgage Loan was liquidated and all amounts received or
to be received in connection with such liquidation that are required to be
deposited into the Collection Account and/or the RREEF Textron B-Note Account,
as applicable, pursuant to Section 3.04 have been or will be so deposited or
(ii) such Mortgage Loan has become an REO Mortgage Loan, a copy of the Request
for Release shall be returned by the Trustee and, in the case of the RREEF
Textron B-Note Mortgage Loan, the RREEF Textron B-Note Holder, to the applicable
Master Servicer or Special Servicer, as applicable.
(c) Within five Business Days of the applicable Special Servicer's
request therefor (or, if the applicable Special Servicer notifies the Trustee
and, in the case of the RREEF Textron B-Note Mortgage Loan, if applicable, the
RREEF Textron B-Note Holder, of an exigency, within such shorter period as is
reasonable under the circumstances), the Trustee and, in the case of the RREEF
Textron B-Note Mortgage Loan, if applicable, the RREEF Textron B-Note Holder,
shall execute and deliver to such Special Servicer, in the form supplied to the
Trustee or the RREEF Textron B-Note Holder, as applicable, by such Special
Servicer, any court pleadings, requests for trustee's sale or other documents
reasonably necessary to the foreclosure or trustee's sale in respect of a
Mortgaged Property or to any legal action brought to obtain judgment against any
Borrower on the Mortgage Note or Mortgage or to obtain a deficiency judgment, or
to enforce any other remedies or rights provided by the Mortgage Note or
-198-
Mortgage or otherwise available at law or in equity or to defend any legal
action or counterclaim filed against the Trust, a Master Servicer or a Special
Servicer; provided that the Trustee and, in the case of the RREEF Textron B-Note
Mortgage Loan, if applicable, the RREEF Textron B-Note Holder, may alternatively
execute and deliver to the applicable Special Servicer, in the form supplied to
the Trustee or the RREEF Textron B-Note Holder, as applicable, by such Special
Servicer, a limited power of attorney issued in favor of such Special Servicer
and empowering such Special Servicer to execute and deliver any or all of such
pleadings or documents on behalf of the Trustee or the RREEF Textron B-Note
Holder, as applicable (however, the Trustee and, in the case of the RREEF
Textron B-Note Mortgage Loan, the RREEF Textron B-Note Holder, shall not be
liable for any misuse of such power of attorney by such Special Servicer).
Together with such pleadings or documents (or such power of attorney empowering
the applicable Special Servicer to execute the same on behalf of the Trustee or
the RREEF Textron B-Note Holder, as applicable), the applicable Special Servicer
shall deliver to the Trustee or, in the case of the RREEF Textron B-Note
Mortgage Loan, if applicable, the RREEF Textron B-Note Holder, an Officer's
Certificate requesting that such pleadings or documents (or such power of
attorney empowering such Special Servicer to execute the same on behalf of the
Trustee or the RREEF Textron B-Note Holder, as applicable) be executed by the
Trustee or, in the case of the RREEF Textron B-Note Mortgage Loan, if
applicable, the RREEF Textron B-Note Holder, and certifying as to the reason
such pleadings or documents are required and that the execution and delivery
thereof by the Trustee or the RREEF Textron B-Note Holder, as applicable (or by
the applicable Special Servicer on behalf of the Trustee or the RREEF Textron
B-Note Holder, as applicable) will not invalidate or otherwise affect the lien
of the Mortgage, except for the termination of such a lien upon completion of
the foreclosure or trustee's sale.
SECTION 3.11. Master Servicing and Special Servicing
Compensation; Interest on and Reimbursement of Servicing
Advances; Payment of Certain Expenses; Obligations of
the Trustee and the Fiscal Agent Regarding Back-up
Servicing Advances.
(a) As compensation for its activities hereunder, each Master Servicer
shall be entitled to receive the Master Servicing Fee with respect to each
Mortgage Loan (including each Specially Serviced Mortgage Loan and each REO
Mortgage Loan that was previously a Mortgage Loan) as to which it is the
applicable Master Servicer. As to each such Mortgage Loan and REO Mortgage Loan,
for each calendar month (commencing with October 2002) or any
-199-
applicable portion thereof, the Master Servicing Fee shall accrue at the related
Master Servicing Fee Rate on the Stated Principal Balance of such Mortgage Loan
or such REO Mortgage Loan, as the case may be, and shall be calculated on the
same Interest Accrual Basis as is applicable for such Mortgage Loan or REO
Mortgage Loan, as the case may be, and for the same number of days respecting
which any related interest payment due on such Mortgage Loan or deemed to be due
on such REO Mortgage Loan is computed under the terms of the related Mortgage
Note (as such terms may be changed or modified at any time following the Closing
Date) and applicable law. The Master Servicing Fee with respect to any Mortgage
Loan or REO Mortgage Loan shall cease to accrue if a Liquidation Event occurs in
respect thereof. Master Servicing Fees earned with respect to any Pooled
Mortgage Loan or REO Pooled Mortgage Loan shall be payable monthly from payments
of interest on such Pooled Mortgage Loan or REO Revenues allocable as interest
on such REO Pooled Mortgage Loan, as the case may be. The applicable Master
Servicer shall be entitled to recover unpaid Master Servicing Fees in respect of
any Pooled Mortgage Loan or REO Pooled Mortgage Loan out of the portion any
related Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds
allocable as interest on such Pooled Mortgage Loan or REO Pooled Mortgage Loan,
as the case may be. Master Servicing Fees earned with respect to the RREEF
Textron B-Note Mortgage Loan or any successor REO Mortgage Loan shall be payable
out of the RREEF Textron B-Note Account as provided in Section 3.05(f). The
Servicer Report Administrator shall be entitled to the Servicer Report
Administrator Fee (payable as provided in Section 8.05(a)) in respect of all the
Pooled Mortgage Loans and successor REO Mortgage Loans thereto.
PAR and any successor holder of the Excess Servicing Fee Rights that
relate to the Mortgage Loans (and any successor REO Mortgage Loans with respect
to such Mortgage Loans) for which PAR is the applicable Master Servicer shall be
entitled, at any time, at its own expense, to transfer, sell, pledge or
otherwise assign such Excess Servicing Fee Rights in whole (but not in part),
and WFB and any successor holder of the Excess Servicing Fee Rights that relate
to the Mortgage Loans (and any successor REO Mortgage Loans with respect to such
Mortgage Loans) for which WFB is the applicable Master Servicer shall be
entitled, at any time, at its own expense, to transfer, sell, pledge or
otherwise assign such Excess Servicing Fee Rights in whole (but not in part), in
either case, to any Qualified Institutional Buyer or Institutional Accredited
Investor (other than a Plan), provided that no such transfer, sale, pledge or
other assignment shall be made unless (i) that transfer, sale, pledge or other
assignment is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws and is otherwise
made in accordance with the
-200-
Securities Act and such state securities laws, (ii) the prospective transferor
shall have delivered to the Depositor a certificate substantially in the form
attached as Exhibit E-3A hereto, and (iii) the prospective transferee shall have
delivered to PAR or WFB, as applicable, and the Depositor a certificate
substantially in the form attached as Exhibit E-3B hereto. None of the
Depositor, the Trustee or the Certificate Registrar is obligated to register or
qualify an Excess Servicing Fee Right under the Securities Act or any other
securities law or to take any action not otherwise required under this Agreement
to permit the transfer, sale, pledge or assignment of an Excess Servicing Fee
Right without registration or qualification. PAR, WFB and each holder of an
Excess Servicing Fee Right desiring to effect a transfer, sale, pledge or other
assignment of such Excess Servicing Fee Right shall, and each of PAR and WFB
hereby agrees, and each such holder of an Excess Servicing Fee Right by its
acceptance of such Excess Servicing Fee Right shall be deemed to have agreed, in
connection with any transfer of such Excess Servicing Fee Right effected by such
Person, to indemnify the Certificateholders, the Trust, the Depositor, the
Underwriter, the Certificate Administrator, the Trustee, any Fiscal Agent, the
Master Servicers, the Certificate Registrar and the Special Servicer against any
liability that may result if such transfer is not exempt from registration
and/or qualification under the Securities Act or other applicable federal and
state securities laws or is not made in accordance with such federal and state
laws or in accordance with the foregoing provisions of this paragraph. By its
acceptance of an Excess Servicing Fee Right, the holder thereof shall be deemed
to have agreed not to use or disclose such information in any manner that could
result in a violation of any provision of the Securities Act or other applicable
securities laws or that would require registration of such Excess Servicing Fee
Right or any Non-Registered Certificate pursuant to the Securities Act. From
time to time following any transfer, sale, pledge or assignment of an Excess
Servicing Fee Right, the Person then acting as the Master Servicer with respect
to the Mortgage Loan or REO Mortgage Loan to which the Excess Servicing Fee
Right relates, shall pay, out of each amount paid to such Master Servicer as
Master Servicing Fees with respect to such Mortgage Loan or REO Mortgage Loan,
as the case may be, the related Excess Servicing Fees to the holder of such
Excess Servicing Fee Right within one Business Day following the payment of such
Master Servicing Fees to such Master Servicer, in each case in accordance with
payment instructions provided by such holder in writing to such Master Servicer.
The holder of an Excess Servicing Fee Right shall not have any rights under this
Agreement except as set forth in the preceding sentences of this paragraph. None
of the Certificate Administrator, the other Master Servicer, the Certificate
Registrar, the Depositor, the Special Servicer, the Trustee or the Tax
Administrator shall have any obligation whatsoever regarding payment of the
-201-
Excess Servicing Fee or the assignment or transfer of the Excess Servicing Fee
Right.
A Master Servicer's right to receive the Master Servicing Fees (and, in
the case of the Servicer Report Administrator, the Servicer Report Administrator
Fees) to which it is entitled may not be transferred in whole or in part except
in connection with the transfer of all of such Master Servicer's
responsibilities and obligations under this Agreement and except as otherwise
expressly provided herein, including as contemplated by the prior paragraph.
(b) Each Master Servicer shall be entitled to receive the following
items as additional servicing compensation (the following items, collectively,
"Additional Master Servicing Compensation") with respect to Mortgage Loans for
which it is the applicable Master Servicer:
(i) any and all Net Default Charges (which shall be payable in (and not
prior to) the Collection Period in which they are actually collected with
respect to any Mortgage Loan) accrued during the period when such Mortgage
Loan was not a Specially Serviced Mortgage Loan; and any and all
application fees for consents to approvals of assignments and assumptions,
further encumbrances or other lender approvals, to the extent actually
collected during the related Collection Period with respect to Mortgage
Loans that are not Specially Serviced Mortgage Loans;
(ii) 50% of assumption fees, modification fees, extension fees, consent
fees, release fees, waiver fees, fees paid in connection with defeasance
and earn-out fees or other similar fees (excluding Prepayment Premiums and
Yield Maintenance Charges), in each case to the extent actually collected
during the related Collection Period with respect to Mortgage Loans that
are not Specially Serviced Mortgage Loans and paid in connection with a
consent, approval or other action that the applicable Master Servicer is
not permitted to take in the absence of the consent or approval (or deemed
consent or approval) of the applicable Special Servicer under the other
provisions of this Agreement and 100% of assumption fees, modification
fees, extension fees, consent fees, release fees, waiver fees, fees paid in
connection with defeasance and earn-out fees or other similar fees
(excluding Prepayment Premiums and Yield Maintenance Charges), in each case
to the extent actually collected during the related Collection Period with
respect to Mortgage Loans that are not Specially Serviced Mortgage Loans
and paid in connection with a consent, approval or other action that the
applicable Master Servicer is permitted to take in the absence of the
consent or approval (or deemed consent or
-202-
approval) of the applicable Special Servicer under the other provisions of this
Agreement;
(iii) any and all charges for beneficiary statements or demands,
amounts collected for checks returned for insufficient funds and other loan
processing fees actually paid by the Borrowers;
(iv) any and all Prepayment Interest Excesses collected with respect to
the Pooled Mortgage Loans;
(v) interest or other income earned on deposits in the Investment
Accounts maintained by such Master Servicer, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to any such Investment Account for each Collection Period and,
further, in the case of a Servicing Account or Reserve Account, only to the
extent such interest or other income is not required to be paid to any
Borrower under applicable law or under the related Mortgage).
To the extent that any of the amounts described in clauses (i) through
(iv) in the preceding paragraph are collected by the Special Servicer, the
Special Servicer shall promptly pay such amounts to the applicable Master
Servicer.
(c) As compensation for its activities hereunder, subject to the
proviso to clause (d) of the definition of "Servicing Transfer Event", each
Special Servicer shall be entitled to receive monthly the Special Servicing Fee
with respect to each Mortgage Loan that is a Specially Serviced Mortgage Loan,
and each successor REO Mortgage Loan thereto that relates to an REO Property,
for which it is the applicable Special Servicer. As to each such Specially
Serviced Mortgage Loan and REO Mortgage Loan, for any particular calendar month
or applicable portion thereof, the Special Servicing Fee shall accrue at the
Special Servicing Fee Rate on the Stated Principal Balance of such Specially
Serviced Mortgage Loan or such REO Mortgage Loan, as the case may be, and shall
be calculated on the same Interest Accrual Basis as is applicable for such
Specially Serviced Mortgage Loan or REO Mortgage Loan, as the case may be, and
for the same number of days respecting which any related interest payment due on
such Mortgage Loan or deemed to be due on such REO Mortgage Loan is computed
under the terms of the related Mortgage Note (as such terms may be changed or
modified at any time following the Closing Date) and applicable law. The Special
Servicing Fee with respect to any Specially Serviced Mortgage Loan or REO
Mortgage Loan shall cease to accrue as of the date a Liquidation Event occurs in
-203-
respect thereof or, in the case of a Specially Serviced Mortgage Loan, as of the
date it becomes a Corrected Mortgage Loan. Earned but unpaid Special Servicing
Fees with respect to Pooled Mortgage Loans that are Specially Serviced Mortgage
Loans and REO Pooled Mortgage Loans shall be payable (pursuant to Section
3.05(a)) monthly first out of related Liquidation Proceeds, Insurance Proceeds
and/or Condemnation Proceeds, if any, and then out of general collections on the
Pooled Mortgage Loans and any REO Properties on deposit in the Collection
Account; provided that, unless the applicable Special Servicer reasonably
determines that they will not ultimately be collectable out of collections on or
with respect to the RREEF Textron B-Note Mortgage Loan or any successor REO
Mortgage Loan, any Special Servicing Fees earned by the RREEF Textron Special
Servicer with respect to the RREEF Textron Pooled Mortgage Loan or any successor
REO Pooled Mortgage Loan shall be paid out of the RREEF Textron B-Note Account
pursuant to Section 3.05(f). Earned but unpaid Special Servicing Fees with
respect to the RREEF Textron B-Note Mortgage Loan or any successor REO Mortgage
Loan shall be payable out of the RREEF Textron B-Note Account as provided in
Section 3.05(f).
As further compensation for its activities hereunder, the applicable
Special Servicer shall be entitled to receive the Workout Fee with respect to
each Corrected Mortgage Loan for which it is the applicable Special Servicer,
unless the basis on which the applicable Mortgage Loan became a Corrected
Mortgage Loan was the remediation of a circumstance or condition relating to the
related Pooled Mortgage Loan Seller's obligation to repurchase such Mortgage
Loan pursuant to the related Pooled Mortgage Loan Purchase Agreement, as
applicable, in which case, if such Mortgage Loan is repurchased within the
Initial Resolution Period (or, if applicable the Resolution Extension Period is
permitted under Section 2.03) no Workout Fee will be payable from or based upon
the receipt of, any Purchase Price paid by the related Pooled Mortgage Loan
Seller in satisfaction of such repurchase obligation. As to each such Corrected
Mortgage Loan, the Workout Fee shall be payable out of, and shall be calculated
by application of the Workout Fee Rate to, each payment of interest (other than
Post-ARD Additional Interest and Default Interest) and principal received from
the related Borrower on such Corrected Mortgage Loan for so long as it remains a
Corrected Mortgage Loan; provided that, unless the Special Servicer reasonably
determines that they will not ultimately be collectable out of collections on or
with respect to the RREEF Textron B-Note Mortgage Loan or any successor REO
Mortgage Loan, any Workout Fees earned by the RREEF Textron Special Servicer
with respect to the RREEF Textron Pooled Mortgage Loan shall be paid out of the
RREEF Textron B-Note Account pursuant to Section 3.05(f). The Workout Fee with
respect to any Corrected Mortgage Loan will cease to be
-204-
payable if such Corrected Mortgage Loan again becomes a Specially Serviced
Mortgage Loan or if the related Mortgaged Property becomes an REO Property;
provided that a new Workout Fee would become payable if and when such Mortgage
Loan again became a Corrected Mortgage Loan after having again become a
Specially Serviced Mortgage Loan. If a Special Servicer is terminated or
resigns, it shall retain the right (and the applicable successor Special
Servicer shall not be entitled) to receive any and all Workout Fees payable in
respect of (i) any Mortgage Loans serviced by it that became Corrected Mortgage
Loans during the period that it acted as Special Servicer and that were still
Corrected Mortgage Loans at the time of such termination or resignation and (ii)
unless the Special Servicer was terminated for cause (in which case only (i)
shall apply), any Specially Serviced Mortgage Loans for which such Special
Servicer has resolved the circumstances and/or conditions causing any such
Mortgage Loan to be a Specially Serviced Mortgage Loan such that the related
Borrower has made at least one timely Monthly Payment as of the date of such
termination or resignation and such Mortgage Loan otherwise meets the
requirements of a Corrected Mortgage Loan, with the Workout Fee with respect to
such Mortgage Loan payable only after such requirements have been satisfied;
provided, however, that (A) in either case no other event has occurred as of the
time of such Special Servicer's termination or resignation that would otherwise
cause such Mortgage Loan to again become a Specially Serviced Mortgage Loan and
(B) in the case of any Specially Serviced Mortgage Loan described in clause (ii)
of this sentence, the terminated Special Servicer shall immediately deliver the
related Servicing File to the applicable Master Servicer, and the applicable
Master Servicer shall (without further compensation) monitor that all conditions
precedent to such Mortgage Loan's becoming a Corrected Mortgage Loan are
satisfied and, further, shall immediately transfer such Servicing File to the
new applicable Special Servicer if and when it becomes apparent to the
applicable Master Servicer that such conditions precedent will not be satisfied.
As further compensation for its activities hereunder, the applicable
Special Servicer shall also be entitled to receive a Liquidation Fee with
respect to each Specially Serviced Mortgage Loan or REO Property thereto as to
which it receives any full, partial or discounted payoff from the related
Borrower and each Specially Serviced Mortgage Loan and REO Property, if any, as
to which it receives any Condemnation Proceeds, Insurance Proceeds or
Liquidation Proceeds (other than in connection with (A) the purchase of any such
Specially Serviced Mortgage Loan by the General Special Servicer, the RREEF
Textron B-Note Holder or the Majority Controlling Class Certificateholder(s)
pursuant to Section 3.18 or Section 3.28, (B) the purchase of any such Specially
Serviced Mortgage Loan or REO Property by any Controlling Class
Certificateholder(s), a
-205-
Master Servicer or the General Special Servicer pursuant to Section 9.01 or (C)
the repurchase or replacement of any such Specially Serviced Mortgage Loan or
REO Property by a Pooled Mortgage Loan Seller pursuant to the related Pooled
Mortgage Loan Purchase Agreement as a result of a Material Breach or Material
Document Defect. As to each such Specially Serviced Mortgage Loan or REO
Property, the Liquidation Fee shall be payable out of, and shall be calculated
by application of the Liquidation Fee Rate to, any such full, partial or
discounted payoff, Condemnation Proceeds, Insurance Proceeds and/or Liquidation
Proceeds received or collected in respect thereof (other than any portion of
such payment or proceeds that represents Post-ARD Additional Interest, Default
Charges, a Prepayment Premium or a Yield Maintenance Charge); provided that,
unless the applicable Special Servicer reasonably determines that they will not
ultimately be collectable out of collections on or with respect to the RREEF
Textron B-Note Mortgage Loan or any successor REO Mortgage Loan, any Liquidation
Fees earned by the RREEF Textron Special Servicer with respect to the RREEF
Textron Pooled Mortgage Loan or any successor REO Pooled Mortgage Loan shall be
paid out of the RREEF Textron B-Note Account pursuant to Section 3.05(f). The
Liquidation Fee with respect to any such Specially Serviced Mortgage Loan will
not be payable if such Specially Serviced Mortgage Loan becomes a Corrected
Mortgage Loan.
A Special Servicer's right to receive any Special Servicing Fee,
Workout Fee and/or Liquidation Fee to which it is entitled may not be
transferred in whole or in part except in connection with the transfer of all of
such Special Servicer's responsibilities and obligations under this Agreement
and except as otherwise expressly provided herein.
(d) The applicable Special Servicer shall be entitled to receive the
following items as additional special servicing compensation (the following
items, collectively, the "Additional Special Servicing Compensation"):
(i) any and all Net Default Charges (which shall be payable in (and not
prior to) the Collection Period in which they are actually collected with
respect to any Mortgage Loan) and accrued during the period when such
Mortgage Loan was a Specially Serviced Mortgage Loan; and any and all
assumption fees, assumption application fees, modification fees, extension
fees, consent fees, release fees, waiver fees, fees paid in connection with
defeasance and earn-out fees or other similar fees (excluding Prepayment
Premiums and Yield Maintenance Charges), to the extent actually collected
during the related Collection Period with respect to Mortgage Loans that
are Specially Serviced Mortgage Loans or any REO Mortgage Loans for which
it is the applicable Special Servicer;
-206-
(ii) 50% of any assumption fees, modification fees, extension fees,
consent fees, release fees, waiver fees, fees paid in connection with
defeasance and earn-out fees or other similar fees (excluding Prepayment
Premiums and Yield Maintenance Charges), in each case to the extent
actually collected during the related Collection Period with respect to
Mortgage Loans that are not Specially Serviced Mortgage Loans or REO
Mortgage Loans for which it is the applicable Special Servicer in
connection with a consent, approval or other action that the applicable
Master Servicer is not permitted to take in the absence of the consent or
approval (or deemed consent or approval) of the applicable Special Servicer
under the other provisions of this Agreement; and
(iii) interest or other income earned on deposits in any REO Account
maintained by such Special Servicer, in accordance with Section 3.06(b)
(but only to the extent of the Net Investment Earnings, if any, with
respect to such REO Account for each Collection Period).
To the extent that any of the amounts described in clauses (i) and (ii)
of the preceding paragraph are collected by a Master Servicer, such Master
Servicer shall promptly pay such amounts to the applicable Special Servicer and
shall not be required to deposit such amounts in such Master Servicer's
Collection Account pursuant to Section 3.04(a) or the RREEF Textron B-Note
Account pursuant to Section 3.07(c).
(e) Each of the Master Servicers and the Special Servicers shall be
required (subject to Section 3.11(h) below) to pay out of its own funds all
expenses incurred by it in connection with its servicing activities hereunder
(including payment of any amounts due and owing to any of Sub-Servicers retained
by it (including any termination fees) and the premiums for any blanket policy
or the standby fee or similar premium, if any, for any master force placed
policy obtained by it insuring against hazard losses pursuant to Section
3.07(b)), if and to the extent such expenses are not payable directly out of any
Collection Account, the RREEF Textron B-Note Account, Servicing Account, Reserve
Account or REO Account, and none of the Master Servicers or the Special
Servicers shall be entitled to reimbursement for any such expense incurred by it
except as expressly provided in this Agreement. If either Master Servicer is
required to make any Servicing Advance hereunder at the discretion of a Special
Servicer in accordance with Section 3.19 or otherwise, such Special Servicer
shall promptly provide such Master Servicer with such documentation regarding
the subject Servicing Advance as such Master Servicer may reasonably request.
-207-
(f) If a Master Servicer or, as contemplated by Section 3.19(b), a
Special Servicer is required under this Agreement to make a Servicing Advance,
but fails to do so within ten (10) days after such Advance is required to be
made, the Trustee shall, if it has actual knowledge of such failure on the part
of such Master Servicer or such Special Servicer, as the case may be, give
notice of such failure to the defaulting party. If such Advance is not made by
such Master Servicer or such Special Servicer within three Business Days after
receipt of such notice, then (subject to Section 3.11(h) below) the Trustee (or,
if the Trustee fails to make such Advance, the Fiscal Agent) shall make such
Advance. If the Fiscal Agent makes any such Servicing Advance, the Trustee shall
be deemed not to be in default under this Agreement for failing to do so.
(g) Each Master Servicer, each Special Servicer, the Trustee and the
Fiscal Agent shall each be entitled to receive interest at the Reimbursement
Rate in effect from time to time, accrued on the amount of each Servicing
Advance made thereby (with its own funds), for so long as such Servicing Advance
is outstanding. Such interest with respect to any Servicing Advances shall be
payable: (i) first, in accordance with Sections 3.05 and 3.26, out of any
Default Charges subsequently collected on or in respect of the particular
Mortgage Loan or REO Mortgage Loan as to which such Servicing Advance relates;
and (ii) then, after such Servicing Advance is reimbursed, but only if and to
the extent that such Default Charges are insufficient to cover such Advance
Interest, out of general collections on the Mortgage Loans and REO Properties on
deposit in the applicable Master Servicer's Collection Account (provided that
such Advance Interest on any Servicing Advances with respect to the RREEF
Textron Mortgage Loan Pair or any related REO Property shall be payable out of
the RREEF Textron B-Note Account, as contemplated by Section 3.05(f), and only
if and to the extent that any such Advance Interest is reasonably determined by
the party entitled thereto not to be ultimately payable out of amounts
collectible on the RREEF Textron B-Note Mortgage Loan or any successor REO
Mortgage Loan shall it be payable out of the Collection Account in accordance
with Section 3.05(a)). The applicable Master Servicer shall reimburse itself,
the applicable Special Servicer, the Trustee or the Fiscal Agent, as
appropriate, for any Servicing Advance made by any such Person with respect to
any Mortgage Loan or REO Property as to which such Master Servicer is the
applicable Master Servicer as soon as practicable after funds available for such
purpose are deposited in such Master Servicer's Collection Account or the RREEF
Textron B-Note Account, as applicable.
(h) Notwithstanding anything to the contrary set forth herein, none of
the Master Servicers, the Special Servicers, the Trustee or the Fiscal Agent
shall be required to make any Servicing Advance that would, if made,
-208-
constitute a Nonrecoverable Servicing Advance. The determination by any Person
with an obligation hereunder to make Servicing Advances that it has made a
Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if
made, would constitute a Nonrecoverable Servicing Advance, shall be made by such
Person in its sole discretion exercised in good faith and shall be evidenced by
an Officer's Certificate delivered promptly to the Depositor, the Certificate
Administrator, the Trustee (unless it is the Person making such determination)
and the Controlling Class Representative and, if affected, the RREEF Textron
B-Note Holder, setting forth the basis for such determination, accompanied by a
copy of any Appraisal of the related Mortgaged Property or REO Property
performed within the 12 months preceding such determination, and further
accompanied by any other information, including engineers' reports,
environmental surveys or similar reports, that such Person may have obtained and
that support such determination. Notwithstanding the foregoing, the Trustee and
the Fiscal Agent shall be entitled to conclusively rely on any determination of
nonrecoverability that may have been made by the applicable Master Servicer or
Special Servicer with respect to a particular Servicing Advance for any Mortgage
Loan or REO Property, and the applicable Master Servicer and the applicable
Special Servicer shall each be entitled to conclusively rely on any
determination of nonrecoverability that may have been made by the other such
party with respect to a particular Servicing Advance for any Mortgage Loan or
REO Property. A copy of any such Officer's Certificate (and accompanying
information) of a Master Servicer shall also be delivered promptly to the
applicable Special Servicer for the subject Mortgage Loan or REO Property, a
copy of any such Officer's Certificate (and accompanying information) of the
applicable Special Servicer shall also be promptly delivered to the Master
Servicer for the subject Mortgage Loan or REO Property, and a copy of any such
Officer's Certificates (and accompanying information) of the Trustee or the
Fiscal Agent shall also be promptly delivered to the Certificate Administrator,
the Controlling Class Representative, the applicable Special Servicer and the
Master Servicer for the subject Mortgage Loan or REO Property.
(i) Notwithstanding anything to the contrary set forth herein, the
applicable Master Servicer may (and, at the direction of the Special Servicer if
a Specially Serviced Mortgage Loan or an REO Property is involved, shall) pay
directly out of such Master Servicer's Collection Account and/or (in the case of
the RREEF Textron Mortgage Loan Pair or any related REO Property) the RREEF
Textron B-Note Account any servicing expense that, if paid by the applicable
Master Servicer or Special Servicer, would constitute a Nonrecoverable Servicing
Advance for the subject Mortgage Loan or REO Property; provided that (A) the
applicable Master Servicer (or the Special
-209-
Servicer, if a Specially Serviced Mortgage Loan or an REO Property is involved)
has determined in accordance with the Servicing Standard that making such
payment is in the best interests of the Certificateholders and, if applicable,
the RREEF Textron B-Note Holder (as a collective whole), as evidenced by an
Officer's Certificate delivered promptly to the Depositor, the Certificate
Administrator, the Trustee and the Controlling Class Representative and, if
affected, the RREEF Textron B-Note Holder, setting forth the basis for such
determination and accompanied by any information that such Person may have
obtained that supports such determination; and (B) if such servicing expense
relates to the RREEF Textron Mortgage Loan Pair, the applicable Master Servicer
shall not pay such servicing expense from such Master Servicer's Collection
Account except to the extent that amounts on deposit in the RREEF Textron B-Note
Account are insufficient for such payment. A copy of any such Officer's
Certificate (and accompanying information) of a Master Servicer shall also be
delivered promptly to the Controlling Class Representative and the applicable
Special Servicer, and a copy of any such Officer's Certificate (and accompanying
information) of the Special Servicer shall also be promptly delivered to the
applicable Master Servicer and the Controlling Class Representative.
SECTION 3.12. Property Inspections; Collection of Financial
Statements.
(a) The applicable Special Servicer shall perform or cause to be
performed a physical inspection of a Mortgaged Property securing a Mortgage Loan
as soon as practicable (but in any event not later than 60 days) after the
related Mortgage Loan becomes a Specially Serviced Mortgage Loan (and, in cases
where the related Mortgage Loan has become a Specially Serviced Mortgage Loan,
the Special Servicer shall continue to perform or cause to be performed a
physical inspection of the subject Mortgaged Property at least once per calendar
year thereafter for so long as the related Mortgage Loan remains a Specially
Serviced Mortgage Loan or if such Mortgaged Property becomes an REO Property);
provided that the applicable Special Servicer shall be entitled to reimbursement
of the reasonable and direct out-of-pocket expenses incurred by it in connection
with each such inspection as Servicing Advances and otherwise as contemplated by
Section 3.05(a). Beginning in 2003, the applicable Master Servicer shall at its
expense perform or cause to be performed an inspection of the Mortgaged Property
securing each Mortgage Loan at least once per calendar year (or, in the case of
each Pooled Mortgage Loan with an unpaid principal balance of under $2,000,000,
provided that the Controlling Class Representative has consented to such lesser
frequency, once every two years), if the Special Servicer has not already done
so during that period pursuant to the preceding sentence. Each of the Master
Servicers and the Special Servicers shall prepare (and,
-210-
promptly following preparation, if there has been a material adverse change in
the condition of the subject Mortgaged Property or REO Property, as applicable),
deliver to or make available (on such Master Servicer's or Special Servicer's
internet website) to the Trustee, the Controlling Class Representative and the
applicable Master Servicer or Special Servicer (and, if applicable, the RREEF
Textron B-Note Holder), and the Rating Agencies) a written report of each such
inspection performed by it or on its behalf that sets forth in detail the
condition of the subject Mortgaged Property and that specifies the occurrence or
existence of: (i) any vacancy in the Mortgaged Property that is, in the
reasonable judgment of the Master Servicer or Special Servicer (or their
respective designees), as the case may be, material and is evident from such
inspection, (ii) any abandonment of the Mortgaged Property, (iii) any change in
the condition or value of the Mortgaged Property that is, in the reasonable
judgment of the Master Servicer or Special Servicer (or their respective
designees), as the case may be, material and is evident from such inspection,
(iv) any waste on or deferred maintenance in respect of the Mortgaged Property
that is evident from such inspection or (v) any capital improvements made that
are evident from such inspection. Such report may be in the form of the standard
property inspection report (or such other form for the presentation of such
information) as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally. Each of the Master Servicers and the
Special Servicers shall deliver to the Controlling Class Representative and if
applicable, the RREEF Textron B-Note Holder and, upon request, to the
Certificate Administrator and the Trustee a copy (or image in suitable
electronic media) of each such written report prepared by it, in each case
within 30 days following the request (or, if later or if request is not
required, within 30 days following the later of completion of the related
inspection if the inspection is performed by the applicable Master Servicer or
Special Servicer, as appropriate, or receipt of the related inspection report if
the inspection is performed by a third party). The copy of each such inspection
report that is delivered by a Master Servicer or Special Servicer to the
Controlling Class Representative shall be imaged with the ARCap Naming
Convention for Electronic File Delivery.
(b) Commencing with respect to the calendar quarter ended December 31,
2002, the applicable Special Servicer, in the case of any Specially Serviced
Mortgage Loan, and the applicable Master Servicer, in the case of each other
Mortgage Loan, shall make reasonable efforts to collect promptly from each
related Borrower quarterly and annual operating statements, budgets and rent
rolls of the related Mortgaged Property, and quarterly and annual financial
statements of such Borrower, whether or not delivery of such items is required
pursuant to the terms of the related Mortgage Loan Documents. In addition, the
applicable
-211-
Special Servicer shall cause quarterly and annual operating statements, budgets
and rent rolls to be regularly prepared in respect of each REO Property and
shall collect all such items promptly following their preparation. The
applicable Special Servicer shall deliver images in suitable electronic media
(and labeled according to the ARCap Naming Convention for Electronic File
Delivery) of all of the foregoing items so collected or obtained by it to the
applicable Master Servicer, the Controlling Class Representative (provided that,
if the RREEF Textron Special Servicer is delivering such items, it shall deliver
such items to the applicable Master Servicer, which shall deliver them to the
Controlling Class Representative, and the RREEF Textron B-Note Holder) within 30
days of its receipt thereof.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicers and the Special Servicers shall deliver to
the Trustee, the Certificate Administrator, the Depositor, the Underwriter and
the Controlling Class Representative, on or before May 1 of each year, beginning
in 2003, an Officer's Certificate (the "Annual Performance Certification")
stating, as to the signer thereof, that (i) a review of the activities of such
Master Servicer or such Special Servicer, as the case may be, during the
preceding calendar year and of its performance under this Agreement has been
made under such officer's supervision, (ii) to the best of such officer's
knowledge, based on such review, such Master Servicer or such Special Servicer,
as the case may be, has fulfilled all of its obligations under this Agreement in
all material respects throughout such year (or, if there has been a default in
the fulfillment of any such obligation, specifying each such default known to
such officer and the nature and status thereof), and (iii) such Master Servicer
or such Special Servicer, as the case may be, has received no notice regarding
the qualification, or challenging the status, of any REMIC Pool as a REMIC or
either Grantor Trust Pool as a Grantor Trust from the IRS or any other
governmental agency or body (or, if it has received any such notice, specifying
the details thereof); provided that each of the Master Servicers and the Special
Servicers shall be required to deliver its Annual Performance Certification by
March 15 in 2003 or in any given year thereafter if it has received written
confirmation from the Trustee or the Depositor by January 31 of that year that
an Annual Report on Form 10-K is required to be filed in respect of the Trust
for the preceding calendar year. Promptly after its receipt of each Annual
Performance Certification from a Master Servicer or a Special Servicer, the
Depositor shall review such Annual Performance Certification and, if applicable,
consult with the applicable Master Servicer or the applicable Special Servicer
(as the case may be) as to the nature of any defaults by such Master Servicer or
such Special Servicer
-212-
in the fulfillment of any of such Master Servicer's or Special Servicer's
obligations.
SECTION 3.14. Reports by Independent Public Accountants.
On or before May 1 of each year, beginning in 2003, each of the Master
Servicers and the Special Servicers, at its expense, shall cause a firm of
independent public accountants that is a member of the American Institute of
Certified Public Accountants to furnish a statement (the "Annual Accountants'
Report") to the Trustee, the Certificate Administrator, the Depositor, the
Underwriter and the Controlling Class Representative, to the effect that such
firm has examined the servicing operations of such Master Servicer or such
Special Servicer, as the case may be, for the previous calendar year and that,
on the basis of such examination, conducted substantially in compliance with
USAP, such firm confirms that such Master Servicer or such Special Servicer, as
the case may be, has complied during such previous calendar year with the
minimum servicing standards (to the extent applicable to commercial and
multifamily mortgage loans) identified in USAP in all material respects, except
for such significant exceptions or errors in records that, in the opinion of
such firm, USAP requires it to report; provided that each of the Master
Servicers and the Special Servicers shall be required to cause the delivery of
its Annual Accountants' Report by March 15 in 2003 or in any given year
thereafter if it has received written confirmation from the Trustee or the
Depositor by January 31 of that year that an Annual Report on Form 10-K is
required to be filed in respect of the Trust for the preceding calendar year. In
rendering its report such firm may rely, as to matters relating to the direct
servicing of securitized commercial and multifamily mortgage loans by
sub-servicers, upon comparable reports of firms of independent certified public
accountants rendered on the basis of examinations conducted in accordance with
the same standards (rendered within one year of such report) with respect to
those sub-servicers. Promptly after its receipt of each Annual Accountants'
Report from a Master Servicer or a Special Servicer, the Depositor shall review
such report and, if applicable, consult with the applicable Master Servicer or
the applicable Special Servicer (as the case may be) as to the nature of any
defaults by such Master Servicer or such Special Servicer in the fulfillment of
any of such Master Servicer's or Special Servicer's obligations.
SECTION 3.15. Access to Information.
(a) Each of the Master Servicers and the Special Servicers shall afford
to the OTS, the FDIC, any other banking or insurance regulatory authority that
may exercise authority over any Certificateholder or Certificate Owner, the
Certificate Administrator, the Trustee, the Fiscal Agent, the Depositor,
-213-
each Underwriter, each Rating Agency, the Controlling Class Representative and
(in the case of the applicable Master Servicer for the RREEF Textron Mortgage
Loan Pair and the RREEF Textron Special Servicer) the RREEF Textron B-Note
Holder, access to any records regarding the Mortgage Loans and the servicing
thereof within its control, except to the extent it is prohibited from doing so
by applicable law, the terms of the related Mortgage Loan Documents or contract
entered into prior to the Closing Date or to the extent such information is
subject to a privilege under applicable law to be asserted on behalf of the
Certificateholders. At the election of the applicable Master Servicer, such
access may be afforded to the Certificate Administrator, the Trustee, the Fiscal
Agent, the Depositor, each Rating Agency, the Controlling Class Representative
and (in the case of the applicable Master Servicer for the RREEF Textron
Mortgage Loan Pair and the RREEF Textron Special Servicer) the RREEF Textron
B-Note Holder the by the delivery of copies of information as requested by such
Person and the applicable Master Servicer shall be permitted to require payment
of a sum sufficient to cover the reasonable out-of-pocket costs incurred by it
in making such copies (other than with respect to the Rating Agencies);
provided, however, that the applicable Master Servicer shall be entitled to
require such payment from the Controlling Class Representative in any single
calendar month only to the extent that such costs in such month exceed $100.00.
Such access shall otherwise be afforded without charge but only upon reasonable
prior written request and during normal business hours at the offices of the
particular Master Servicer or Special Servicer, as the case may be, designated
by it.
(b) In connection with providing access to information pursuant to
clause (a) of this Section 3.15, each of the Master Servicers and the Special
Servicers may (i) affix a reasonable disclaimer to any information provided by
it for which it is not the original source (without suggesting liability on the
part of any other party hereto); (ii) affix to any information provided by it a
reasonable statement regarding securities law restrictions on such information
and/or condition access to information on the execution of a reasonable
confidentiality agreement; (iii) withhold access to confidential information or
any intellectual property; and (iv) withhold access to items of information
contained in the Servicing File for any Mortgage Loan if the disclosure of such
items is prohibited by applicable law or the provisions of any related Mortgage
Loan Documents or would constitute a waiver of the attorney-client privilege.
(c) Upon the request of the Controlling Class Representative made not
more frequently than once a month during the normal business hours of the Master
Servicers and the Special Servicers, each of the Master Servicers and the
Special Servicers shall, without charge, make a knowledgeable Servicing Officer
available either by telephone (with Servicing Officers of each the Master
-214-
Servicers and Special Servicers participating simultaneously if the Controlling
Class Representative so requests) or, at the option of the Controlling Class
Representative if it provides reasonable advance notice, at the office of such
Servicing Officer, to verbally answer questions from the Controlling Class
Representative regarding the performance and servicing of the Mortgage Loans
and/or REO Properties for which such Master Servicer or such Special Servicer,
as the case may be, is responsible.
(d) Notwithstanding any provision of this Agreement to the contrary,
the failure of a Master Servicer or Special Servicer to disclose any information
otherwise required to be disclosed by it pursuant to this Agreement shall not
constitute a breach of this Agreement the extent that such Master Servicer or
such Special Servicer, as the case may be, determines, in its reasonable and
good faith judgment, that such disclosure would violate applicable law or any
provision of a Mortgage Loan Document prohibiting disclosure of information with
respect to the Mortgage Loans or the Mortgaged Properties, constitute a waiver
of the attorney-client privilege on behalf of the Trust or the Trust Fund or
otherwise materially harm the Trust or the Trust Fund.
(e) None of the Master Servicers or the Special Servicers shall be
liable for providing, disseminating or withholding information in accordance
with the terms of this Agreement. In addition to their other rights hereunder,
each of the Master Servicers and the Special Servicers (and their respective
employees, attorneys, officers, directors and agents) shall be indemnified by
the Trust Fund for any claims, losses or expenses arising from any such
provision, dissemination or withholding.
SECTION 3.16. Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or certificate
of sale shall be issued to the Trustee or its nominee, on behalf of the
Certificateholders (and, in the case of the RREEF Textron Mortgaged Property,
also the RREEF Textron B-Note Holder), or, subject to Section 3.09(b), to a
single member limited liability company of which the Trust is the sole member,
which limited liability company is formed or caused to be formed by the
applicable Special Servicer at the expense of the Trust (in the case of an REO
Property related to Mortgage Loan other than the RREEF Textron Mortgage Loan) or
at the expense of the Trust and the RREEF Textron B-Note Holder (in the case of
an REO Property related to the RREEF Textron Mortgage Loan Pair; it being the
intention that the RREEF Textron B-Note Holder bear such expense prior to the
Trust) for the purpose of taking title to one or more REO Properties pursuant to
this Agreement. Any such limited liability company formed by the
-215-
applicable Special Servicer shall be a manager-managed limited liability
company, with such Special Servicer to serve as the initial manager to manage
the property of the limited liability company, including any applicable REO
Property, in accordance with the terms of this Agreement as if such property was
held directly in the name of the Trust or Trustee under this Agreement. The
applicable Special Servicer shall sell any REO Property in accordance with
Section 3.18 by the end of the third calendar year following the year in which
the Trust acquires ownership of the related REO Property for purposes of Section
860G(a)(8) of the Code, unless such Special Servicer either (i) applies, more
than 60 days prior to the expiration of such liquidation period, and is granted
an extension of time (an "REO Extension") by the IRS to sell such REO Property
or (ii) obtains for the Trustee an Opinion of Counsel, addressed to the Trustee,
to the effect that the holding by the Trust of such REO Property subsequent to
the end of the third calendar year following the year in which such acquisition
occurred will not result in an Adverse REMIC Event with respect to any REMIC
Pool or an Adverse Grantor Trust Event with respect to either Grantor Trust
Pool. Regardless of whether the Special Servicer applies for or is granted the
REO Extension contemplated by clause (i) of the immediately preceding sentence
or obtains the Opinion of Counsel referred to in clause (ii) of such sentence,
such Special Servicer shall act in accordance with the Servicing Standard to
liquidate the subject REO Property on a timely basis. If such Special Servicer
is granted such REO Extension or obtains such Opinion of Counsel with respect to
any REO Property, such Special Servicer shall (i) promptly forward a copy of
such REO Extension or Opinion of Counsel to the Trustee, and (ii) sell subject
REO Property within such extended period as is permitted by such REO Extension
or contemplated by such Opinion of Counsel, as the case may be. Any expense
incurred by a Special Servicer in connection with its applying for and being
granted the REO Extension contemplated by clause (i) of the third preceding
sentence or its obtaining the Opinion of Counsel contemplated by clause (ii) of
the third preceding sentence, and for the creation of and the operating of a
limited liability company, shall be covered by, and be reimbursable as, a
Servicing Advance.
(b) The applicable Special Servicer shall segregate and hold all funds
collected and received by it in connection with any REO Property separate and
apart from its own funds and general assets. If any REO Acquisition occurs in
respect of any Mortgaged Property, then the applicable Special Servicer shall
establish and maintain one or more accounts (collectively, an "REO Account"), to
be held on behalf of the Trustee in trust for the benefit of the
Certificateholders (in the case of an REO Property related to a Mortgage Loan
other than the RREEF Textron Mortgage Loan Pair) or the Certificateholders and
the RREEF
-216-
Textron B-Note Holder (in the case of an REO Property related to the RREEF
Textron Mortgage Loan Pair), in either case as a collective whole, for the
retention of revenues and other proceeds derived from such REO Property. Each
account that constitutes an REO Account shall be an Eligible Account. The
applicable Special Servicer shall deposit, or cause to be deposited, in its REO
Account, within one Business Day following receipt, all REO Revenues, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds, Insurance Proceeds
and/or Condemnation Proceeds, if any, received in respect of an REO Property.
Funds in an REO Account may be invested in Permitted Investments in accordance
with Section 3.06. The applicable Special Servicer is authorized to pay out of
related Liquidation Proceeds any Liquidation Expenses incurred in respect of an
REO Property and outstanding at the time such proceeds are received, as well as
any other items that otherwise may be paid by the applicable Master Servicer out
of such Liquidation Proceeds as contemplated by Section 3.05(a). The applicable
Special Servicer shall be entitled to make withdrawals from its REO Account to
pay itself, as Additional Special Servicing Compensation, interest and
investment income earned in respect of amounts held in such REO Account as
provided in Section 3.06(b) (but only to the extent of the Net Investment
Earnings, if any, with respect to such REO Account for any Collection Period).
The applicable Special Servicer shall give notice to the other parties hereto of
the location of its REO Account when first established and of the new location
of its REO Account prior to any change thereof.
(c) The applicable Special Servicer shall withdraw from its REO Account
funds necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit in
such REO Account relating to such REO Property. Monthly within two (2) Business
Days following the end of each Collection Period, the Special Servicer shall
withdraw from its REO Account and deposit into the applicable Master Servicer's
Collection Account (or, to the extent that such amounts are allocable to the REO
Mortgage Loan that was the RREEF Textron B-Note Mortgage Loan, into the RREEF
Textron B-Note Account), or deliver to the applicable Master Servicer for
deposit into such Collection Account (or, to the extent that such amounts are
allocable to the REO Mortgage Loan that was the RREEF Textron B-Note Mortgage
Loan, into the RREEF Textron B-Note Account), the aggregate of all amounts
received in respect of each REO Property during such Collection Period that are
then on deposit in such REO Account, net of any withdrawals made out of such
amounts pursuant to the preceding sentence; provided that, in the case of each
REO Property, the applicable Special Servicer may retain in its REO Account such
portion of such proceeds and collections as may be necessary to maintain a
reserve of sufficient funds for the proper operation, management, leasing,
maintenance and disposition of such REO
-217-
Property (including the creation of a reasonable reserve for repairs,
replacements, necessary capital improvements and other related expenses), such
reserve not to exceed an amount sufficient to cover such items reasonably
expected to be incurred during the following 12-month period. For the avoidance
of doubt, any such amounts withdrawn from an REO Account and deposited into the
applicable Master Servicer's Collection Account following the end of each
Collection Period pursuant to the preceding sentence shall, upon such deposit,
be construed to have been received by the applicable Master Servicer during such
Collection Period.
(d) Each Special Servicer shall keep and maintain separate records, on
a property-by-property basis, for the purpose of accounting for all deposits to,
and withdrawals from, its REO Account pursuant to Section 3.16(b) or 3.16(c).
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition of title to any Mortgaged Property
securing a defaulted Mortgage Loan, the applicable Special Servicer shall review
the operation of such Mortgaged Property and determine the nature of the income
that would be derived from such property if it were acquired by the Trust. If
the applicable Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged Property
would be subject to tax as "net income from foreclosure property" within
the meaning of the REMIC Provisions or to the tax imposed on "prohibited
transactions" under Section 860F of the Code (either such tax referred to
herein as an "REO Tax"), then such Mortgaged Property may be Directly
Operated by the such Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property
could result in income from such property that would be subject to an REO
Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor
with respect to such property, or another method of operating such property
would not result in income subject to an REO Tax, then such Special
Servicer may (provided that in the judgment of such Special Servicer,
exercised in accordance with the Servicing Standard, it is commercially
reasonable) so lease or otherwise operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such property
as REO Property could result in income subject to an REO Tax and that no
commercially reasonable means exists to operate such property as REO
Property without the Trust incurring or possibly incurring an REO Tax on
income from such property, then such Special Servicer shall
-218-
deliver to the Tax Administrator and the Controlling Class Representative,
in writing, a proposed plan (the "Proposed Plan") to manage such property
as REO Property. Such plan shall include potential sources of income and
good faith estimates of the amount of income from each such source. Within
a reasonable period of time after receipt of such plan, the Tax
Administrator shall consult with the Special Servicer and shall advise such
Special Servicer of the Trust's federal income tax reporting position with
respect to the various sources of income that the Trust would derive under
the Proposed Plan. In addition, the Tax Administrator shall (to the maximum
extent reasonably possible and at a reasonable fee, which fee shall be an
expense of the Trust) advise such Special Servicer of the estimated amount
of taxes that the Trust would be required to pay with respect to each such
source of income. After receiving the information described in the two
preceding sentences from the Tax Administrator, such Special Servicer shall
either (A) implement the Proposed Plan (after acquiring the respective
Mortgaged Property as REO Property) or (B) manage and operate such property
in a manner that would not result in the imposition of an REO Tax on the
income derived from such property.
Subject to Section 3.17(b), the applicable Special Servicer's decision
as to how each REO Property shall be managed and operated shall be in accordance
with the Servicing Standard. Neither the applicable Special Servicer nor the Tax
Administrator shall be liable to the Certificateholders, the Trustee, the Trust,
the other parties hereto or each other for errors in judgment made in good faith
in the exercise of their discretion while performing their respective
responsibilities under this Section 3.17(a) with respect to any REO Property.
Nothing in this Section 3.17(a) is intended to prevent the sale of any REO
Property pursuant to the terms and subject to the conditions of Section 3.18.
(b) If title to any REO Property is acquired, the applicable Special
Servicer shall manage, conserve, protect and operate such REO Property for the
benefit of the Certificateholders (in the case of an REO Property related to a
Mortgage Loan other than the RREEF Textron Mortgage Loan Pair) or the
Certificateholders and the RREEF Textron B-Note Holder (in the case of an REO
Property related to the RREEF Textron Mortgage Loan Pair), in either case as a
collective whole, solely for the purpose of its prompt disposition and sale in
accordance with Section 3.18, in a manner that does not cause such REO Property
to fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code or, except as contemplated by Section 3.17(a), result in
the receipt by any REMIC Pool of any "income from non-permitted assets" within
the meaning of Section 860F(a)(2)(B) of the Code, in an Adverse REMIC Event with
respect to any REMIC Pool or in an Adverse Grantor Trust Event with
-219-
respect to either Grantor Trust Pool. Except as contemplated by Section 3.17(a),
the applicable Special Servicer shall not enter into any lease, contract or
other agreement with respect to any REO Property that causes the Trust to
receive, and (unless required to do so under any lease, contract or agreement to
which the applicable Special Servicer or the Trust may become a party or
successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other
similar exercise of a creditor's rights or remedies with respect to the related
Mortgage Loan) shall not, with respect to any REO Property, cause or allow the
Trust to receive, any "net income from foreclosure property" that is subject to
taxation under the REMIC Provisions. Subject to the foregoing, however, the
applicable Special Servicer shall have full power and authority to do any and
all things in connection with the administration of any REO Property, as are
consistent with the Servicing Standard and, consistent therewith, shall withdraw
from its REO Account , to the extent of amounts on deposit therein with respect
to such REO Property, funds necessary for the proper operation, management,
maintenance and disposition of such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all other costs and expenses necessary to maintain, lease, sell,
protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the applicable Special Servicer's REO
Account with respect to any REO Property are insufficient for the purposes
contemplated by the preceding sentence with respect to such REO Property, the
applicable Master Servicer shall, at the direction of the Special Servicer, but
subject to Section 3.19, make a Servicing Advance of such amounts as are
necessary for such purposes unless such Master Servicer or such Special Servicer
determines, in its reasonable judgment, that such advances would, if made, be
Nonrecoverable Servicing Advances; provided, however, that such Master Servicer
may in its sole discretion make any such Servicing Advance without regard to
recoverability if it is a necessary fee or expense incurred in connection with
the defense or prosecution of legal proceedings.
-220-
(c) The applicable Special Servicer may, and, if required for the REO Property
to continue to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code, shall, contract with any Independent Contractor for the
operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be expenses
of the Trust) shall be reasonable and customary in consideration of the
nature and locality of the REO Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor, in a timely manner, (A) pay all
costs and expenses incurred in connection with the operation and management
of such REO Property, including those listed in Section 3.17(b) above, and
(B) remit all related revenues collected (net of its fees and such costs
and expenses) to such Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve such Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) such Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
Each Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of such Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. To the extent the costs of any contract with any
Independent Contractor for the operation and management of any REO Property are
greater that the revenues available from such property, such excess costs shall
be covered by, and be reimbursable as, a Servicing Advance.
-221-
(d) The RREEF Textron Special Servicer shall be responsible for any REO
Property relating to the RREEF Textron Loan Pair, and the General Special
Servicer shall be responsible for all other REO Properties.
SECTION 3.18. Fair Value Option; Sale of REO Properties.
(a) The applicable Master Servicer, the Special Servicer or the Trustee
may sell or purchase, or permit the sale or purchase of, a Pooled Mortgage Loan
or REO Property only (i) on the terms and subject to the conditions set forth in
this Section 3.18, (ii) as otherwise expressly provided in or contemplated by
Sections 2.03(a) and 9.01 of this Agreement and (iii) in the case of a Mortgage
Loan with a related mezzanine loan or the RREEF Textron B Note, in connection
with a Mortgage Loan default as set forth in the related intercreditor
agreement.
(b) If any Pooled Mortgage Loan becomes a Specially Designated
Defaulted Pooled Mortgage Loan, then the General Special Servicer shall so
notify the Certificate Administrator, the Trustee, the applicable Master
Servicer, the Controlling Class Representative and the Holder(s) of the
Controlling Class (and, if the affected Pooled Mortgage Loan is the RREEF
Textron Pooled Mortgage Loan, the RREEF Textron B-Note Holder), in writing. In
addition, the General Special Servicer shall determine (in accordance with the
Servicing Standard, taking into account the considerations contemplated by the
following paragraph, but without regard to the Purchase Option provided for in
Section 3.18(c) below), and report to the Trustee, the applicable Master
Servicer, the Controlling Class Representative and the Holder(s) of the
Controlling Class (and, if the affected Pooled Mortgage Loan is the RREEF
Textron Pooled Mortgage Loan, the RREEF Textron B-Note Holder), the Fair Value
of such Mortgage Loan. The General Special Servicer's determination of the Fair
Value of any Specially Designated Defaulted Pooled Mortgage Loan shall be made
as soon as reasonably practicable, but in no event later than 30 days after the
General Special Servicer receives the requisite Appraisal or any other
third-party reports that it deems necessary to make the determination. If at any
time the General Special Servicer becomes aware of any circumstances or
conditions that have occurred or arisen with respect to any Specially Designated
Defaulted Pooled Mortgage Loan or the related Mortgaged Property subsequent to,
and that would, in the General Special Servicer's reasonable judgment,
materially affect, the General Special Servicer's most recent Fair Value
determination with respect to such Specially Designated Defaulted Pooled
Mortgage Loan, then the General Special Servicer shall redetermine (in a manner
as is permitted above, but taking into account any such new circumstances or
conditions known to the General Special Servicer), and report to the Certificate
Administrator, the Trustee, the
-222-
Controlling Class Representative (and, if the affected Pooled Mortgage Loan is
the RREEF Textron Pooled Mortgage Loan, the RREEF Textron B-Note Holder) and the
applicable Master Servicer (and the Certificate Administrator shall, in turn,
report to the Holder(s) of the Controlling Class), the updated Fair Value of the
subject Specially Designated Defaulted Pooled Mortgage Loan. In addition, if the
General Special Servicer has not accepted a bid at the Fair Value of the
Mortgage Loan, as most recently determined by the General Special Servicer,
prior to the expiration of 90 days from such determination, and thereafter the
General Special Servicer receives a bid at such Fair Value or a request from a
holder of the Purchase Option for an updated determination of the Fair Value of
the Mortgage Loan, the General Special Servicer shall redetermine (in the same
manner as provided above, but taking into account any such new circumstances or
conditions known to the General Special Servicer), and report to the Trustee,
the Certificate Administrator, the Controlling Class Representative (and, if the
affected Pooled Mortgage Loan is the RREEF Textron Pooled Mortgage Loan, the
RREEF Textron B-Note Holder) and the applicable Master Servicer (and the
Certificate Administrator shall, in turn, report to the Holder(s) of the
Controlling Class), the updated Fair Value of the subject Specially Designated
Defaulted Pooled Mortgage Loan; provided, however, that the General Special
Servicer may rely on the existing third-party information if it deems such
reliance to be reasonable.
In determining the Fair Value of any Specially Designated Defaulted
Pooled Mortgage Loan, the General Special Servicer shall take into account,
among other factors, the period and amount of the delinquency on such Mortgage
Loan, the occupancy level and physical condition of the related Mortgaged
Property, the state of the local economy in the area where the related Mortgaged
Property is located, and the time and expense associated with and the expected
recovery from a purchaser's foreclosing on the related Mortgaged Property or
working out such Mortgage Loan. In addition, the General Special Servicer shall
refer to all relevant information contained in the Servicing File, shall take
into account the most recent Appraisal obtained or conducted with respect to the
related Mortgaged Property in the preceding 12-month period in accordance with
this Agreement and shall not determine the Fair Value of any Specially
Designated Default Mortgage Loan without such an Appraisal; provided that the
General Special Servicer shall take account of any change in the circumstances
regarding or the condition of the related Mortgaged Property known to the
General Special Servicer that has occurred or arisen subsequent to, and that
would materially affect the value of the related Mortgaged Property reflected
in, such Appraisal. Furthermore, the General Special Servicer shall consider
available objective third-party information obtained from generally
-223-
available sources, as well as information obtained from vendors providing real
estate services to the General Special Servicer, concerning the market for
distressed real estate loans and the real estate market for the subject property
type in the area where the related Mortgaged Property is located. The General
Special Servicer may, to the extent it is reasonable to do so, conclusively rely
on any opinions or reports of Independent third parties in making such
determination. All reasonable costs and expenses incurred by the General Special
Servicer pursuant to this Section 3.18(b) shall constitute, and be reimbursable
as, Servicing Advances. The other parties to this Agreement shall cooperate with
all reasonable requests for information made by the General Special Servicer in
order to allow the General Special Servicer to perform its duties pursuant to
this Section 3.18(b).
(c) The Majority Controlling Class Certificateholder(s) or any assignee
thereof may, at its or their option, purchase from the Trust any Specially
Designated Defaulted Pooled Mortgage Loan (such option, the "Purchase Option"),
at a cash price (the "Option Price") equal to the Fair Value of such Mortgage
Loan (as most recently determined by the General Special Servicer and reported
to the Trustee, the Certificate Administrator, the Controlling Class
Representative and the applicable Master Servicer as provided in Section 3.18(b)
above) or, if no such Fair Value has yet been established as provided in Section
3.18(b) above or if the General Special Servicer is in the process of
redetermining such Fair Value because of a change in circumstances, equal to the
Purchase Price; provided that:
(i) the Purchase Option with respect to any Specially Designated
Defaulted Pooled Mortgage Loan will remain in effect only for the period
(the "Option Period") that commences on the date that such Mortgage Loan
first becomes a Specially Designated Defaulted Pooled Mortgage Loan and
ends on the earlier of (A) the date on which such Mortgage Loan becomes a
Corrected Mortgage Loan or otherwise ceases to be a Specially Designated
Defaulted Pooled Mortgage Loan and (B) the date on which a Liquidation
Event occurs with respect to such Mortgage Loan or the related Mortgaged
Property becomes an REO Property.
(ii) the Purchase Option with respect to any Specially Designated
Defaulted Pooled Mortgage Loan shall be assignable by the Majority
Controlling Class Certificateholder(s) during the Option Period to any
third party (provided that the parties hereto are notified in writing of
the assignment);
(iii) if the Purchase Option with respect to any Specially Designated
Defaulted Pooled Mortgage Loan is not exercised by the
-224-
Majority Controlling Class Certificateholder(s) or any assignee thereof
within 60 days after the Fair Value of such Mortgage Loan has initially
been established as provided in Section 3.18(b) above, then the Majority
Controlling Class Certificateholder(s) shall be deemed to have assigned
such Purchase Option, for a 30-day period only, to the General Special
Servicer;
(iv) during the 30-day period following the assignment to it of the
Purchase Option with respect to any Specially Designated Defaulted Pooled
Mortgage Loan, the General Special Servicer shall be entitled to exercise
such Purchase Option or to assign such Purchase Option to any third party
(provided that the other parties hereto are notified in writing of the
assignment);
(v) if the Purchase Option with respect to any Specially Designated
Defaulted Pooled Mortgage Loan is not exercised by the General Special
Servicer or its assignee within the 30-day period following the assignment
of such Purchase Option to the General Special Servicer as contemplated by
clause (iii) above, then such Purchase Option will automatically revert to
the Majority Controlling Class Certificateholder(s); and
(vi) prior to any exercise of the Purchase Option with respect to any
Specially Designated Defaulted Pooled Mortgage Loan by the General Special
Servicer or any Affiliate or assignee thereof, subject to the following
paragraph, the applicable Master Servicer shall confirm and report to the
Trustee, the Certificate Administrator and the General Special Servicer
(or, if the applicable Master Servicer and the General Special Servicer are
the same Person or Affiliates, the Trustee, upon reasonable notice, shall
confirm and report to the General Special Servicer) that the General
Special Servicer's determination of the Fair Value of such Mortgage Loan is
consistent with or greater than what the applicable Master Servicer (or, if
applicable, the Trustee) considers to be the Fair Value of such Mortgage
Loan; provided that the General Special Servicer may revise any such Fair
Value determination that is rejected by the applicable Master Servicer (or,
if applicable, the Trustee).
Notwithstanding anything contained in clause (vi) of the preceding
paragraph to the contrary, if the applicable Master Servicer or the Trustee is
required to confirm or reject the General Special Servicer's Fair Value
determination as contemplated by such clause (vi), either such party may (at its
option and at the expense of the Trust Fund) designate an Independent third
party
-225-
expert in real estate or commercial mortgage loan matters with at least 5 years'
experience in valuing or investing in loans similar to the subject Specially
Designated Defaulted Pooled Mortgage Loan, that has been selected with
reasonable care by the applicable Master Servicer (or, if applicable, the
Trustee) to confirm that the General Special Servicer's Fair Value determination
as contemplated by such clause (vi) is consistent with or greater than what the
Independent third party considers to be the Fair Value of such Mortgage Loan. In
the event that the applicable Master Servicer or the Trustee, as the case may
be, designates such a third party to make such determination, the applicable
Master Servicer or the Trustee, as applicable, shall be entitled to rely upon
such third party's determination. The reasonable costs of all appraisals,
inspection reports and broker opinions of value, incurred by such Master
Servicer, the Trustee or any such third party pursuant to this paragraph or
clause (vi) of the preceding paragraph shall be advanced by the applicable
Master Servicer and shall constitute, and be reimbursable as, Servicing
Advances.
Any party entitled to do so may exercise the Purchase Option with
respect to any Specially Designated Defaulted Pooled Mortgage Loan by providing
to the Certificate Administrator, the Trustee, the applicable Master Servicer
and the General Special Servicer:
(i) written notice of its intention to purchase such Mortgage Loan at
the Option Price; and
(ii) if such party is the assignee of the General Special Servicer or
the Majority Controlling Class Certificateholder(s), evidence of its right
to exercise such Purchase Option.
The actual purchase of such Specially Designated Defaulted Pooled Mortgage Loan
shall occur (by delivery of cash in the amount of the applicable Option Price to
the General Special Servicer for deposit in the applicable Master Servicer's
Collection Account) no later than 10 days after the later of (i) such exercise
of the Purchase Option with respect to such Mortgage Loan and (ii) if
applicable, the confirmation of the General Special Servicer's Fair Value
determination with respect to such Mortgage Loan in accordance with clause (vi)
of the first paragraph of this Section 3.18(c) and/or in accordance with the
second paragraph of this Section 3.18(c).
Notwithstanding the Purchase Option provided for in this Section
3.18(c), the General Special Servicer shall proceed in respect of any Specially
Designated Defaulted Pooled Mortgage Loan in accordance with Section 3.09 and/or
Section 3.20, without regard to such Purchase Option.
-226-
(d) The applicable Special Servicer shall use its reasonable efforts,
consistent with the Servicing Standard, to solicit cash bids for each REO
Property in such manner as will be reasonably likely to realize a fair price
(determined pursuant to Section 3.18(e) below) for any REO Property within a
customary and normal time frame for the sale of comparable properties (and, in
any event, within the time period provided for by Section 3.16(a)). The
applicable Special Servicer shall accept the first (and, if multiple cash bids
are received by a specified bid date, the highest) cash bid received from any
Person that constitutes a fair price (determined pursuant to Section 3.18(e)
below) for such REO Property. If the applicable Special Servicer reasonably
believes that it will be unable to realize a fair price (determined pursuant to
Section 3.18(e) below) with respect to any REO Property within the time
constraints imposed by Section 3.16(a), then the applicable Special Servicer
shall, consistent with the Servicing Standard, dispose of such REO Property upon
such terms and conditions as it shall deem necessary and desirable to maximize
the recovery thereon under the circumstances.
The applicable Special Servicer shall give the Certificate
Administrator, the Trustee, the applicable Master Servicer and the Controlling
Class Representative not less than five (5) Business Days' prior written notice
of its intention to sell any REO Property pursuant to this Section 3.18(d). No
Pooled Mortgage Loan Seller, Certificateholder or any Affiliate of any such
Person shall be obligated to submit a bid to purchase any REO Property, and
notwithstanding anything to the contrary herein, neither the Trustee, in its
individual capacity, nor any of its Affiliates may bid for or purchase any REO
Property pursuant hereto.
(e) Whether any cash bid constitutes a fair price for any REO Property
for purposes of Section 3.18(d), shall be determined by the applicable Special
Servicer or, if such cash bid is from any Pooled Mortgage Loan Seller, any
Certificateholder or any Affiliate of any such Person, by the Trustee. In
determining whether any bid received from an any Pooled Mortgage Loan Seller,
any Certificateholder or any Affiliate of any such Person represents a fair
price for any REO Property, the Trustee shall be supplied with and shall be
entitled to rely on the most recent Appraisal in the related Servicing File
conducted in accordance with this Agreement within the preceding 12-month period
(or, in the absence of any such Appraisal or if there has been a material change
at the subject property since any such Appraisal, on a new Appraisal to be
obtained by the applicable Special Servicer, the cost of which shall be covered
by, and be reimbursable as, a Servicing Advance). The appraiser conducting any
such new Appraisal shall be a Qualified Appraiser that is (i) selected by the
applicable Special Servicer if neither the applicable Special Servicer nor any
Affiliate thereof is bidding with respect to the subject REO Property and (ii)
selected by
-227-
the Trustee if either the applicable Special Servicer or any Affiliate thereof
is so bidding. Where any any Pooled Mortgage Loan Seller, any Certificateholder
or any Affiliate of any such Person is among those bidding with respect to any
REO Property, the applicable Special Servicer shall require that all bids be
submitted to it (or, if the applicable Special Servicer or an Affiliate thereof
is bidding, be submitted to the Trustee) in writing and be accompanied by a
refundable deposit of cash in an amount equal to 5% of the bid amount. In
determining whether any bid from a Person other than any Pooled Mortgage Loan
Seller, any Certificateholder or any Affiliate of any such Person constitutes a
fair price for any REO Property, the applicable Special Servicer shall take into
account the results of any Appraisal or updated Appraisal that it or the
applicable Master Servicer may have obtained in accordance with this Agreement
within the prior twelve (12) months, as well as, among other factors, the
occupancy level and physical condition of the REO Property, the state of the
then current local economy and commercial real estate market where the REO
Property is located and the obligation to dispose of any REO Property within a
customary and normal time frame for the sale of comparable properties (and, in
any event, within the time period specified in Section 3.16(a)). The Purchase
Price for any REO Property shall in all cases be deemed a fair price.
Notwithstanding the other provisions of this Section 3.18, no cash bid from the
applicable Special Servicer or any Affiliate thereof shall constitute a fair
price for any REO Property unless such bid is the highest cash bid received and
at least two Independent bids (not including the bid of the applicable Special
Servicer or any Affiliate) have been received. In the event the bid of the
applicable Special Servicer or any Affiliate thereof is the only bid received or
is the higher of only two bids received, then additional bids shall be
solicited. If an additional bid or bids, as the case may be, are received for
any REO Property and the original bid of the applicable Special Servicer or any
Affiliate thereof is the highest of all bids received, then the bid of the
applicable Special Servicer or such Affiliate shall be accepted, provided that
the Trustee has otherwise determined, as provided above in this Section 3.18(e),
that such bid constitutes a fair price for the subject REO Property. Any bid by
the applicable Special Servicer for any REO Property shall be unconditional;
and, if accepted, the subject REO Property shall be transferred to the
applicable Special Servicer without recourse, representation or warranty other
than customary representations as to title given in connection with the sale of
a real property.
(f) Subject to Sections 3.18(a) through 3.18(e) above, the applicable
Special Servicer shall act on behalf of the Trustee in negotiating with
Independent third parties in connection with the sale of any REO Property and
taking any other action necessary or appropriate in connection with the sale of
any Specially Designated Defaulted Pooled Mortgage Loan or REO Property, and the
-228-
collection of all amounts payable in connection therewith. In connection with
the sale of any REO Property, the applicable Special Servicer may charge
prospective bidders, and may retain, fees that approximate the applicable
Special Servicer's actual costs in the preparation and delivery of information
pertaining to such sales or evaluating bids without obligation to deposit such
amounts into a Collection Account. Any sale of a Specially Designated Defaulted
Pooled Mortgage Loan or any REO Property shall be final and without recourse to
the Trustee or the Trust, and if such sale is consummated in accordance with the
terms of this Agreement, neither the applicable Special Servicer nor the Trustee
shall have any liability to any Certificateholder with respect to the purchase
price therefor accepted by the applicable Special Servicer or the Trustee.
(g) Any sale of any Specially Designated Defaulted Pooled Mortgage Loan
or REO Property shall be for cash only.
(h) The purchase price for any Specially Designated Defaulted Pooled
Mortgage Loan or REO Property sold under this Section 3.18 shall be deposited
into the applicable Master Servicer's Collection Account, and the Trustee, upon
receipt of written notice from the applicable Master Servicer to the effect that
such deposit has been made (based upon notification by the applicable Special
Servicer to such Master Servicer of the amount of the purchase price), shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be provided to it and are reasonably necessary to
vest ownership of such Mortgage Loan or REO Property in the Person who purchased
such Mortgage Loan or REO Property.
(i) Any of the RREEF Textron Pooled Mortgage Loan other than the RREEF
Textron B-Note Holder will be subject to the RREEF Textron Co-Lender Agreement.
The RREEF Textron Special Servicer will require, in connection with such a sale
of the RREEF Textron Pooled Mortgage Loan, that the purchaser assume in writing
all of the rights and obligations of the holder of the RREEF Textron Pooled
Mortgage Loan under the RREEF Textron Co-Lender Agreement.
(j) The purchase option for any Specially Serviced Mortgage Loan
pursuant to this Section 3.18 shall terminate, and shall not be exercisable as
set forth in subsections (b) and (c) above (or if exercised, but the purchase of
the subject Pooled Mortgage Loan has not yet occurred, shall terminate and be of
no further force or effect) if and when (i) the Special Servicer has accepted a
Fair Value Bid, (ii) such Specially Serviced Mortgage Loan has become a
Corrected Mortgage Loan, (iii) the related Mortgaged Property has become an REO
Property, (iv) a Final Recovery Determination has been made with respect to such
-229-
Specially Serviced Mortgage Loan or (v) alternatively but solely in the case of
the RREEF Textron Mortgage Loan Pair, the purchase option set forth in the RREEF
Textron Agreement among Noteholders is exercised.
SECTION 3.19. Additional Obligations of Master Servicers and the
Special Servicer.
(a) Within sixty (60) days (or within such longer period as the
applicable Special Servicer is (as certified thereby to the Trustee in writing)
diligently using reasonable efforts to obtain the Appraisal referred to below)
after the earliest of the date on which any Mortgage Loan (i) becomes a Modified
Mortgage Loan following the occurrence of a Servicing Transfer Event, (ii)
becomes an REO Mortgage Loan, (iii) with respect to which a receiver or similar
official is appointed and continues for 60 days in such capacity in respect of
the related Mortgaged Property, (iv) the related Borrower becomes the subject of
bankruptcy, insolvency or similar proceedings or, if such proceedings are
involuntary, sixty (60) days thereafter or (v) any Monthly Payment becomes 60
days or more delinquent and such event constitutes a Servicing Transfer Event
(each such event, an "Appraisal Trigger Event" and each such Mortgage Loan and
any related REO Mortgage Loan that is the subject of an Appraisal Trigger Event,
until it ceases to be such in accordance with the following paragraph, a
"Required Appraisal Loan"), the applicable Special Servicer shall obtain an
Appraisal of the related Mortgaged Property, unless an Appraisal thereof had
previously been received (or, if applicable, conducted) within the prior twelve
(12) months and the applicable Special Servicer has no knowledge of changed
circumstances that in the applicable Special Servicer's reasonable judgment
would materially affect the value of the Mortgaged Property. If such Appraisal
is obtained from a Qualified Appraiser, the cost thereof shall be covered by,
and be reimbursable as, a Servicing Advance, such Advance to be made at the
direction of the applicable Special Servicer when the Appraisal is received by
the applicable Special Servicer. Promptly following the receipt of, and based
upon, such Appraisal, the applicable Special Servicer, in consultation with the
Controlling Class Representative, shall determine and report to the Certificate
Administrator, the Trustee and the applicable Master Servicer the then
applicable Appraisal Reduction Amount, if any, with respect to the subject
Required Appraisal Loan. For purposes of this Section 3.19(a), an Appraisal may,
in the case of any Mortgage Loan with an outstanding principal balance of less
than $2,000,000 only, consist solely of an internal valuation performed by the
applicable Special Servicer. In the case of the RREEF Textron Mortgaged
Property, the RREEF Textron Special Servicer shall also determine and report to
the Trustee, the Master Servicer, the Controlling Class Representative and the
RREEF Textron B-Note Holder the Appraisal Reduction Amount, if any, with respect
to the RREEF
-230-
Textron Mortgage Loan Pair (calculated as if it was a single Pooled Mortgage
Loan).
A Mortgage Loan shall cease to be a Required Appraisal Loan if and
when, following the occurrence of the most recent Appraisal Trigger Event, any
and all Servicing Transfer Events with respect to such Mortgage Loan have ceased
to exist and no other Appraisal Trigger Event has occurred with respect thereto
during the preceding ninety (90) days.
For so long as any Mortgage Loan or REO Mortgage Loan remains a
Required Appraisal Loan, the applicable Special Servicer shall, within 30 days
of each anniversary of such Mortgage Loan's having become a Required Appraisal
Loan, obtain (or, if such Required Appraisal Loan has a Stated Principal Balance
of $2,000,000 or less, at the applicable Special Servicer's option, conduct) an
update of the prior Appraisal. If such update is obtained from a Qualified
Appraiser, the cost thereof shall be covered by, and be reimbursable as, a
Servicing Advance, such Advance to be made at the direction of the applicable
Special Servicer when the Appraisal is received by the applicable Special
Servicer. Promptly following the receipt of, and based upon, such update, the
applicable Special Servicer shall redetermine, in consultation with the
Controlling Class Representative, and report to the Certificate Administrator,
the Trustee and the applicable Master Servicer the then applicable Appraisal
Reduction Amount, if any, with respect to the subject Required Appraisal Loan.
Promptly following the receipt of, and based upon, such update, in the case of
the RREEF Textron Mortgaged Property, the RREEF Textron Special Servicer shall
also redetermine, and report to the Trustee, the applicable Master Servicer, the
Controlling Class Representative and the RREEF Textron B-Note Holder, the
Appraisal Reduction Amount, if any, with respect to the RREEF Textron Mortgage
Loan Pair (calculated as if it was a single Pooled Mortgage Loan).
The Controlling Class Representative and, insofar as the case of the
RREEF Textron B-Note Loan is affected, the RREEF Textron B-Note Holder, each
shall have the right at any time within six months of the date of the receipt of
any Appraisal to require that the applicable Special Servicer obtain a new
Appraisal of the subject Mortgaged Property in accordance with MAI standards, at
the expense of the Controlling Class Certificateholders or the RREEF Textron
B-Note Holder, as applicable. Upon receipt of such Appraisal the applicable
Special Servicer shall deliver a copy thereof to the Trustee, the applicable
Master Servicer, the Controlling Class Representative, any Requesting
Subordinate Certificateholder (subject to the second paragraph of Section 11.10)
and, in the case of the RREEF Textron Mortgaged Property, the RREEF Textron
B-Note Holder. Promptly following the receipt of, and based upon, such
Appraisal, the
-231-
applicable Special Servicer shall redetermine and report to the Trustee, the
Master Servicer and the Controlling Class Representative the then applicable
Appraisal Reduction Amount, if any, with respect to the subject Required
Appraisal Mortgage Loan. In the case of the RREEF Textron Mortgaged Property,
the RREEF Textron Special Servicer shall also redetermine and report to the
Trustee, the Master Servicer, the Controlling Class Representative and the RREEF
Textron B-Note Holder the Appraisal Reduction Amount, if any, with respect to
the RREEF Textron Loan Pair (calculated as if it was a single Mortgage Loan).
(b) Notwithstanding anything to the contrary contained in any other
Section of this Agreement, the applicable Special Servicer shall notify the
applicable Master Servicer whenever a Servicing Advance is required to be made
with respect to any Specially Serviced Mortgage Loan or REO Property, and, such
Master Servicer shall make such Servicing Advance; provided that the applicable
Special Servicer shall make any Servicing Advance on a Specially Serviced
Mortgage Loan or REO Property that constitutes an Emergency Advance. Each such
notice and request shall be made, in writing, not less than five Business Days
(and, to the extent reasonably practicable, at least ten Business Days) in
advance of the date on which the subject Servicing Advance is to be made and
shall be accompanied by such information and documentation regarding the subject
Servicing Advance as the applicable Master Servicer may reasonably request;
provided, however, that the applicable Special Servicer shall not be entitled to
make such a request more frequently than once per calendar month (although such
request may relate to more than one Servicing Advance). Each Master Servicer
shall have the obligation to make any such Servicing Advance (other than a
Nonrecoverable Servicing Advance) that it is so requested by the applicable
Special Servicer to make (as described above) not later than the date on which
the subject Servicing Advance is to be made, but in no event shall it be
required to make any Servicing Advance on a date that is earlier than five
Business Days following such Master Servicer's receipt such request. If the
request is timely and properly made, the requesting Special Servicer shall be
relieved of any obligations with respect to a Servicing Advance that it so
requests the applicable Master Servicer to make with respect to any Mortgage
Loan or REO Property (regardless of whether or not such Master Servicer shall
make such Servicing Advance). Each Master Servicer shall be entitled to
reimbursement for any Servicing Advance made by it at the direction of the
applicable Special Servicer, together with Advance Interest in accordance with
Sections 3.05(a) and 3.11(g), at the same time, in the same manner and to the
same extent as such Master Servicer is entitled with respect to any other
Servicing Advances made thereby.
-232-
Notwithstanding the foregoing provisions of this Section 3.19(b), a
Master Servicer shall not be required to reimburse the applicable Special
Servicer for, or to make at the direction of the applicable Special Servicer,
any Servicing Advance if such Master Servicer determines in its reasonable
judgment that such Servicing Advance, although not characterized by the
requesting Special Servicer as a Nonrecoverable Servicing Advance, is in fact a
Nonrecoverable Servicing Advance. Such Master Servicer shall notify the
requesting Special Servicer in writing of such determination and, if applicable,
such Nonrecoverable Servicing Advance shall be reimbursed to the applicable
Special Servicer pursuant to Section 3.05(a).
(c) Each Master Servicer shall deliver to the Certificate Administrator
for deposit in the Distribution Account by 1:00 p.m. (New York City time) on
each Master Servicer Remittance Date, without any right of reimbursement
therefor, a cash payment (a "Compensating Interest Payment") in an amount equal
to the aggregate amount of Prepayment Interest Shortfalls incurred in connection
with Principal Prepayments received during the most recently ended Collection
Period with respect to Pooled Mortgage Loans as to which such Master Servicer is
the applicable Master Servicer, to the extent such Prepayment Interest
Shortfalls arose from (i) voluntary Principal Prepayments made by a Borrower on
such Pooled Mortgage Loans that are not Specially Serviced Mortgage Loans or
defaulted Mortgage Loans or (ii) to the extent such Master Servicer did not
apply the proceeds thereof in accordance with the terms of the related Mortgage
Loan Documents, involuntary Principal Prepayments made on such Pooled Mortgage
Loans that are not Specially Serviced Mortgage Loans or defaulted Mortgage
Loans.
The rights of the Certificateholders to offsets of any Prepayment
Interest Shortfalls shall not be cumulative from Collection Period to Collection
Period.
(d) With respect to each Pooled Mortgage Loan that provides for
defeasance, the applicable Master Servicer shall, to the extent permitted by the
terms of such Mortgage Loan, require the related Borrower (i) to provide
replacement collateral consisting of U.S. government securities within the
meaning of Treasury regulation section 1.860G-2(a)(8)(i) in an amount sufficient
to make all scheduled payments under the Mortgage Loan (or defeased portion
thereof) when due (and assuming, in the case of an ARD Mortgage Loan, to the
extent consistent with the related Mortgage Loan Documents, that such Mortgage
Loan matures on its Anticipated Repayment Date), (ii) to deliver a certificate
from an independent certified public accounting firm certifying that the
replacement collateral is sufficient to make such payments, (iii) at the option
of
-233-
the applicable Master Servicer, to designate a single purpose entity (which may
be a subsidiary of the applicable Master Servicer established for the purpose of
assuming all defeased Mortgage Loans) to assume the Mortgage Loan (or defeased
portion thereof) and own the defeasance collateral, (iv) to implement such
defeasance only after the second anniversary of the Closing Date, (v) to provide
an Opinion of Counsel that the Trustee has a perfected, first priority security
interest in the new collateral, and (vi) in the case of a partial defeasance of
the Mortgage Loan, to defease a principal amount equal to at least 125% of the
allocated loan amount for the Mortgaged Property or Properties to be released.
If the subject Mortgage Loan has a Cut-off Date Principal Balance greater than
or equal to $20,000,000 or an outstanding principal balance greater than or
equal to 2% of the aggregate Stated Principal Balance of the Mortgage Pool or is
one of the 10 largest Mortgage Loans then in the Trust Fund, or if the terms of
the subject Mortgage Loan do not permit the applicable Master Servicer to impose
the foregoing requirements and the applicable Master Servicer does not satisfy
such requirements on its own, then the applicable Master Servicer shall so
notify the Rating Agencies and the Controlling Class Representative and, so long
as such a requirement would not violate applicable law or the Servicing
Standard, obtain a confirmation that such defeasance will not result in an
Adverse Rating Event. Subject to the related Mortgage Loan Documents and
applicable law, the applicable Master Servicer shall not permitted a defeasance
unless (i) the subject Mortgage Loan requires the Borrower to pay all Rating
Agency fees associated with defeasance (if confirmation of the absence of an
Adverse Rating Event is a specific condition precedent thereto) and all expenses
associated with defeasance or other arrangements for payment of such costs are
made at no expense to the Trust Fund or the applicable Master Servicer
(provided, however, that in no event shall such proposed other arrangements
result in any liability to the Trust Fund including any indemnification of the
applicable Master Servicer or Special Servicer which may result in legal
expenses to the Trust Fund), and (ii) the Borrower is required to provide all
Opinions of Counsel, including Opinions of Counsel that the defeasance will not
cause an Adverse REMIC Event or an Adverse Grantor Trust Event and that the
Mortgage Loan Documents are fully enforceable in accordance with their terms
(subject to bankruptcy, insolvency and similar standard exceptions), and any
applicable rating confirmations with respect to the absence of an Adverse Rating
Event.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) The RREEF Textron Special Servicer (solely as to the RREEF Textron
Mortgage Loan Pair for so long as a Servicing Transfer Event exists with respect
thereto), the General Special Servicer (solely as to any other
-234-
Specially Serviced Pooled Mortgage Loans) and the applicable Master Servicer,
solely as to a Mortgage Loan that is not a Specially Serviced Mortgage Loan, may
(consistent with the Servicing Standard) agree to any modification, waiver or
amendment of any term of, extend the maturity of, defer or forgive interest
(including Default Interest and Post-ARD Additional Interest) on and principal
of, defer or forgive late payment charges, Prepayment Premiums and Yield
Maintenance Charges on, permit the release, addition or substitution of
collateral securing, and/or permit the release, addition or substitution of the
Borrower on or any guarantor of, any Mortgage Loan for which it is the
applicable Master Servicer or Special Servicer, subject, however, to Sections
3.08 and 3.24 and, further to each of the following limitations, conditions and
restrictions:
(i) other than as expressly set forth in Section 3.02 (with respect to
Post-ARD Additional Interest and Default Charges), Section 3.08 (with
respect to due-on-sale and due-on-encumbrance clauses and transfers of
interests in Borrowers), Section 3.19(e) (with respect to defeasances),
Section 3.20(f) (with respect to Post-ARD Additional Interest) and Section
3.27 (with respect to Default Charges), the applicable Master Servicer
shall not agree to any modification, waiver or amendment of any term of, or
take any of the other acts referenced in this Section 3.20(a) with respect
to, any Mortgage Loan, that would affect the amount or timing of any
related payment of principal, interest or other amount payable under such
Mortgage Loan or materially and adversely affect the security for such
Mortgage Loan, unless such Master Servicer has obtained the consent of the
applicable Special Servicer (it being understood and agreed that (A) the
applicable Master Servicer shall promptly provide the applicable Special
Servicer with notice of any Borrower request for such modification, waiver
or amendment, the applicable Master Servicer's recommendations and
analysis, and with all information reasonably available to the applicable
Master Servicer that the applicable Special Servicer may reasonably request
in order to withhold or grant any such consent, (B) the applicable Special
Servicer shall decide whether to withhold or grant such consent in
accordance with the Servicing Standard (and subject to Section 3.24) and
(C) if any such consent has not been expressly denied within 10 Business
Days of the applicable Special Servicer's receipt from the applicable
Master Servicer of such Master Servicer's recommendations and analysis and
all information reasonably requested thereby and reasonably available to
the applicable Master Servicer in order to make an informed decision, such
consent shall be deemed to have been granted);
-235-
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(f), the
applicable Special Servicer shall not agree to (or, in the case of a
Mortgage Loan that is not a Specially Serviced Mortgage Loan, consent to
the applicable Master Servicer's agreeing to) any modification, waiver or
amendment of any term of, or take (or, in the case of a Mortgage Loan that
is not a Specially Serviced Mortgage Loan, consent to the applicable Master
Servicer's taking) any of the other acts referenced in this Section 3.20(a)
with respect to, any Mortgage Loan that would affect the amount or timing
of any related payment of principal, interest or other amount payable
thereunder or, in the reasonable judgment of the applicable Special
Servicer, would materially impair the security for such Mortgage Loan,
unless a material default on such Mortgage Loan has occurred or, in the
reasonable judgment of the applicable Special Servicer, a default in
respect of payment on such Mortgage Loan is reasonably foreseeable, and
such modification, waiver, amendment or other action is reasonably likely
to produce an equal or a greater recovery to Certificateholders and, in the
case of the RREEF Textron Mortgage Loan Pair, the RREEF Textron B-Note
Holder (as a collective whole) on a net present value basis (the relevant
discounting of anticipated collections that will be distributable to
Certificateholders and, in the case of the RREEF Textron Mortgage Loan
Pair, the RREEF Textron B-Note Holder to be done at the related Net
Mortgage Rate), than would liquidation; provided that (A) any modification,
extension, waiver or amendment of the payment terms of the RREEF Textron
Mortgage Loan Pair shall be structured so as to be consistent with the
allocation and payment priorities set forth in the related Mortgage Loan
Documents, including the RREEF Textron Co-Lender Agreement, such that
neither the Trust as holder of the RREEF Textron Pooled Mortgage Loan nor
the RREEF Textron B-Note Holder shall gain a priority over the other with
respect to any payment, which priority is not, as of the date of the RREEF
Textron Co-Lender Agreement, reflected in the related Mortgage Loan
Documents, including the RREEF Textron Co-Lender Agreement, and (B) to the
extent consistent with the Servicing Standard (taking into account the
extent to which the RREEF Textron B-Note Mortgage Loan is junior to the
RREEF Textron Pooled Mortgage Loan), (I) no waiver, reduction or deferral
of any particular amounts due on the RREEF Textron Pooled Mortgage Loan
shall be effected prior to the waiver, reduction or deferral of the entire
corresponding item in respect of the RREEF Textron B-Note Mortgage Loan,
and (II) no reduction of the Mortgage Rate of the RREEF Textron Pooled
Mortgage Loan shall be effected prior to the reduction of the Mortgage Rate
of the RREEF Textron B-Note Mortgage Loan;
-236-
(iii) the applicable Special Servicer shall not extend (or, in the case
of a Mortgage Loan that is not a Specially Serviced Mortgage Loan, consent
to the applicable Master Servicer's extending) the date on which any
Balloon Payment is scheduled to be due on any Mortgage Loan to a date
beyond the earliest of (A) two years prior to the Rated Final Distribution
Date, (B) if such Mortgage Loan is secured by a Mortgage solely or
primarily on the related Borrower's leasehold interest in the related
Mortgaged Property, 20 years (or, to the extent consistent with the
Servicing Standard, giving due consideration to the remaining term of the
Ground Lease, 10 years) prior to the end of the then current term of the
related Ground Lease (plus any unilateral options to extend), and (C) if
such Mortgage Loan is covered by an Environmental Insurance Policy, for
more than five years later than such Mortgage Loan's Stated Maturity Date,
unless either (I) the applicable Special Servicer shall have first
determined in its reasonable judgment, based upon a Phase I Environmental
Assessment (and any additional environmental testing that the applicable
Special Servicer deems necessary and prudent) conducted by an Independent
Person who regularly conducts Phase I Environmental Assessments, and at the
expense of the Borrower, that there are no circumstances or conditions
present at the related Mortgaged Property for which investigation, testing,
monitoring, containment, clean-up or remediation would be required under
any then applicable environmental laws or regulations or (II) the Borrower
obtains (at its expense) an extension of such policy on the same terms and
conditions for a period ending not earlier than five years following the
extended maturity date of the Mortgage Loan;
(iv) neither the applicable Master Servicer nor the applicable Special
Servicer shall make or permit any modification, waiver or amendment of any
term of, or take any of the other acts referenced in this Section 3.20(a)
with respect to, any Mortgage Loan that would result in an Adverse REMIC
Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with
respect to either Grantor Trust Pool (none of the Master Servicers and the
applicable Special Servicer shall be liable for decisions made under this
subsection which were made in good faith and each of them may rely on
Opinions of Counsel in making such decisions);
(v) subject to applicable law, the related Mortgage Loan Documents and
the Servicing Standard, neither the applicable Master Servicer nor the
applicable Special Servicer shall permit any modification, waiver or
amendment of any term of any Mortgage Loan that is not a
-237-
Specially Serviced Mortgage Loan unless all related fees and expenses are
paid by the Borrower;
(vi) the applicable Special Servicer shall not permit (or, in the case
of a Mortgage Loan that is not a Specially Serviced Mortgage Loan, consent
to the applicable Master Servicer's permitting) any Borrower to add or
substitute any real estate collateral for its Mortgage Loan unless the
applicable Special Servicer shall have first (A) determined in its
reasonable judgment, based upon a Phase I Environmental Assessment (and any
additional environmental testing that the applicable Special Servicer deems
necessary and prudent) conducted by an Independent Person who regularly
conducts Phase I Environmental Assessments, at the expense of the related
Borrower, that such additional or substitute collateral is in compliance
with applicable environmental laws and regulations and that there are no
circumstances or conditions present with respect to such new collateral
relating to the use, management or disposal of any Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or
remediation would be required under any then applicable environmental laws
or regulations and (B) other than with respect to the RREEF Textron
Mortgage Loan Pair, received, at the expense of the related Borrower,
written confirmation from each Rating Agency that such addition or
substitution of collateral will not, in and of itself, result in an Adverse
Rating Event with respect to any Class of Rated Certificates; and
(vii) the applicable Special Servicer shall not release (or, in the
case of a Mortgage Loan that is not a Specially Serviced Mortgage Loan,
consent to the applicable Master Servicer's releasing), including in
connection with a substitution contemplated by clause (vi) above, any real
property collateral securing an outstanding Mortgage Loan, except as
provided in Section 3.09(d), except as specifically required under the
related Mortgage Loan Documents or except where a Mortgage Loan (or, in the
case of a Cross-Collateralized Group, where such entire
Cross-Collateralized Group) is satisfied, or except in the case of a
release where (A) the Rating Agencies have been notified in writing, (B)
either (1) the use of the collateral to be released will not, in the
reasonable judgment of the applicable Special Servicer, materially and
adversely affect the net operating income being generated by or the use of
the related Mortgaged Property, or (2) there is a corresponding principal
pay down of such Mortgage Loan in an amount at least equal to the appraised
value of the collateral to be released (or substitute real estate
collateral with an appraised value at least equal to that of the collateral
to be released, is
-238-
delivered), (C) the remaining Mortgaged Property (together with any
substitute collateral) is, in the reasonable judgment of the applicable
Special Servicer, adequate security for the remaining Mortgage Loan and (D)
other than with respect to the RREEF Textron Mortgage Loan Pair, if the
collateral to be released has an appraised value in excess of $3,000,000,
such release would not, in and of itself, result in an Adverse Rating Event
with respect to any Class of Rated Certificates (as confirmed in writing to
the Trustee by each Rating Agency);
provided that the limitations, conditions and restrictions set forth in clauses
(i) through (vii) above shall not apply to any act or event (including, without
limitation, a release, substitution or addition of collateral) in respect of any
Mortgage Loan that either occurs automatically, or results from the exercise of
a unilateral option by the related Borrower within the meaning of Treasury
regulations section 1.1001-3(c)(2)(iii), in any event under the terms of such
Mortgage Loan in effect on the Closing Date (or, in the case of a Replacement
Pooled Mortgage Loan, on the related date of substitution); and provided,
further, that, notwithstanding clauses (i) through (vii) above, neither the
applicable Master Servicer nor the applicable Special Servicer shall be required
to oppose the confirmation of a plan in any bankruptcy or similar proceeding
involving a Borrower if, in its reasonable judgment, such opposition would not
ultimately prevent the confirmation of such plan or one substantially similar.
(b) Any payment of interest, which is deferred pursuant to Section
3.20(a), shall not, for purposes of calculating monthly distributions and
reporting information to Certificateholders, be added to the unpaid principal
balance or Stated Principal Balance of the related Pooled Mortgage Loan,
notwithstanding that the terms of such Pooled Mortgage Loan so permit or that
such interest may actually be capitalized; provided, however, that this sentence
shall not limit the rights of the applicable Master Servicer or Special Servicer
on behalf of the Trust to enforce any obligations of the related Borrower under
such Pooled Mortgage Loan.
(c) Each of the applicable Master Servicer and the applicable Special
Servicer may, as a condition to its granting any request by a Borrower for
consent, modification, waiver or indulgence or any other matter or thing, the
granting of which is within such Master Servicer's or Special Servicer's, as the
case may be, discretion pursuant to the terms of the related Mortgage Loan
Documents and is permitted by the terms of this Agreement, require that such
Borrower pay to it a reasonable or customary fee for the additional services
performed in connection with such request, together with any related costs and
expenses incurred by it; provided that the charging of such fees would not
-239-
otherwise constitute a "significant modification" of the Mortgage Loan pursuant
to Treasury Regulation Section 1.860G-2(b). All such fees collected by the
applicable Master Servicer and/or the applicable Special Servicer with respect
to any Mortgage Loan shall be allocable between such parties, as Additional
Master Servicing Compensation and Additional Special Servicing Compensation,
respectively, as provided in Section 3.11.
(d) All modifications, amendments, material waivers and other material
actions entered into or taken in respect of the Mortgage Loans pursuant to this
Section 3.20 (other than waivers of Default Charges for which the consent of the
Special Servicer is required under Section 3.02), and all material consents,
shall be in writing. Each of the applicable Special Servicer and the applicable
Master Servicer shall notify the other such party, each Rating Agency, the
Certificate Administrator, the Trustee and the Controlling Class Representative
and, if affected thereby, the RREEF Textron B-Note Holder, in writing, of any
material modification, waiver, amendment or other action entered into or taken
thereby in respect of any Mortgage Loan pursuant to this Section 3.20 (other
than waivers of Default Charges for which the consent of the Special Servicer is
required under Section 3.02) and the date thereof, and shall deliver to the
Trustee or the related Custodian for deposit in the related Mortgage File (with
a copy to the other such party and, if the RREEF Textron B-Note Mortgage Loan is
affected, to the RREEF Textron B-Note Holder), an original counterpart of the
agreement relating to such modification, waiver, amendment or other action
agreed to or taken by it, promptly (and in any event within ten Business Days)
following the execution thereof. In addition, following the execution of any
modification, waiver or amendment agreed to by the applicable Special Servicer
or the applicable Master Servicer, as appropriate, pursuant to Section 3.20(a)
above, the applicable Special Servicer or the applicable Master Servicer, as
applicable, shall deliver to the other such party, the Certificate
Administrator, the Trustee and the Rating Agencies (and, if the RREEF Textron
B-Note Mortgage Loan is affected, to the RREEF Textron B-Note Holder) an
Officer's Certificate certifying that all of the requirements of Section 3.20(a)
have been met and, in the case of the applicable Special Servicer, setting forth
in reasonable detail the basis of the determination made by it pursuant to
Section 3.20(a)(ii); provided that, if such modification, waiver or amendment
involves an extension of the maturity of any Mortgage Loan, such Officer's
Certificate shall be so delivered before the modification, waiver or amendment
is agreed to.
(e) With respect to any ARD Mortgage Loan after its Anticipated
Repayment Date, the applicable Master Servicer shall be permitted, with the
consent of the applicable Special Servicer (which consent shall be deemed
granted if not denied in writing within 10 Business Days after receipt of
-240-
the applicable Master Servicer's request therefor), to waive (such waiver to be
in writing addressed to the related Borrower, with a copy to the Trustee) all or
any portion of the accrued Post-ARD Additional Interest in respect of such ARD
Mortgage Loan if (i) such ARD Mortgage Loan is not a Specially Serviced Mortgage
Loan, (ii) the related Borrower has requested the right to prepay such ARD
Mortgage Loan in full together with all payments required by the related
Mortgage Loan Documents in connection with such prepayment except for such
accrued Post-ARD Additional Interest, and (iii) the applicable Master Servicer
has determined, in its reasonable judgment, that waiving such Post-ARD
Additional Interest is in accordance with the Servicing Standard. The applicable
Master Servicer shall prepare all documents necessary and appropriate to effect
any such waiver and shall coordinate with the related Borrower for the execution
and delivery of such documents.
(f) Notwithstanding anything in this Section 3.20 or in Section 3.08 or
Section 3.24 to the contrary, the applicable Master Servicer shall not be
required to seek the consent of, or provide prior notice to, the applicable
Special Servicer or any Certificateholder or obtain any confirmation from the
Rating Agencies with respect to the absence of an Adverse Rating Event in order
to approve the following modifications, waivers or amendments of the Mortgage
Loans that are not Specially Serviced Mortgage Loans: (i) waivers of minor
covenant defaults (other than financial covenants), including late financial
statements; (ii) releases of non-material parcels of a Mortgaged Property
(including, without limitation, any such releases (A) to which the related
Mortgage Loan Documents expressly require the mortgagee thereunder to make such
releases upon the satisfaction of certain conditions (and the conditions to the
release that are set forth in the Mortgage Loan Documents do not include the
approval of the lender or the exercise of lender discretion (other than
confirming the satisfaction of the other conditions to the release set forth in
the Mortgage Loan Documents that do not include any other approval or exercise))
and such release is made as required by the Mortgage Loan Documents or (B) that
are related to any condemnation action that is pending, or threatened in
writing, and would affect a non-material portion of the Mortgaged Property);
(iii) grants of easements or rights of way that do not materially affect the use
or value of a Mortgaged Property or the Borrower's ability to make any payments
with respect to the related Mortgage Loan; (iv) granting other routine
approvals, including the granting of subordination and nondisturbance and
attornment agreements and consents involving routine leasing activities that
affect less than 30% of the net rentable area of the Mortgaged Property or
30,000 square feet of the Mortgaged Property, whichever is greater; (v) approval
of annual budgets to operate the Mortgage Property; (vi) grants of any waiver or
consent that the applicable Master
-241-
Servicer determines (in accordance with the Servicing Standard) to be
immaterial; and (vii) approving a change of the property manager at the request
of the related Borrower (provided that either (A) the change occurs in
connection with an assignment and assumption approved in accordance with Section
3.08 or (B) the successor property manager is not affiliated with the Borrower
and is a nationally or regionally recognized manager of similar properties and
the related Mortgage Loan does not have a Stated Principal Balance that is
greater than or equal to $8,500,000 or 2% of the then aggregate Stated Principal
Balance of the Mortgage Pool, whichever is less; provided that such
modification, waiver, consent or amendment (x) would not constitute a
"significant modification" of such Mortgage Loan pursuant to Treasury
regulations section 1.860G-2(b) and would not otherwise constitute an Adverse
REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event
with respect to either Grantor Trust Pool, and (y) would be consistent with the
Servicing Standard.
(g) In connection with granting an extension of the maturity date of
either Mortgage Loan or both Mortgage Loans in the RREEF Textron Pooled Mortgage
Loan in accordance with Section 3.20(a), the applicable Special Servicer (if the
RREEF Textron Mortgage Loan Pair is a Specially Serviced Mortgage Loan), or the
applicable Master Servicer (if the RREEF Textron Mortgage Loan Pair is not a
Specially Serviced Mortgage Loan) shall each cause the related Borrower to
agree, if it has not already done so pursuant to the existing Mortgage Loan
Documents, to thereafter deliver to the applicable Special Servicer, the Trustee
and the Controlling Class Representative, and the RREEF Textron B-Note Holder
audited operating statements on a quarterly basis with respect to the related
Mortgaged Property, provided that the applicable Special Servicer or the
applicable Master Servicer, as the case may be, may, in its sole discretion,
waive the requirement that such statements be audited.
SECTION 3.21. Transfer of Servicing Between Applicable Master
Servicer and Applicable Special Servicer; Record
Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Mortgage Loan, the applicable Master Servicer shall immediately
give notice thereof to the Controlling Class Representative, and if the
applicable Master Servicer is not also the applicable Special Servicer, the
applicable Master Servicer shall immediately give notice thereof to the
applicable Special Servicer, the Trustee and the Controlling Class
Representative, and shall deliver the related Servicing File to the applicable
Special Servicer and shall use its best reasonable efforts to provide the
applicable Special Servicer with all information, documents (or copies thereof)
and records (including records stored
-242-
electronically on computer tapes, magnetic discs and the like) relating to such
Mortgage Loan and reasonably requested by the applicable Special Servicer to
enable it to assume its functions hereunder with respect thereto without acting
through a Sub-Servicer. To the extent such is in the possession of the
applicable Master Servicer (or any Sub-Servicer thereof), the information,
documents and records to be delivered by the applicable Master Servicer to the
applicable Special Servicer pursuant to the prior sentence shall include, but
not be limited to, financial statements, appraisals, environmental/engineering
reports, leases, rent rolls, Insurance Policies, UCC Financing Statements and
tenant estoppels. The applicable Master Servicer shall use its best efforts to
comply with the preceding two sentences within five Business Days of the
occurrence of each related Servicing Transfer Event. No later than ten Business
Days before the applicable Master Servicer is required to deliver a copy of the
related Servicing File to the applicable Special Servicer, it shall review such
Servicing File and request from the Trustee any material documents that it is
aware are missing from such Servicing File.
Upon determining that a Specially Serviced Mortgage Loan has become a
Corrected Mortgage Loan and if the applicable Master Servicer is not also the
applicable Special Servicer, the applicable Special Servicer shall immediately
give notice thereof to the applicable Master Servicer, the Trustee and the
Controlling Class Representative and shall return the related Servicing File
within five Business Days, to the applicable Master Servicer. Upon giving such
notice and returning such Servicing File to the applicable Master Servicer, the
applicable Special Servicer's obligation to service such Mortgage Loan, and the
applicable Special Servicer's right to receive the Special Servicing Fee with
respect to such Mortgage Loan, shall terminate, and the obligations of the
applicable Master Servicer to service and administer such Mortgage Loan shall
resume.
Notwithstanding anything herein to the contrary, in connection with the
transfer to the applicable Special Servicer of the servicing of a
Cross-Collateralized Mortgage Loan as a result of a Servicing Transfer Event or
the re-assumption of servicing responsibilities by the applicable Master
Servicer with respect to any such Mortgage Loan upon its becoming a Corrected
Mortgage Loan, the applicable Master Servicer and the applicable Special
Servicer shall each transfer to the other, as and when applicable, the servicing
of all other Cross-Collateralized Mortgage Loans constituting part of the same
Cross-Collateralized Group; provided that no Cross-Collateralized Mortgage Loan
may become a Corrected Mortgage Loan at anytime that a continuing Servicing
Transfer Event exists with respect to another Cross-Collateralized Mortgage Loan
in the same Cross-Collateralized Group.
-243-
(b) In servicing any Specially Serviced Mortgage Loan, the applicable
Special Servicer shall provide to the Trustee originals of documents
contemplated by the definition of "Mortgage File" and generated while such
Mortgage Loan is a Specially Serviced Mortgage Loan, for inclusion in the
related Mortgage File (with a copy of each such original to the applicable
Master Servicer), and copies of any additional related Mortgage Loan
information, including correspondence with the related Borrower generated while
such Mortgage Loan is a Specially Serviced Mortgage Loan.
(c) The applicable Master Servicer and the applicable Special Servicer
shall each furnish to the other, upon reasonable request, such reports,
documents, certifications and information in its possession, and access to such
books and records maintained thereby, as may relate to any Mortgage Loan or REO
Property and as shall be reasonably required by the requesting party in order to
perform its duties hereunder.
(d) In connection with the performance of its obligations hereunder
with respect to any Mortgage Loan or REO Property, each of the applicable Master
Servicer and the applicable Special Servicer shall be entitled to rely upon
written information provided to it by the other.
SECTION 3.22. Sub-Servicing Agreements.
(a) Each Master Servicer and the applicable Special Servicer may enter
into Sub-Servicing Agreements to provide for the performance by third parties of
any or all of their respective obligations hereunder, provided that (A) in each
case, the Sub-Servicing Agreement (as it may be amended or modified from time to
time): (i) insofar as it affects the Trust, is consistent with this Agreement in
all material respects; (ii) expressly or effectively provides that if the Master
Servicer or Special Servicer, as the case may be, shall for any reason no longer
act in such capacity hereunder (including, without limitation, by reason of an
Event of Default), any successor to the Master Servicer or the applicable
Special Servicer, as the case may be, hereunder (including the Trustee if the
Trustee has become such successor pursuant to Section 7.02) may thereupon either
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Master Servicer or Special Servicer, as the
case may be, under such agreement or, subject to the provisions of Section
3.22(f), terminate such rights and obligations (provided, however, that the
RREEF Textron Sub-Servicing Agreement may not be terminated except for cause or
at the direction of the RREEF Textron Controlling Party); (iii) if it is entered
into by a Master Servicer, does not purport to delegate or effectively delegate
to the related Sub-Servicer any of the rights or obligations of the applicable
Special
-244-
Servicer with respect to any Specially Serviced Mortgage Loan or otherwise; (iv)
if it is entered into by the applicable Special Servicer, does not purport to
delegate or effectively delegate to the related Sub-Servicer any of the rights
or obligations of a Master Servicer with respect to any Mortgage Loan (including
any Specially Serviced Mortgage Loan); (v) provides that the Trustee, for the
benefit of the Certificateholders, shall be a third party beneficiary under such
agreement, but that (except to the extent the Trustee or its designee assumes
the obligations of such Master Servicer or such Special Servicer, as the case
may be, thereunder as contemplated by the immediately preceding clause (ii) and
except with respect to the obligations of any successor Master Servicer under
the Designated Sub-Servicer Agreements) none of the Trustee, any successor to
such Master Servicer or Special Servicer, as the case may be, or any
Certificateholder shall have any duties under such agreement or any liabilities
arising therefrom except as explicitly permitted herein; (vi) permits any
purchaser of a Mortgage Loan pursuant to this Agreement to terminate such
agreement with respect to such purchased Mortgage Loan without cause and without
payment of any termination fee; (vii) does not permit the subject Sub-Servicer
any rights of indemnification out of the Trust Fund except through such Master
Servicer or such Special Servicer, as the case may be, pursuant to Section 6.03;
(viii) does not impose any liability whatsoever on the Trustee or the
Certificateholders with respect to anything contained therein; and (ix) in the
case of the RREEF Textron Sub-Servicing Agreement, provides that such
Sub-Servicing Agreement may be terminated, without cause and without payment of
any penalty or termination fee, at the direction of the RREEF Textron
Controlling Party; and (B) the Servicer Report Administrator shall not be
entitled to enter into any Sub-Servicing Agreement to provide for the
performance by third parties of any or all of the obligations imposed on it
hereunder in its capacity as Servicer Report Administrator.
(b) References in this Agreement to actions taken or to be taken by a
Master Servicer or Special Servicer include actions taken or to be taken by a
Sub-Servicer on behalf of such Master Servicer or such Special Servicer, as the
case may be; and, in connection therewith, all amounts advanced by any
Sub-Servicer to satisfy the obligations of a Master Servicer or Special Servicer
hereunder to make Advances shall be deemed to have been advanced by such Master
Servicer or such Special Servicer, as the case may be, out of its own funds and,
accordingly, such Advances shall be recoverable by such Sub-Servicer in the same
manner and out of the same funds as if such Sub-Servicer were such Master
Servicer or such Special Servicer, as the case may be. Such Advances shall
accrue interest in accordance with Sections 3.11(g) and/or 4.03(d), such
interest to be allocable between such Master Servicer or such Special Servicer,
as the case
-245-
may be, and such Sub-Servicer as they may agree. For purposes of this Agreement,
each of the Master Servicers and the Special Servicers shall be deemed to have
received any payment when a Sub-Servicer retained by it receives such payment.
(c) Each of the Master Servicers and the Special Servicers shall
deliver to the Trustee copies of all Sub-Servicing Agreements, and any
amendments thereto and modifications thereof, entered into by it promptly upon
its execution and delivery of such documents.
(d) Each Sub-Servicer actually performing servicing functions (i) shall
be authorized to transact business in the state or states in which the Mortgaged
Properties for the Mortgage Loans it is to service are situated, if and to the
extent required by applicable law, and (ii) to the extent sub-servicing
multifamily loans, shall be an approved conventional seller/servicer of
multifamily mortgage loans for ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae or a HUD-Approved
Servicer.
(e) Each of the Master Servicers and the Special Servicers, for the
benefit of the Trustee and the Certificateholders, shall (at no expense to any
other party hereto or to the Certificateholders or the Trust) monitor the
performance and enforce the obligations of their respective Sub-Servicers under
the related Sub-Servicing Agreements. Such enforcement, including the legal
prosecution of claims, termination of Sub-Servicing Agreements in accordance
with their respective terms and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as such
Master Servicer or such Special Servicer, as applicable, in its reasonable
judgment, would require were it the owner of the subject Mortgage Loans. Subject
to the terms of the related Sub-Servicing Agreement, including any provisions
thereof limiting the ability of a Master Servicer or Special Servicer, as
applicable, to terminate a Sub-Servicer, each of the Master Servicers and the
Special Servicers shall have the right to remove a Sub-Servicer retained by it
at any time it considers such removal to be in the best interests of
Certificateholders and/or the RREEF Textron B-Note Holder.
(f) It shall be permissible for each Designated Sub-Servicing Agreement
to prohibit a termination of the related Sub-Servicer without cause (except that
cause shall be defined to include the occurrence of an Adverse Rating Event with
respect to the continuation of such Sub-Servicer) and or to require the payment
of a termination fee (determined as described below) upon any termination
without cause. Any such right of a Sub-Servicer under a Designated Sub-Servicing
Agreement shall be binding upon any successor Master Servicer
-246-
(including the Trustee) and the obligation to pay such termination fee upon any
termination of such Sub-Servicer shall constitute a corporate obligation (not
reimbursable by the Trust or any of the other parties to this Agreement,
including the terminated Master Servicer) of such successor. For purposes of
this subsection (f), the termination fee payable to a Sub-Servicer under any
Designated Sub-Servicing Agreement shall be determined as follows.
(g) In the event the Trustee or its designee assumes the rights and
obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement, such Master Servicer or such Special Servicer, as the
case may be, at its expense shall, upon request of the Trustee, deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected and held on behalf of it thereunder, and
otherwise use its best efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreement to the assuming party.
(h) Notwithstanding any Sub-Servicing Agreement entered into by it,
each of the Master Servicers and the Special Servicers shall remain obligated
and liable to the Trustee and the Certificateholders (and, in the case of the
applicable Master Servicer for the RREEF Textron Mortgage Loan Pair, to the
RREEF Textron B-Note Holder) for the performance of their respective obligations
and duties under this Agreement in accordance with the provisions hereof to the
same extent and under the same terms and conditions as if it alone were
servicing and administering the Mortgage Loans or REO Properties for which it is
responsible. Each of the Master Servicers and the Special Servicers shall pay
the fees of any Sub-Servicer retained by it in accordance with the respective
Sub-Servicing Agreement and, in any event, from its own funds.
(i) Notwithstanding anything to the contrary set forth herein, any
account established and maintained by a Sub-Servicer pursuant to a Sub-Servicing
Agreement with a Master Servicer shall for all purposes under this Agreement be
deemed to be an account established and maintained by such Master Servicer.
(j) Notwithstanding any contrary provisions of the foregoing
subsections of this Section 3.22, the appointment by a Master Servicer or
Special Servicer of one or more third-party contractors for the purpose of
performing discrete, ministerial functions shall not constitute the appointment
of Sub-Servicers and shall not subject to the provisions of this Section 3.22;
provided, however, that such Master Servicer or such Special Servicer, as the
case may be, shall remain responsible for the actions of such third-party
contractors as if it
-247-
were alone performing such functions and shall pay all fees and expenses of such
third-party contractors. The proviso to the preceding sentence shall not be
construed to limit the right of a Master Servicer or Special Servicer to be
reimbursed for any cost or expense for which it is otherwise entitled to
reimbursement under this Agreement.
(k) Neither the applicable Master Servicer nor the RREEF Textron
Special Servicer shall enter into any Sub-Servicing Agreement with respect to
the RREEF Textron Mortgage Loan Pair without the consent of the RREEF Textron
Controlling Party. In addition, the RREEF Textron Controlling Party may require
the applicable Master Servicer or the RREEF Textron Special Servicer to
terminate any particular Sub-Servicing Agreement with respect to the RREEF
Textron Mortgage Loan Pair. Furthermore, if PAR is no longer a Master Servicer,
the RREEF Textron Controlling Party may require the applicable Master Servicer
to (i) appoint a Sub-Servicer (acceptable to the RREEF Textron Controlling Party
in its sole discretion) with respect to the RREEF Textron Mortgage Loan Pair and
(ii) delegate all of its primary servicing responsibilities and duties, and
assign all of the corresponding master servicing compensation (exclusive of a
portion of the corresponding Master Servicing Fee that is in excess of a
reasonable primary servicing fee), with respect to the RREEF Textron Mortgage
Loan Pair to that Sub-Servicer.
SECTION 3.23. Controlling Class Representative.
(a) The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class shall be entitled in accordance with
this Section 3.23 to select a representative (the "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including those specified in Section 3.24) or to replace an existing
Controlling Class Representative; provided that, subject to the last sentence of
this Section 3.23(a), and the acquisition by ARCap CMBS Fund REIT, Inc. of the
Certificates of the Controlling Class, ARCap CMBS Fund REIT, Inc. shall serve as
the initial Controlling Class Representative. Upon (i) the receipt by the
Certificate Administrator of written requests for the selection of a successor
Controlling Class Representative from the Holders (or, in the case of Book-Entry
Certificates, the Certificate Owners) of Certificates representing more than 50%
of the Class Principal Balance of the Controlling Class, (ii) the resignation or
removal of the Person acting as Controlling Class Representative or (iii) a
determination by the Certificate Administrator that the Controlling Class has
changed, the Certificate Administrator shall promptly notify the Depositor and
the Holders (and, in the case of Book-Entry Certificates, to the extent actually
known to a Responsible
-248-
Officer of the Certificate Administrator or identified thereto by the Depositary
or the Depositary Participants, the Certificate Owners) of the Controlling Class
that they may select a Controlling Class Representative. Such notice shall set
forth the process established by the Certificate Administrator for selecting a
Controlling Class Representative, which process shall include the designation of
the Controlling Class Representative by the Majority Controlling Class
Certificateholder(s) by a writing delivered to the Certificate Administrator. No
appointment of any Person as a successor Controlling Class Representative shall
be effective until such Person provides the Certificate Administrator with (i)
written confirmation of its acceptance of such appointment, (ii) written
confirmation of its agreement to keep confidential, for so long as reports are
required to be filed with respect to the Trust under Section 15(d) of the
Exchange Act, all information received by it with respect to the Trust and its
assets that has not been filed with the Commission, (iii) an address and
telecopy number for the delivery of notices and other correspondence and (iv) a
list of officers or employees of such Person with whom the parties to this
Agreement may deal (including their names, titles, work addresses and telecopy
numbers).
(b) Within ten Business Days (or as soon thereafter as practicable if
the Controlling Class consists of Book-Entry Certificates) of any change in the
identity of the Controlling Class Representative of which a Responsible Officer
of the Certificate Administrator has actual knowledge and otherwise promptly
upon request from either Master Servicer or either Special Servicer, the
Certificate Administrator shall deliver to each of the Master Servicers and the
Special Servicers the identity of the Controlling Class Representative and a
list of each Holder (or, in the case of Book-Entry Certificates, to the extent
actually known to a Responsible Officer of the Certificate Administrator or
identified thereto by the Depositary or the Depositary Participants, each
Certificate Owner) of the Controlling Class, including, in each case, names and
addresses. With respect to such information, the Certificate Administrator shall
be entitled to conclusively rely on information provided to it by the Holders
(or, in the case of Book-Entry Certificates, subject to Section 5.06, by the
Depositary or the Certificate Owners) of such Certificates, and each of the
Master Servicers and the Special Servicers shall be entitled to rely on such
information provided by the Certificate Administrator with respect to any
obligation or right hereunder that such Master Servicer or such Special
Servicer, as the case may be, may have to deliver information or otherwise
communicate with the Controlling Class Representative or any of the Holders (or,
if applicable, Certificate Owners) of the Controlling Class. In addition to the
foregoing, within two Business Days of the selection, resignation or removal of
a Controlling Class
-249-
Representative, the Certificate Administrator shall notify the other parties to
this Agreement of such event.
(c) A Controlling Class Representative may at any time resign as such
by giving written notice to the Certificate Administrator, the Trustee, each
Special Servicer, each Master Servicer and each Holder (or, in the case of
Book-Entry Certificates, Certificate Owner) of the Controlling Class. The
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class shall be entitled to remove any existing Controlling Class
Representative by giving written notice to the Certificate Administrator, the
Trustee, each Special Servicer, each Master Servicer and such existing
Controlling Class Representative.
(d) Once a Controlling Class Representative has been selected pursuant
to this Section 3.23, each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Controlling Class, by
aggregate Certificate Principal Balance, or such Controlling Class
Representative, as applicable, shall have notified the Certificate Administrator
and each other party to this Agreement and each Holder (or, in the case of
Book-Entry Certificates, Certificate Owner) of the Controlling Class, in
writing, of the resignation or removal of such Controlling Class Representative.
(e) Any and all expenses of the Controlling Class Representative shall
be borne by the Holders (or, if applicable, the Certificate Owners) of
Certificates of the Controlling Class, pro rata according to their respective
Percentage Interests in such Class, and not by the Trust. Notwithstanding the
foregoing, if a claim is made against the Controlling Class Representative by a
Borrower with respect to this Agreement or any particular Mortgage Loan, the
Controlling Class Representative shall immediately notify the Certificate
Administrator, the Trustee, the applicable Master Servicer and the applicable
Special Servicer, whereupon (if such Special Servicer, such Master Servicer, the
Certificate Administrator, the Trustee, the Fiscal Agent or the Trust are also
named parties to the same action and, in the sole judgment of the applicable
Special Servicer, (i) the Controlling Class Representative had acted in good
faith, without negligence or willful misfeasance, with regard to the particular
matter at issue, and (ii) there is no potential for a Special Servicer, a Master
Servicer, the Certificate Administrator, the Trustee, the Fiscal Agent or the
Trust to be an adverse party in such action as regards the Controlling Class
Representative) the applicable Special Servicer on behalf of the Trust shall,
-250-
subject to Section 6.03, assume the defense of any such claim against the
Controlling Class Representative. This provision shall survive the termination
of this Agreement and the termination or resignation of the Controlling Class
Representative.
SECTION 3.24. Certain Rights and Powers of the Controlling Class
Representative.
(a) The applicable Special Servicer shall prepare a report (the "Asset
Status Report") recommending the taking of certain actions for each Mortgage
Loan that becomes a Specially Serviced Mortgage Loan and deliver such Asset
Status Report to the Controlling Class Representative and the applicable Master
Servicer not later than 45 days after the servicing of such Mortgage Loan is
transferred to the applicable Special Servicer. Such Asset Status Report shall
set forth the following information to the extent reasonably determinable:
(i) a summary of the status of such Specially Serviced Mortgage Loan
and any negotiations with the related Borrower;
(ii) a discussion of the legal and environmental considerations
reasonably known to the applicable Special Servicer (including without
limitation by reason of any Phase I Environmental Assessment and any
additional environmental testing contemplated by Section 3.09(c)),
consistent with the Servicing Standard, that are applicable to the exercise
of remedies set forth herein and to the enforcement of any related
guaranties or other collateral for the related Specially Serviced Mortgage
Loan and whether outside legal counsel has been retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property or Mortgaged Properties;
(iv) a summary of the applicable Special Servicer's recommended action
with respect to such Specially Serviced Mortgage Loan;
(v) the Appraised Value of the related Mortgaged Property or Mortgaged
Properties, together with the assumptions used in the calculation thereof
(which the applicable Special Servicer may satisfy by providing a copy of
the most recently obtained Appraisal); and
-251-
(vi) such other information as the applicable Special Servicer deems
relevant in light of the Servicing Standard.
If (i) the Controlling Class Representative affirmatively approves in
writing an Asset Status Report, (ii) after 10 Business Days from receipt of an
Asset Status Report the Controlling Class Representative does not object to such
Asset Status Report or (iii) within 10 Business Days after receipt of an Asset
Status Report the Controlling Class Representative objects to such Asset Status
Report and the applicable Special Servicer makes a determination in accordance
with the Servicing Standard that such objection is not in the best interest of
all the Certificateholders and (if applicable) the RREEF Textron B-Note Holder
as a collective whole, the applicable Special Servicer shall take the
recommended actions described in the Asset Status Report. If within 10 Business
Days after receipt of an Asset Status Report the Controlling Class
Representative objects to such Asset Status Report and the applicable Special
Servicer does not make a determination in accordance with the Servicing Standard
that such objection is not in the best interest of all the Certificateholders
and (if applicable) the RREEF Textron B-Note Holder as a collective whole, the
applicable Special Servicer shall revise such Asset Status Report as soon as
practicable thereafter, but in no event later than 30 days after the objection
to the Asset Status Report by the Controlling Class Representative. The
applicable Special Servicer shall, subject to Section 3.24(c), revise such Asset
Status Report as provided in the prior sentence until the earliest of (a) the
delivery by the Controlling Class Representative of an affirmative approval in
writing of such revised Asset Status Report, (b) the failure of the Controlling
Class Representative to disapprove such revised Asset Status Report in writing
within ten (10) Business Days of its receipt thereof; or (c) the passage of
ninety (90) days from the date of preparation of the initial version of the
Asset Status Report. Following the earliest of such events, the applicable
Special Servicer shall implement the recommended action as outlined in the most
recent version of such Asset Status Report (provided that the applicable Special
Servicer shall not take any action that is contrary to applicable law or the
terms of the applicable Mortgage Loan Documents). The applicable Special
Servicer may, from time to time, subject to Section 3.24(c), modify any Asset
Status Report it has previously delivered and implement the new action in such
revised report so long as such revised report has been prepared, reviewed and
either approved or not rejected as provided above.
Notwithstanding the prior paragraph, the applicable Special Servicer
may take any action set forth in an Asset Status Report before the expiration of
the ten (10) Business Day period during which the Controlling Class
Representative may reject such report if (A) the applicable Special Servicer has
reasonably determined that failure to take such action would materially and
adversely affect the interests of the Certificateholders and (B) it has made a
reasonable effort to contact the Controlling Class Representative. The
applicable
-252-
Special Servicer may not take any action inconsistent with an Asset Status
Report that has been adopted as provided above, unless such action would be
required in order to act in accordance with the Servicing Standard. If the
Special Servicer takes any action inconsistent with an Asset Status Report that
has been adopted as provided above, the applicable Special Servicer shall
promptly notify the Controlling Class Representative of such inconsistent action
and provide a reasonably detailed explanation of the reasons therefor.
The applicable Special Servicer shall deliver to the applicable Master
Servicer, the Controlling Class Representative and each Rating Agency a copy of
each Asset Status Report that has been adopted as provided above, in each case
with reasonable promptness following such adoption. The RREEF Textron Special
Servicer shall deliver to the applicable Master Servicer, the Controlling Class
Representative and each Rating Agency any comparable report contemplated by the
final sentence of Section 3.24(c).
(b) In addition, notwithstanding anything in any other Section of this
Agreement to the contrary, but in all cases subject to Section 3.24(c), the
applicable Special Servicer will not be permitted to take, or consent to the
applicable Master Servicer's taking, any of the actions identified in clauses
(i) through (xi) of this sentence not otherwise specifically covered by an
approved Asset Status Report, unless and until the applicable Special Servicer
has notified the Controlling Class Representative in writing of the applicable
Special Servicer's intent to take or permit the particular action and the
Controlling Class Representative has consented (or has failed to object) thereto
in writing within ten Business Days of having been notified thereof in writing
and having been provided with all reasonably requested information with respect
thereto (and, in the case of a proposed action for which the applicable Master
Servicer has requested approval from the applicable Special Servicer, such
shorter period during which such Special Servicer is initially entitled to
withhold consent without being deemed to have approved the action):
(i) any foreclosure upon or comparable conversion (which may include
acquisitions of an REO Property) of the ownership of the property or
properties securing any Specially Serviced Mortgage Loan as comes into and
continues in default;
(ii) any modification, amendment or waiver of a monetary term
(including a change in the timing of payments but excluding the waiver of
Default Charges) or any non-monetary term (excluding the waiver of any
"due-on-sale" or "due-on-encumbrance" clause, which clauses are addressed
in clause (ix) below) of (A) any Mortgage Loan that is not a
-253-
Specially Serviced Mortgage Loan and has a principal balance of $2,500,000
or more (or, if the proposed modification/waiver is an extension of
maturity or a waiver of Post-ARD Additional Interest under the
circumstances contemplated by Section 3.20(f), any such Mortgage Loan
without regard to balance) or (B) any Specially Serviced Mortgage Loan;
(iii) any acceptance of a discounted payoff with respect to any
Specially Serviced Mortgage Loan;
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any release of collateral for any Mortgage Loan (except that in
circumstances where either (x) both (A) the relevant Mortgage Loan is not a
Specially Serviced Mortgage Loan and has an outstanding principal balance
of less than $2,500,000 and (B) the release of collateral is not
conditioned on obtaining the consent of the lender under the related
Mortgage Loan Documents, or (y) the release of collateral is made upon a
satisfaction of the subject Mortgage Loan, the consent of (or failure to
object by) the Controlling Class Representative shall not constitute a
condition to the taking of or consent to such action by the Special
Servicer but the Special Servicer shall deliver notice of such action to
the Controlling Class Representative simultaneously with or promptly
following its taking or consenting to such action);
(vi) any acceptance of substitute or additional collateral for a
Mortgage Loan (except that in circumstances where either (x) the relevant
Mortgage Loan is not a Specially Serviced Mortgage Loan and has an
outstanding principal balance of less than $2,500,000 or (y) the acceptance
of the substitute or additional collateral is not conditioned on obtaining
the consent of the lender, the consent of (or failure to object by) the
Controlling Class Representative shall not constitute a condition to the
taking of or consent to such action by the Special Servicer but the Special
Servicer shall deliver notice of such action to the Controlling Class
Representative simultaneously with or promptly following its taking or
consenting to such action);
(vii) any releases of any Letters of Credit, Reserve Funds or other
Additional Collateral with respect to a Mortgaged Property (except that in
circumstances where either (x) the relevant Mortgage Loan is not a
-254-
Specially Serviced Mortgage Loan and has a principal balance of less than
$2,500,000 or (y) the release of the applicable Letter of Credit, Reserve
Funds or Additional Collateral is not conditioned on obtaining the consent
of the lender, the consent of (or failure to object by) the Controlling
Class Representative shall not constitute a condition to the taking of or
consent to such action by the Special Servicer but the Special Servicer
shall deliver notice of such action to the Controlling Class Representative
simultaneously with or promptly following its taking or consenting to such
action);
(viii) any termination or replacement, or consent to the termination or
replacement, of a property manager with respect to any Mortgaged Property,
or any termination or change, or consent to the termination or change
(except that in circumstances where the relevant Mortgage Loan is not a
Specially Serviced Mortgage Loan and has a principal balance of less than
$2,500,000, the consent of (or failure to object by) the Controlling Class
Representative shall not constitute a condition to the taking of or consent
to such action by the Special Servicer but the Special Servicer shall
deliver notice of such action to the Controlling Class Representative
simultaneously with or promptly following its taking or consenting to such
action);
(ix) any approval of the assignment of the Mortgaged Property securing
any Mortgage Loan to and assumption of such Mortgage Loan by another
Person, any waiver of a "due-on-sale" clause in any Mortgage Loan, any
approval of a further encumbrance of the Mortgaged Property securing any
Mortgage Loan or any waiver of a "due-on-encumbrance" clause in any
Mortgage Loan (except that in circumstances where the relevant Mortgage
Loan is not a Specially Serviced Mortgage Loan and has a principal balance
of less than $2,500,000, the consent of (or failure to object by) the
Controlling Class Representative shall not constitute a condition to the
taking of or consent to such action by the Special Servicer but the Special
Servicer shall deliver notice of such action to the Controlling Class
Representative simultaneously with or promptly following its taking or
consenting to such action); and
(x) any determination as to whether any type of property-level
insurance is required under the terms of any Mortgage Loan, is available at
commercially reasonable rates, is available for similar types of properties
in the area in which the related Mortgaged Property is located or any other
determination or exercise of discretion with respect to property-level
insurance (except that in circumstances where the relevant
-255-
Mortgage Loan is not a Specially Serviced Mortgage Loan and has a principal
balance of less than $2,500,000, the consent of (or failure to object by)
the Controlling Class Representative shall not constitute a condition to
the taking of or consent to such action by the Special Servicer but the
Special Servicer shall deliver notice of such action to the Controlling
Class Representative simultaneously with or promptly following its taking
or consenting to such action);
provided that, in the event that the applicable Special Servicer determines that
immediate action is necessary to protect the interests of the Certificateholders
(as a collective whole), the applicable Special Servicer may take any such
action without waiting for the Controlling Class Representative's response.
In addition, subject to Section 3.24(c), the Controlling Class
Representative may direct the applicable Special Servicer to take, or to refrain
from taking, such actions as the Controlling Class Representative may deem
advisable or as to which provision is otherwise made herein. Upon reasonable
request, the applicable Special Servicer shall provide the Controlling Class
Representative with any information in the applicable Special Servicer's
possession with respect to such matters, including, without limitation, its
reasons for determining to take a proposed action.
(c) Notwithstanding anything herein to the contrary: (i) no Special
Servicer shall have any right or obligation to consult with or to seek and/or
obtain consent or approval from any Controlling Class Representative prior to
acting during the period following any resignation or removal of a Controlling
Class Representative and before a replacement is selected; and (ii) no advice,
direction or objection from or by the Controlling Class Representative, as
contemplated by Section 3.24(a) or (b), may (and the applicable Special Servicer
shall ignore and act without regard to any such advice, direction or objection
that the applicable Special Servicer has determined, in its reasonable, good
faith judgment, would): (A) require or cause the applicable Special Servicer to
violate applicable law, the terms of any Mortgage Loan or any other Section of
this Agreement, including the applicable Special Servicer's obligation to act in
accordance with the Servicing Standard, (B) result in an Adverse REMIC Event
with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to
either Grantor Trust Pool, (C) expose the Trust, the Depositor, a Master
Servicer, a Special Servicer, the Fiscal Agent, the Certificate Administrator,
the Trustee or any of their respective Affiliates, members, managers, officers,
directors, employees or agents, to any material claim, suit or liability or (D)
materially expand the scope of a Master Servicer's or a Special Servicer's
responsibilities under this Agreement. Furthermore, notwithstanding the
-256-
foregoing (including any contrary provisions of subsection (a) or subsection
(b)), the RREEF Textron Special Servicer shall not have any obligation to obtain
the approval of or accept direction from the Controlling Class Representative
regarding any Asset Status Report or the actions contemplated by that Asset
Status Report with respect to the RREEF Textron Mortgage Loan Pair, or to even
prepare any Asset Status Report with respect to the RREEF Textron Mortgage Loan
Pair, or otherwise obtain the approval of or accept direction from the
Controlling Class Representative with respect to any servicing action involving
the RREEF Textron Mortgage Loan Pair, unless a RREEF Textron Change of Control
Event has occurred and is continuing; provided that, during the period that no
RREEF Textron Change of Control Event Exists, the RREEF Textron Special Servicer
shall, solely for informational purposes, prepare, and from time to time update,
a report containing the type of information in an Asset Status Report with
respect to the RREEF Textron Mortgage Loan Pair and within 20 days thereafter
deliver the same to the Trustee and the Controlling Class Representative.
(d) Each Certificateholder acknowledges and agrees, by its acceptance
of its Certificates, that: (i) the Controlling Class Representative may have
special relationships and interests that conflict with those of Holders of one
or more Classes of Certificates; (ii) the Controlling Class Representative may
act solely in the interests of the Holders of the Controlling Class; (iii) the
Controlling Class Representative does not have any duties to the Holders of any
Class of Certificates other than the Controlling Class; (iv) the Controlling
Class Representative may take actions that favor interests of the Holders of the
Controlling Class over the interests of the Holders of one or more other Classes
of Certificates; and (v) the Controlling Class Representative shall have no
liability whatsoever for having so acted, and no Certificateholder may take any
action whatsoever against the Controlling Class Representative or any director,
officer, employee, agent or principal thereof for having so acted.
SECTION 3.25. Replacement of Special Servicers.
(a) Subject to Section 3.25(b), the Controlling Class Representative
may remove the existing General Special Servicer hereunder (with or without
cause) and appoint a successor to the existing General Special Servicer;
provided that if any such removal is made without cause, then the costs of
transferring the special servicing responsibilities of the removed General
Special Servicer to a successor thereto shall be paid by the Certificateholders
of the Controlling Class and (B) the Controlling Class Representative shall have
delivered or caused to have been delivered to each of the parties hereto a copy
of the request for the confirmation described in clause (i) of subsection (b)
that
-257-
constitutes a condition to the effectiveness of the removal and/or appointment,
simultaneously with or promptly following the delivery of such request to the
Rating Agencies. In addition, the RREEF Textron Controlling Party may, upon not
less than ten days' prior written notice to the respective parties hereto,
remove any existing RREEF Textron Special Servicer hereunder (without cause) and
appoint a successor RREEF Textron Special Servicer; provided that, if any such
removal is without cause, then the costs of transferring the special servicing
responsibilities to a successor RREEF Textron Special Servicer shall be paid by
either the RREEF Textron B-Note Holder (if it is the RREEF Textron Controlling
Party) or by the Certificateholders of the Controlling Class (if the Controlling
Class Representative is the RREEF Textron Controlling Party).
(b) No removal of a Special Servicer and/or appointment of a successor
thereto pursuant to Section 3.25(a) shall be effective until: (i) the Trustee
shall have received (A) written confirmation from each of the Rating Agencies
that such removal and/or appointment will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates (provided, that the RREEF
Textron Controlling Party can remove the RREEF Textron Special Servicer, without
obtaining such written confirmation from the Rating Agencies, in order to
replace it with a Person controlled by PMCF or The Prudential Insurance Company
of America), (B) an Acknowledgment of Proposed Special Servicer in the form
attached hereto as Exhibit H-2, executed by the Person designated to be the
successor to such terminated General Special Servicer or RREEF Textron Special
Servicer, as the case may be, (C) in the case of the RREEF Textron Special
Servicer, under the circumstances provided below in this Section 3.25(b), the
written consent of the Controlling Class Representative, which consent shall not
be unreasonably withheld, and (D) an Opinion of Counsel (which shall not be an
expense of the Trustee or the Trust) substantially to the effect that (1) the
removal of such terminated Special Servicer and/or the appointment of the Person
designated to serve as successor thereto is in compliance with this Section
3.25, (2) such designated Person is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (3) the
Acknowledgment of Proposed Special Servicer, the form of which is attached
hereto as Exhibit H-2, has been duly authorized, executed and delivered by such
designated Person and (4) upon the execution and delivery of the Acknowledgment
of Proposed Special Servicer, such designated Person shall be bound by the terms
of this Agreement and, subject to customary bankruptcy and insolvency exceptions
and customary equity exceptions, this Agreement shall be enforceable against
such designated Person in accordance with its terms; and (ii) if such terminated
Special Servicer has been removed by without cause, the Certificateholders of
the Controlling Class or the RREEF Textron B-Note
-258-
Holder, as applicable, shall have delivered to the Trustee and the terminated
Special Servicer such Certificateholders' joint and several undertaking to pay
any expenses incurred by the Trustee and such terminated Special Servicer in
connection with the transfer of special servicing responsibilities to a
successor Special Servicer.
(c) Any Special Servicer terminated pursuant to Section 3.25(a) shall
be deemed to have been so terminated simultaneously with the designated
successor's becoming the applicable Special Servicer hereunder; provided that
(i) the terminated Special Servicer shall be entitled to receive, in connection
with its termination, payment out of the Collection Accounts of all of its
accrued and unpaid Special Servicing Fees, as and to the extent provided in
Section 3.05(a), and reimbursement from the successor to such terminated Special
Servicer of all outstanding Servicing Advances made by such terminated Special
Servicer and all unpaid Advance Interest accrued on such outstanding Servicing
Advances (in which case the successor to such terminated Special Servicer shall
be deemed to have made such Servicing Advances at the same time that such
terminated Special Servicer had actually made them), (ii) such terminated
Special Servicer shall thereafter be entitled to Workout Fees, as and to the
extent expressly permitted by Section 3.11(c), and (iii) such terminated Special
Servicer shall continue to be entitled to the benefits of Section 6.03,
notwithstanding any such termination; and provided, further, that such
terminated Special Servicer shall continue to be obligated to pay (and entitled
to receive) all other amounts accrued to (or owing by) it under this Agreement
on or prior to the effective date of such termination. Such terminated Special
Servicer shall cooperate with the Trustee and the replacement to such terminated
Special Servicer in effecting the transfer of such terminated Special Servicer's
responsibilities and rights hereunder to its successor, including the transfer
within two Business Days of its termination becoming effective pursuant to
Section 3.25, to the replacement to such terminated Special Servicer for
administration by it of all cash amounts that at the time are or should have
been credited by such terminated Special Servicer to the REO Account or to any
Servicing Account or Reserve Account or should have been delivered to the Master
Servicers or that are thereafter received by or on behalf of such terminated
Special Servicer with respect to any Mortgage Loan or REO Property.
-259-
SECTION 3.26. Application of Default Charges.
(a) Any and all Default Charges that are actually received by or on
behalf of the Trust with respect to any Pooled Mortgage Loan or REO Pooled
Mortgage Loan thereto, shall be applied for the following purposes and in the
following order, in each case to the extent of the remaining portion of such
Default Charges:
first, to pay to the Fiscal Agent, the Trustee, the applicable Master
Servicer or the applicable Special Servicer, in that order, any Advance
Interest due and owing to such party on outstanding Advances made thereby
with respect to such Mortgage Loan or REO Mortgage Loan, as the case may
be;
second, to reimburse the Trust for any Advance Interest paid to the
Fiscal Agent, the Trustee, the applicable Master Servicer or the applicable
Special Servicer since the Closing Date with respect to such Mortgage Loan
or REO Mortgage Loan, as the case may be, which interest was paid from a
source other than Default Charges collected on such Mortgage Loan or REO
Mortgage Loan, as the case may be; and
third, to pay any remaining portion of such Default Charges (such
remaining portion, "Net Default Charges") as Additional Master Servicing
Compensation to the applicable Master Servicer, if such Default Charges
were accrued when the loan was not a Specially Serviced Mortgage Loan, and
otherwise to pay any remaining portion of such Default Charges as
Additional Special Servicing Compensation to the applicable Special
Servicer.
(b) Default Charges applied to reimburse the Trust pursuant to clause
second of Section 3.26(a) are intended to be available for distribution on the
Certificates pursuant to Section 4.01(a), subject to application pursuant to
Section 3.05(a) or 3.05(b) for any items payable out of general collections on
the Mortgage Pool. Default Charges applied to reimburse the Trust pursuant to
any of clause second of Section 3.26(a) shall be deemed to offset payments of
Advance Interest in the chronological order in which it was incurred with
respect to the subject Mortgage Loan or REO Mortgage Loan (whereupon such
Advance Interest shall thereafter be deemed to have been paid out of Default
Charges).
-260-
SECTION 3.27. Certain Matters Regarding the RREEF Textron B-Note
Holder.
(a) The Trustee hereby acknowledges receipt on the Closing Date of an
executed counterpart of an Agreement Among Noteholders substantially in the form
of Exhibit L hereto, dated as of the Closing Date, with respect to the RREEF
Textron Loan Pair (the "RREEF Textron Co-Lender Agreement"), which counterpart
has been executed by The Prudential Insurance Company of America, in its
capacity as RREEF Textron B-Note Holder. Pursuant to the RREEF Textron Co-Lender
Agreement, the RREEF Textron B-Note Holder accepts and agrees to be bound by the
terms of this Agreement insofar as it relates to the RREEF Textron B-Note
Mortgage Loan.
(b) From and after the date hereof, the parties hereto shall recognize
The Prudential Insurance Company of America as the RREEF Textron B-Note Holder;
provided that, if The Prudential Insurance Company of America shall transfer the
RREEF Textron B-Note Mortgage Loan pursuant to Section 14 of the RREEF Textron
Co-Lender Agreement, the parties hereto shall recognize as the RREEF Textron
B-Note Holder the most recent endorsee of the RREEF Textron B-Note that has
delivered to each of the parties hereto (i) a certification to the effect that
such endorsee is a Qualified Institutional Lender (as defined in the RREEF
Textron Co-Lender Agreement) and (ii) a fully executed assignment and assumption
agreement substantially in the form of Exhibit N hereto (the "RREEF Textron
B-Note Assignment and Assumption Agreement"), whereby the transferor of the
RREEF Textron B-Note shall assign all of its right, title and interest in, to
and under, and the prospective transferee shall assume all of the obligations of
the RREEF Textron B-Note Holder under, the RREEF Textron Co-Lender Agreement
and, further, the prospective transferee shall accept and agree to be bound by
the terms of this Agreement insofar as it relates to the RREEF Textron B-Note
Mortgage Loan.
(c) In any Insolvency Proceeding involving the RREEF Textron Borrower,
the RREEF Textron Special Servicer shall (i) file a proof of claim in respect of
the claims of the Trust and the RREEF Textron B-Note Holder against the RREEF
Textron Borrower, (ii) have the exclusive right to exercise any voting rights in
respect of the claims of the Trust and the RREEF Textron B-Note Holder against
the RREEF Textron Borrower and (iii) otherwise represent the Trust and the RREEF
Textron B-Note Holder in such Insolvency Proceeding, with due consideration
given to the priority in payment to the Trust, as holder of the RREEF Textron
Pooled Mortgage Loan, over the RREEF Textron B-Note Holder, as reflected in the
RREEF Textron Co-Lender Agreement and the other related Mortgage Loan Documents.
Without the written consent of the other,
-261-
neither the Trust nor the RREEF Textron B-Note Holder shall (except through the
RREEF Textron Special Servicer) acquiesce, petition or otherwise invoke or cause
any other Person to invoke an Insolvency Proceeding with respect to the RREEF
Textron Borrower or seek to appoint a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official with respect to the RREEF
Textron Borrower or all or any part of its property or assets or ordering the
winding-up or liquidation of the affairs of the RREEF Textron Borrower. In
addition, without the written consent of the other, neither the Trust nor the
RREEF Textron B-Note Holder shall (except through the RREEF Textron Special
Servicer) make any election, give any consent, commence any action or file any
motion or take any other action in any case by or against the RREEF Textron
Borrower under the Bankruptcy Code. The Trust and the RREEF Textron B-Note
Holder grant to the RREEF Textron Special Servicer an irrevocable power of
attorney coupled with an interest, and their proxy, for the purpose of
exercising any and all rights and taking any and all actions available to the
Trust and the RREEF Textron B-Note Holder in connection with any case by or
against the RREEF Textron Borrower under the Bankruptcy Code, including the
right to vote to accept or reject a plan, to make any election under Section
1111(b) of the Bankruptcy Code with respect to the RREEF Textron Loan Pair and
to file a motion to modify the automatic stay with respect to the RREEF Textron
Loan Pair. The Trust and the RREEF Textron B-Note Holder shall execute,
acknowledge and deliver to the RREEF Textron Special Servicer all such further
deeds, conveyances and instruments as may be reasonably necessary for the better
assuring and evidencing of the foregoing grant.
SECTION 3.28. Certain Rights and Powers of the RREEF Textron
B-Note Holder.
(a) Provided that no RREEF Textron Change of Control Event has occurred
and is continuing, the RREEF Textron B-Note Holder will be entitled to advise
the applicable Master Servicer and the RREEF Textron Special Servicer with
respect to that party's taking any of the actions identified in clauses (i)
through (viii) of the following sentence. In addition, notwithstanding anything
in any other Section of this Agreement to the contrary, but in all cases subject
to Section 3.28(c), provided that no RREEF Textron Change of Control Event has
occurred and is continuing, neither the applicable Master Servicer nor the RREEF
Textron Special Servicer will be permitted to take any of the actions identified
in clauses (i) through (viii) of this sentence, unless and until the applicable
Master Servicer or the RREEF Textron Special Servicer, as the case may be, has
notified the RREEF Textron B-Note Holder in writing of that party's intent to
take the particular action and the RREEF Textron B-Note Holder has consented
thereto in writing:
-262-
(i) any modification, amendment or waiver of the RREEF Textron Pooled
Mortgage Loan or the RREEF Textron B-Note Mortgage Loan that would have a
material adverse effect on the interests of the RREEF Textron B-Note
Holder;
(ii) any modification, amendment or waiver of the RREEF Textron B-Note
Mortgage Loan that would (A) result in an extension of the maturity of the
RREEF Textron B-Note Mortgage Loan, (B) result in a reduction of the
Mortgage Rate, the Monthly Payment or any Yield Maintenance Charge or
Prepayment Premium with respect to the RREEF Textron B-Note Mortgage Loan,
or (C) result in a deferral or forgiveness of interest or principal or
otherwise affect the amount or timing of any payment of interest or
principal with respect to the RREEF Textron B-Note Mortgage Loan;
(iii) any approval of a successor property manager with respect to, or
any material alteration of, the RREEF Textron Mortgaged Property;
(iv) any waiver of the requirements under the RREEF Textron Loan Pair
with respect to property insurers or the manner in which payments or other
collections on the RREEF Textron Loan Pair are held and/or invested;
(v) any waiver of a due-on-sale or due-on-encumbrance clause with
respect to the RREEF Textron Loan Pair or transfer of an interest in the
related Borrower or any related Mortgaged Property;
(vi) any substitution or material release of collateral with respect to
the RREEF Textron Loan Pair; and
(vii) any appointment or removal of a Sub-Servicer with respect to the
RREEF Textron Loan Pair.
(b) Notwithstanding anything in any other Section of this Agreement to
the contrary, but in all cases subject to Section 3.28(c), provided that no
RREEF Textron Change of Control Event has occurred and is continuing, the RREEF
Textron Special Servicer shall, at any time that a Servicing Transfer Event
exists with respect to the RREEF Textron Loan Pair:
(i) consult with the RREEF Textron B-Note Holder upon the occurrence of
any material event of default under the RREEF Textron Loan Pair and follow
the directions of the RREEF Textron B-Note Holder
-263-
with respect to the resolution of that event of default or the liquidation
of the RREEF Textron Loan Pair; and
(ii) obtain the prior written consent of the RREEF Textron B-Note
Holder prior to taking any of the following actions--
(A) foreclosure upon or acquisition of the RREEF Textron Mortgaged
Property,
(B) any sale of any REO Property relating to the RREEF Textron Loan
Pair,
(C) any action to bring the RREEF Textron Mortgaged Property into
compliance with applicable environmental laws, and
(D) any release of the related Borrower or any guarantor from
liability under the RREEF Textron Loan Pair.
(c) If, and for so long as, a RREEF Textron Change of Control Event has
occurred and is continuing, the RREEF Textron B-Note Holder shall cease to have
the rights provided for in Section 3.28(a) and Section 3.28(b), and neither the
applicable Master Servicer nor the RREEF Textron Special Servicer shall have any
right or obligation to consult with or to seek and/or obtain consent or approval
from the RREEF Textron B-Note Holder prior to acting, and the provisions of this
Agreement requiring such shall be of no effect. Furthermore, no advice,
direction or objection given or made by the RREEF Textron B-Note Holder, as
contemplated by Section 3.28(a) or Section 3.28(b), may (and the applicable
Master Servicer and the RREEF Textron Special Servicer shall each ignore and act
without regard to any such advice, direction or objection that the Master
Servicer or the RREEF Textron Special Servicer, as the case may be, has
determined, in its reasonable, good faith judgment, would) (A) require or cause
the applicable Master Servicer or the RREEF Textron Special Servicer to violate
applicable law, the terms of the RREEF Textron Loan Pair or the RREEF Textron
Co-Lender Agreement or any other Section of this Agreement, including that
party's obligation to act in accordance with the Servicing Standard, (B) result
in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor
Trust Event with respect to either Grantor Trust Pool, or (C) materially expand
the scope of the applicable Master Servicer's or either Special Servicer's
responsibilities under this Agreement; provided that, for so long as no RREEF
Textron Change of Control Event has occurred and is continuing, the RREEF
Textron B-Note Holder may freely exercise any discretion granted to the lender
-264-
under the related Mortgage Loan Documents (as in effect on the Closing Date) in
connection with the release or substitution of real estate collateral for the
RREEF Textron Loan Pair in accordance with Sections 10 and 11 of the related
Mortgage Note).
(d) Upon an event of default under the RREEF Textron Pooled Mortgage
Loan, the RREEF Textron B-Note Holder will be entitled to cure such event of
default, in which case the RREEF Textron Special Servicer will refrain from
taking any action against the related Borrower, any related guarantor or any of
the related Mortgaged Properties. In connection therewith, the RREEF Textron
B-Note Holder shall have an additional five days beyond any grace period for the
related Borrower to have remedied such event of default. Each of the applicable
Master Servicer and the RREEF Textron Special Servicer shall notify the RREEF
Textron B-Note Holder in writing of any event of default under the RREEF Textron
Pooled Mortgage Loan, promptly following that party's gaining actual knowledge
of such event of default.
(e) If the RREEF Textron Pooled Mortgage Loan shall at any time become
90 days delinquent with respect to any Monthly Payment due thereunder, the
applicable Master Servicer shall promptly so notify the Trustee, the RREEF
Textron Special Servicer and the RREEF Textron B-Note Holder. Pursuant to the
RREEF Textron Co-Lender Agreement, for 180 days following its receipt of such
notice, provided that the RREEF Textron Pooled Mortgage Loan remains 90 or more
days delinquent, the RREEF Textron B-Note Holder shall be entitled to purchase
the RREEF Textron Pooled Mortgage Loan at the related Purchase Price. In the
event of any such purchase, the Purchase Price for the RREEF Textron Pooled
Mortgage Loan shall be deposited into such Master Servicer's Collection Account,
and the Trustee, upon receipt of an Officer's Certificate from such Master
Servicer to the effect that such deposit has been made, shall release or cause
to be released to the RREEF Textron B-Note Holder or its designee the Mortgage
File for the RREEF Textron Pooled Mortgage Loan, and shall execute and deliver
such instruments of transfer or assignment, in each case without recourse, as
shall be provided to it and are reasonably necessary to vest in the RREEF
Textron B-Note Holder ownership of the RREEF Textron Pooled Mortgage Loan. In
connection with any such purchase, the Master Servicer and the RREEF Textron
Special Servicer shall each deliver any portion of the related Servicing File in
its possession to the RREEF Textron B-Note Holder.
(f) Each Certificateholder acknowledges and agrees, by its acceptance
of its Certificates, that: (i) the RREEF Textron B-Note Holder may have special
relationships and interests that conflict with those of Holders of one
-265-
or more Classes of Certificates; (ii) the RREEF Textron B-Note Holder may act
solely in its own interest, without regard to the interests of the Holders of
any Class of Certificates; (iii) the RREEF Textron B-Note Holder does not have
any duties to the Holders of any Class of Certificates; and (iv) the RREEF
Textron B-Note Holder shall have no liability whatsoever for having acted in its
own interests, and in conflict with the interests of the Holders of one or more
Classes of Certificates, and no Certificateholder may take any action whatsoever
against the RREEF Textron B-Note Holder or any director, officer, employee,
agent or principal thereof for having so acted.
-266-
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Certificate Administrator shall
apply amounts on deposit in the Distribution Account for the following purposes
and in the following order of priority, in each case to the extent of the
remaining portion of the Available Distribution Amount for such Distribution
Date:
(1) to make distributions of interest to the Holders of the respective
Classes of the Senior Certificates, up to an amount equal to, and pro rata
as among such Classes in accordance with, all Distributable Certificate
Interest in respect of each such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(2) to make distributions of principal to the Holders of the respective
Classes of the Class A Certificates, allocable as among such Classes of
Certificateholders as provided below, up to an amount (not to exceed the
aggregate Class Principal Balance of such Classes of Certificates
outstanding immediately prior to such Distribution Date) equal to the
entire Principal Distribution Amount for such Distribution Date; and
(3) to make distributions to the Holders of the respective Classes of
the Class A Certificates, up to an amount equal to, pro rata as among such
Classes of Certificateholders in accordance with, and in reimbursement of,
all Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to each such Class of Certificates pursuant to Section 4.04(a)
and not previously reimbursed.
(4) to make distributions of interest to the Holders of the Class B
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
-267-
(5) after the Class Principal Balances of the Class A Certificates have
been reduced to zero, to make distributions of principal to the Holders of
the Class B Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of the Class A Certificates
pursuant to clause (2) above);
(6) to make distributions to the Holders of the Class B Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
(7) to make distributions of interest to the Holders of the Class C
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(8) after the Class Principal Balance of the Class B Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class C Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(9) to make distributions to the Holders of the Class C Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
(10) to make distributions of interest to the Holders of the Class D
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
-268-
(11) after the Class Principal Balance of the Class C Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class D Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(12) to make distributions to the Holders of the Class D Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
(13) to make distributions of interest to the Holders of the Class E
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(14) after the Class Principal Balance of the Class D Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class E Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(15) to make distributions to the Holders of the Class E Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
(16) to make distributions of interest to the Holders of the Class F
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
-269-
(17) after the Class Principal Balance of the Class E Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class F Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(18) to make distributions to the Holders of the Class F Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
(19) to make distributions of interest to the Holders of the Class G
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(20) after the Class Principal Balance of the Class F Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class G Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(21) to make distributions to the Holders of the Class G Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
(22) to make distributions of interest to the Holders of the Class H
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
-270-
(23) after the Class Principal Balance of the Class G Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class H Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(24) to make distributions to the Holders of the Class H Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
(25) to make distributions of interest to the Holders of the Class J
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(26) after the Class Principal Balance of the Class H Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class J Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(27) to make distributions to the Holders of the Class J Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
(28) to make distributions of interest to the Holders of the Class K
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
-271-
(29) after the Class Principal Balance of the Class J Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class K Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(30) to make distributions to the Holders of the Class K Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
(31) to make distributions of interest to the Holders of the Class L
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(32) after the Class Principal Balance of the Class K Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class L Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(33) to make distributions to the Holders of the Class L Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
(34) to make distributions of interest to the Holders of the Class M
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
-272-
(35) after the Class Principal Balance of the Class L Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class M Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(36) to make distributions to the Holders of the Class M Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
(37) to make distributions of interest to the Holders of the Class N
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(38) after the Class Principal Balance of the Class M Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class N Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(39) to make distributions to the Holders of the Class N Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
(40) to make distributions of interest to the Holders of the Class P
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
-273-
(41) after the Class Principal Balance of the Class N Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class P Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of any other Class of Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
(42) to make distributions to the Holders of the Class P Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates pursuant to Section 4.04(a) and not previously reimbursed;
and
(43) to make distributions to the Holders of the Class R Certificates,
up to an amount equal to the excess, if any, of (A) the Available
Distribution Amount for such Distribution Date, over (B) the aggregate
distributions made in respect of the other Classes of Certificates on such
Distribution Date pursuant to the prior clauses of this Section 4.01(a).
Any distributions of interest made with respect to the Class X-1
Certificates or the Class X-2 Certificates on any Distribution Date pursuant to
clause (1) above shall be deemed to have been allocated among the respective
REMIC III Components of such Class of Certificates on a pro rata basis in
accordance with the respective amounts of Accrued Component Interest for such
REMIC III Components for such Distribution Date.
On each Distribution Date prior to the Class A Principal Distribution
Cross-Over Date, the Certificate Administrator shall pay the distributions of
principal made on the Class A Certificates on such Distribution Date, pursuant
to clause (2) above, first, to the Holders of the Class A-1 Certificates, until
the Class Principal Balance of such Class has been reduced to zero, and, second,
to the Holders of the Class A-2 Certificates, until the Class Principal Balance
of such Class has been reduced to zero. On any Distribution Date coinciding with
or following the Class A Principal Distribution Cross-Over Date, but prior to
the Final Distribution Date, the Certificate Administrator shall pay the
distributions of principal made on the Class A Certificates on such Distribution
Date pursuant to clause (2) above to the Holders of all the Classes of the Class
A Certificates, on a pro rata basis, in accordance with the respective Class
Principal Balances of such Classes outstanding immediately prior to such
-274-
Distribution Date, until the Class Principal Balance of each such Class has been
reduced to zero.
(b) Funds on deposit in the Distribution Account on each Distribution
Date that represent Prepayment Premiums or Yield Maintenance Charges collected
with respect to any Pooled Mortgage Loan or deemed collected with respect to a
successor REO Mortgage Loan thereto during the related Collection Period shall
be distributable as follows. On each Distribution Date, the Certificate
Administrator shall withdraw from the Distribution Account and distribute to the
Holders of each Class of the Class A, Class B, Class C, Class D, Class E, Class
F and/or Class G Certificates to whom the Certificate Administrator is to make a
distribution in respect of principal pursuant to Section 4.01(a) an amount equal
to the product of (i) full amount of the funds representing each respective
Prepayment Premium or Yield Maintenance Charge collected with respect to any
Pooled Mortgage Loan or deemed collected with respect to a successor REO
Mortgage Loan thereto during the related Collection Period, multiplied by (ii) a
fraction (which in no event may be greater than 1.0 or less than 0.0), the
numerator of which is equal to the excess, if any, of the Pass-Through Rate for
such Class of Certificates for the Interest Accrual Period related to such
Distribution Date over the relevant Discount Rate, and the denominator of which
is equal to the excess, if any, of the Mortgage Rate for such Pooled Mortgage
Loan (or successor REO Mortgage Loan) over the relevant Discount Rate (provided
that if the denominator of such fraction is equal to zero, such fraction shall
be deemed to equal 0.0), and further multiplied by (iii) a fraction, the
numerator of which is equal to the amount of principal to be distributed on such
Class of Principal Balance Certificates on such Distribution Date pursuant to
Section 4.01(a) and the denominator of which is equal to the aggregate amount of
principal to be distributed on the Principal Balance Certificates on such
Distribution Date. If such Distribution Date occurs prior to or in October 2006,
the Certificate Administrator shall withdraw from the Distribution Account any
funds on deposit in the Distribution Account that represent the remaining
portion of such Prepayment Premium or Yield Maintenance Charge and distribute
(i) 85% of such funds to the Holders of the Class X-1 Certificates and (ii) 15%
of such funds to the Holders of the Class X-2 Certificates. If such Distribution
Date occurs after October 2006, the Certificate Administrator shall withdraw
from the Distribution Account any funds on deposit in the Distribution Account
that represent the remaining portion of such Prepayment Premium or Yield
Maintenance Charge and distribute 100% of such funds to the Holders of the Class
X-1 Certificates. Any funds distributed on a Class of Certificates in respect of
each Prepayment Premium or Yield Maintenance Charge pursuant to this
-275-
Section 4.01(b) shall constitute an "Additional Yield Amount" for such Class of
Certificates.
For purposes of the immediately preceding paragraph, the relevant
"Discount Rate" in connection with any Prepayment Premium or Yield Maintenance
Charge collected on any prepaid Mortgage Loan or REO Mortgage Loan during the
Collection Period related to any Distribution Date shall be a rate per annum
equal to (i) if a discount rate was used in the calculation of the applicable
Prepayment Premium or Yield Maintenance Charge pursuant to the terms of the
relevant Pooled Mortgage Loan (or successor REO Mortgage Loan), such discount
rate (as reported by the applicable Master Servicer) or (ii) if a discount rate
was not used in the calculation of the applicable Prepayment Premium or Yield
Maintenance Charge pursuant to the terms of the relevant Pooled Mortgage Loan
(or successor REO Mortgage Loan), the yield calculated by the linear
interpolation of the yields (as reported under the heading "U.S. Government
Securities/Treasury Constant Maturities" in Federal Reserve Statistical Release
H.15 (519) published by the Federal Reserve Board for the week most recently
ended before the date of the relevant prepayment (or deemed prepayment) of U.S.
Treasury constant maturities with a maturity date, one longer and one shorter,
most nearly approximating the related Maturity Date of the Pooled Mortgage Loan
(in the case of a Pooled Mortgage Loan (or successor REO Mortgage Loan thereto)
that is not an ARD Mortgage Loan) or the related Anticipated Repayment Date (in
the case of a Pooled Mortgage Loan (or successor REO Mortgage Loan thereto) that
is an ARD Mortgage Loan, such interpolated yield converted to a monthly
equivalent yield. If Federal Reserve Statistical Release H.15 (519) is no longer
published, the Certificate Administrator shall select a comparable publication
as the source of the applicable yields of U.S. Treasury constant maturities.
Any Additional Yield Amount distributed in respect of the Class X-1
Certificates on any Distribution Date shall be deemed to have been distributed
in respect of the respective REMIC III Components of the Class X-1 Certificates,
on a pro rata basis in accordance with the respective amounts by which the
Component Notional Amounts of such REMIC III Components were reduced on such
Distribution Date by deemed distributions of principal pursuant to Section
4.01(i). Any Additional Yield Amount distributed in respect of the Class X-2
Certificates on any Distribution Date shall be deemed to have been distributed
in respect of the respective REMIC III Components of the Class X-2 Certificates,
on a pro rata basis in accordance with the respective amounts by which the
Component Notional Amounts of such REMIC III Components were reduced on such
Distribution Date by deemed distributions of principal pursuant
-276-
to Section 4.01(i) or, in the absence of any such reduction, in accordance with
the Component Notional Amount of such REMIC III Components.
(c) On each Distribution Date, the Certificate Administrator shall
withdraw from the Distribution Account any amounts then on deposit in the Class
V Sub-Account of the Distribution Account that represent Post-ARD Additional
Interest collected or deemed collected in respect of the ARD Mortgage Loans or
any successor REO Mortgage Loans during the related Collection Period and shall
distribute such amounts to the Holders of the Class V Certificates.
(d) All distributions made with respect to each Class of Certificates
on each Distribution Date shall be allocated pro rata among the outstanding
Certificates in such Class based on their respective Percentage Interests.
Except as otherwise provided below, all such distributions with respect to each
Class on each Distribution Date shall be made to the Certificateholders of the
respective Class of record at the close of business on the related Record Date
and shall be made by wire transfer of immediately available funds to the account
of any such Certificateholder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided the
Certificate Administrator with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent Distribution Dates), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. The final distribution on each Certificate
(determined, in the case of a Principal Balance Certificate, without regard to
any possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to such Certificate pursuant to Section 4.04(a))
will be made in a like manner, but only upon presentation and surrender of such
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution. Prior
to any termination of the Trust Fund pursuant to Section 9.01, any distribution
that is to be made with respect to a Certificate in reimbursement of a Realized
Loss or Additional Trust Fund Expense previously allocated thereto, which
reimbursement is to occur after the date on which such Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Certificateholder that surrendered such Certificate
as such address last appeared in the Certificate Register or to any other
address of which the Certificate Administrator was subsequently notified in
writing. If such check is returned to the Certificate Administrator, then the
Certificate Administrator, directly or through an agent, shall take such
reasonable steps to contact the related Holder and deliver such check as it
shall deem appropriate. Any funds in respect of a check returned to the
Certificate Administrator shall be set aside by the Certificate
-277-
Administrator and held uninvested in trust and credited to the account of the
appropriate Holder. The costs and expenses of locating the appropriate Holder
and holding such funds shall be paid out of such funds. No interest shall accrue
or be payable to any former Holder on any amount held in trust hereunder. If the
Certificate Administrator has not, after having taken such reasonable steps,
located the related Holder by the second anniversary of the initial sending of a
check, the Certificate Administrator shall, subject to applicable law,
distribute the unclaimed funds to the Class R Certificateholders.
(e) Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm for which it acts as agent. Each indirect
participating brokerage firm shall be responsible for disbursing funds to the
related Certificate Owners that it represents. None of the Trustee, the
Certificate Administrator, the Certificate Registrar, the Depositor, the Special
Servicers or the Master Servicers shall have any responsibility therefor except
as otherwise provided by this Agreement or applicable law. The Trustee and the
Depositor shall perform their respective obligations under each of the Letter of
Representations among the Depositor, the Trustee and the initial Depository
dated as of the Closing Date and pertaining to the Book-Entry Certificates, a
copy of which Letters of Representation are attached hereto as Exhibit B.
(f) The rights of the Certificateholders to receive distributions from
the proceeds of the Trust Fund with respect to the Certificates, and all rights
and interests of the Certificateholders in and to such distributions, shall be
as set forth in this Agreement. Neither the Holders of any Class of Certificates
nor any party hereto shall in any way be responsible or liable to the Holders of
any other Class of Certificates with respect to amounts properly previously
distributed on the Certificates.
(g) Except as otherwise provided in Section 9.01, whenever the
Certificate Administrator receives written notification of or expects that the
final distribution with respect to any Class of Certificates (determined, in the
case of a Class of Principal Balance Certificates, without regard to any
possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to such Class of Certificates pursuant to Section
4.04(a)) will be made on the next Distribution Date, the Certificate
Administrator shall, no later
-278-
than the second Business Day prior to such Distribution Date, mail to each
Holder of record of such Class of Certificates on such date a notice to the
effect that:
(i) the Certificate Administrator expects that the final distribution
with respect to such Class of Certificates will be made on such
Distribution Date but only upon presentation and surrender of such
Certificates at the office of the Certificate Registrar or at such other
location therein specified, and
(ii) no interest shall accrue on such Certificates from and after the
end of the Interest Accrual Period for such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Certificate Administrator shall mail a second notice to the remaining
non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, then the Certificate Administrator, directly
or through an agent, shall take such steps to contact the remaining
non-tendering Certificateholders concerning the surrender of their Certificates
as it shall deem appropriate. The costs and expenses of holding such funds in
trust and of contacting such non-tendering Certificateholders following the
first anniversary of the delivery of such second notice thereto shall be paid
out of such funds. No interest shall accrue or be payable to any former Holder
on any amount held in trust pursuant to this paragraph. If all of the
Certificates as to which notice has been given pursuant to this Section 4.01(g)
shall not have been surrendered for cancellation by the second anniversary of
the delivery of the second notice, the Certificate Administrator shall, subject
to applicable law, distribute to the Class R Certificateholders all unclaimed
funds and other assets which remain subject thereto.
(h) Notwithstanding any other provision of this Agreement, the
Certificate Administrator shall comply with all federal withholding requirements
respecting payments to Certificateholders of interest or original issue discount
that the Certificate Administrator reasonably believes are applicable under the
Code. The consent of Certificateholders shall not be required for such
withholding. If
-279-
the Certificate Administrator does withhold any amount from interest or original
issue discount payments or advances thereof to any Certificateholder pursuant to
federal withholding requirements, the Certificate Administrator shall indicate
the amount withheld to such Certificateholders.
(i) All distributions made in respect of each Class of Principal
Balance Certificates on each Distribution Date (including the Final Distribution
Date) pursuant to Section 4.01(a) or Section 4.01(b) shall be deemed to have
first been distributed from REMIC II to REMIC III with respect to the
Corresponding REMIC II Regular Interest(s) for such Class of Certificates; and
all distributions made with respect to each Class of Interest Only Certificates
on each Distribution Date pursuant to Section 4.01(a) or Section 4.01(b), and
allocable to any particular REMIC III Component of such Class of Certificates,
shall be deemed to have first been distributed from REMIC II to REMIC III in
respect of the Corresponding REMIC II Regular Interest for such REMIC III
Component. In each case, if such distribution on any such Class of Certificates
was a distribution of accrued interest, of principal, of additional interest (in
the form of one or more Additional Yield Amounts) or in reimbursement of any
Realized Losses and Additional Trust Fund Expenses previously allocated to such
Class of Certificates, then the corresponding distribution deemed to be made on
a REMIC II Regular Interest pursuant to the preceding sentence (and, if
applicable the next paragraph) shall be deemed to also be, respectively, a
distribution of accrued interest, of principal, of additional interest (in the
form of one or more Additional Yield Amounts) or in reimbursement of any
Realized Losses and Additional Trust Fund Expenses previously allocated to REMIC
III in respect of such REMIC II Regular Interest.
If two or more REMIC II Regular Interests have the same alphabetical
designation (although different numerical designations) (such as but not limited
to the group of REMIC II Regular Interests consisting of REMIC II Regular
Interest A-1-1, REMIC II Regular Interest A-1-2, REMIC II Regular Interest
A-1-3, REMIC II Regular Interest A-1-4, REMIC II Regular Interest A-1-5 and
REMIC II Regular Interest A-1-6), (i) deemed distributions of accrued interest
made on such REMIC II Regular Interests shall be allocated among such REMIC II
Regular Interests on a pro rata basis in accordance with the respective amounts
of accrued interest deemed payable on each such REMIC II Regular Interest for
the subject Distribution Date; (ii) deemed distributions of principal made on
such REMIC II Regular Interests shall be allocated sequentially to such REMIC II
Regular Interests in ascending order of that portion of their alphanumeric
designations that follows the portion thereof that is the same as the
alphanumeric designation of the Class of Principal Balance Certificates for
which such REMIC II Regular Interests constitute Corresponding REMIC II Regular
-280-
Interests (for example, in the case of the group of REMIC II Regular Interests
consisting of REMIC II Regular Interest A-1-1, REMIC II Regular Interest A-1-2,
REMIC II Regular Interest A-1-3, REMIC II Regular Interest A-1-4, REMIC II
Regular Interest A-1-5 and REMIC II Regular Interest A-1-6, first, to REMIC II
Regular Interest A-1-1; second, to REMIC II Regular Interest A-1-2; third, to
REMIC II Regular Interest A-1-3; fourth, to REMIC II Regular Interest A-1-4;
fifth, to REMIC II Regular Interest A-1-5; and, sixth, to REMIC II Regular
Interest A-1-6), in each case until the Uncertificated Principal Balance of such
REMIC II Regular Interest is reduced to zero; (iii) deemed distributions of
additional interest (in the form of one or more Additional Yield Amounts) made
on such REMIC II Regular Interests shall be allocated sequentially to such REMIC
II Regular Interests in ascending order of that portion of their alphanumeric
designations that follows the portion thereof that is the same as the
alphanumeric designation of the Class of Principal Balance Certificates for
which such REMIC II Regular Interests constitute Corresponding REMIC II Regular
Interests, in each case for so long as the Uncertificated Principal Balance of
such REMIC II Regular Interest is greater than zero; and (iv) deemed
distributions in reimbursement of previously allocated Realized Losses and
Additional Trust Fund Expenses made on such REMIC II Regular Interests, shall be
allocated among such REMIC II Regular Interests on a pro rata basis in
accordance with the respective amounts deemed reimbursable with respect thereto
for the subject Distribution Date.
The actual distributions made by the Certificate Administrator on each
Distribution Date in respect of the REMIC III Certificates pursuant to Section
4.01(a) or Section 4.01(b), as applicable, shall be deemed to have been so made
from the amounts deemed distributed with respect to the REMIC II Regular
Interests on such Distribution Date pursuant to this Section 4.01(i).
Notwithstanding the deemed distributions on the REMIC II Regular Interests
described in this Section 4.01(i), actual distributions of funds from the
Collection Account shall be made only in accordance with Section 4.01(a) or
Section 4.01(b), as applicable.
(j) On each Distribution Date, including the Final Distribution Date,
the Available Distribution Amount for such date shall be deemed to have first
been distributed from REMIC I to REMIC II in respect of the REMIC I Regular
Interests, in each case to the extent of the remaining portions of such funds,
for the following purposes and in the following order of priority:
(i) as deemed distributions of interest with respect to all the REMIC I
Regular Interests, up to an amount equal to, and pro rata in accordance
with, all Uncertificated Distributable Interest with respect to
-281-
each REMIC I Regular Interest for such Distribution Date and, to the extent
not previously deemed distributed, for all prior Distribution Dates;
(ii) as deemed distributions of principal with respect to all the REMIC
I Regular Interests, up to an amount equal to, and pro rata in accordance
with, as to each REMIC I Regular Interest, the portion of the Principal
Distribution Amount for such Distribution Date attributable to the related
Mortgage Loan or any successor REO Mortgage Loan ; and
(iii) as deemed distributions with respect to all the REMIC I Regular
Interests, up to an amount equal to, pro rata in accordance with, and in
reimbursement of, any Realized Losses and Additional Trust Fund Expenses
previously allocated to each REMIC I Regular Interest (with compounded
interest).
Each Additional Yield Amount distributed to any Class of Regular
Interest Certificates on any Distribution Date shall, in each case, be deemed to
have been distributed from REMIC I to REMIC II in respect of the REMIC I Regular
Interest corresponding to the prepaid Mortgage Loan or REO Mortgage Loan, as the
case may be, in respect of which the related Prepayment Premium or Yield
Maintenance Charge was received.
SECTION 4.02. Certificate Administrator Reports; Servicer
Reporting.
(a) Certificate Administrator Reports and Information. Based solely on
information provided to the Certificate Administrator by the Master Servicers
pursuant to Sections 3.12, 4.02(b) and 4.02(f), the Certificate Administrator
shall prepare (or cause to be prepared) and, on each Distribution Date, provide
or make available electronically (or, upon request, by first class mail) to each
Privileged Person a statement substantially in the form of, and containing the
information set forth in, Exhibit D-1 hereto, including the CMSA Bond Level File
and the CMSA Collateral Summary File (the "Certificate Administrator Report"),
detailing the distributions on such Distribution Date and the performance, both
in the aggregate and individually to the extent available, of the Mortgage Loans
and the Mortgaged Properties; provided that the Certificate Administrator need
not deliver to the Depositor, the Master Servicers, the Special Servicers, the
Underwriters, the Rating Agencies or the Controlling Class Representative any
Certificate Administrator Report that has been made available to such Person via
the Certificate Administrator's internet website as provided below; and
provided, further, that the Certificate Administrator has no affirmative
obligation to discover the identities of Certificate Owners and need only react
to
-282-
Persons claiming to be Certificate Owners in accordance with Section 5.06; and
provided, further, that during any period that reports are required to be filed
with the Commission with respect to the Trust pursuant to Section 15(d) of the
Exchange Act, each recipient of the Certificate Administrator Report shall be
deemed to have agreed to keep confidential the information therein until such
Certificate Administrator Report is filed with the Commission.
On each Distribution Date, the Certificate Administrator shall provide
or make available electronically (or, upon request, by first class mail) to each
Privileged Person each file and report comprising the CMSA Investor Reporting
Package, to the extent received by the Certificate Administrator since the prior
Distribution Date (or, in the case of the initial Distribution Date, since the
Closing Date); provided that during any period that reports are required to be
filed with the Commission with respect to the Trust pursuant to Section 15(d) of
the Exchange Act, each recipient of such files and reports shall be deemed to
have agreed to keep confidential the information in any such file or report
until such particular file or report is filed with the Commission. Such files
and reports shall be so provided or made available such that (i) in the case of
the CMSA Loan Setup File, the CMSA Loan Periodic Update File, the CMSA Financial
File, the CMSA Property File and (with respect to any Collection Period that
commences at any time following the date that is nine (9) months following
adoption of the form thereof by the CMSA) the CMSA Loan Level Reserve Report and
the CMSA Reconciliation of Funds Report, such file or report presents
information for all of the Mortgage Loans and/or Mortgaged Properties (as
applicable) without segregation according to the identities of the Master
Servicers and (ii) in the case of the CMSA Delinquent Loan Status Report, the
CMSA Historical Loan Modification Report, the CMSA Historical Liquidation
Report, the CMSA REO Status Report, the CMSA Servicer Watch List, the CMSA
Comparative Financial Status Report, the CMSA Operating Statement Analysis
Report, the CMSA NOI Adjustment Worksheet and (with respect to any Collection
Period that commences at any time following the date that is nine (9) months
following adoption of the form thereof by the CMSA) the CMSA Special Servicer
Defaulted Loan Report, such report presents information separately tabbed for
the Mortgage Loans and/or Mortgaged Properties or REO Properties (as applicable)
for which each respective Master Servicer is the applicable Master Servicer.
The Certificate Administrator shall have no obligation to provide the
information or reports described in this Section 4.02(a) until it has received
the requisite information or reports from the Master Servicers provided for
herein, and the Certificate Administrator shall not be in default hereunder due
to a delay in providing such information and reports caused by the failure of
any Master Servicer or Special Servicer to timely deliver any information or
reports
-283-
hereunder. None of the Master Servicers, the Special Servicers or the
Certificate Administrator shall be responsible for the accuracy or completeness
of any information supplied to it by a Borrower, each other or a third party,
and accepted by it in good faith, that is included in any reports, statements,
materials or information prepared or provided by either Master Servicer, either
Special Servicer or the Certificate Administrator, as applicable. None of the
Certificate Administrator, the Master Servicers or the Special Servicers shall
have any obligation to verify the accuracy or completeness of any information
provided by a Borrower, a third party or each other.
The Certificate Administrator shall make available each month, to any
interested person, the related Certificate Administrator Report via its internet
website initially located at "▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇". In addition, the
Certificate Administrator shall make available each month, via its internet
website on a restricted basis solely to Privileged Persons, (i) the Unrestricted
Servicer Reports, (ii) the CMSA Bond Level File and the CMSA Collateral Summary
File, and (iii) as a convenience to interested persons (and not in furtherance
of the distribution thereof under the securities laws), the Prospectus, this
Agreement, each of the Pooled Mortgage Loan Purchase Agreements and the ▇▇▇▇▇▇▇
Bank Mortgage Loan Purchase Agreement (including, in each case, all schedules
and exhibits thereto). Upon notification by the Depositor that Bear, ▇▇▇▇▇▇▇ &
Co. Inc. has sold the Non-Registered Certificates to unaffiliated third parties,
the Certificate Administrator shall remove the restriction provided for in the
preceding sentence and shall make such reports and documents available to any
interested person. The Certificate Administrator shall also make available each
month, on a restricted basis to any Privileged Person via its internet website,
(i) the Restricted Servicer Reports, and (ii) any other report at the direction
of the Depositor. During any period that reports are required to be filed with
the Commission with respect to the Trust pursuant to Section 15(d) of the
Exchange Act, access to information regarding the Trust on the Certificate
Administrator's internet website will be conditioned to the party attempting to
gain such access electronically agreeing to keep confidential any such
information that has not been filed with the Commission.
The Certificate Administrator makes no representations or warranties as
to the accuracy or completeness or any report, document or other information
made available on its internet website and assumes no responsibility therefor.
In addition, the Certificate Administrator may disclaim responsibility for any
information distributed by the Certificate Administrator for which it is not the
original source.
-284-
In connection with providing access to the Certificate Administrator's
internet website, the Certificate Administrator may require registration and the
acceptance of a disclaimer (provided that such website provides thereon
electronic means of fulfilling such registration and acceptance for purposes of
obtaining access to Unrestricted Servicer Reports). The Certificate
Administrator shall not be liable for the dissemination of information in
accordance herewith. Questions regarding the Certificate Administrator's
internet website can be directed to the Certificate Administrator's CMBS
customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇ or such other number as the Certificate
Administrator may hereinafter specify.
The Certificate Administrator shall be entitled to rely on but shall
not be responsible for the content or accuracy of any information provided by
third parties for purposes of preparing the Certificate Administrator Report and
may affix thereto any disclaimer it deems appropriate in its reasonable
discretion (without suggesting liability on the part of any other party hereto).
(b) Certain Tax-Related Reporting to Certificateholders by the
Certificate Administrator. Within a reasonable period of time after the end of
each calendar year, the Certificate Administrator shall prepare, or cause to be
prepared, and mail to each Person who at any time during the calendar year was a
Certificateholder (i) a statement containing the aggregate information set forth
on page 2 of Exhibit D-1 hereto for such calendar year or applicable portion
thereof during which such person was a Certificateholder and (ii) such other
customary information as the Certificate Administrator deems necessary or
desirable for Certificateholders to prepare their federal, state and local
income tax returns, including the amount of original issue discount accrued on
the Certificates, if applicable. The obligations of the Certificate
Administrator in the immediately preceding sentence shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Certificate Administrator pursuant to any requirements of the
Code. As soon as practicable following the request of any Certificateholder in
writing, the Certificate Administrator shall furnish to such Certificateholder
such information regarding the Mortgage Loans and the Mortgaged Properties as
such Certificateholder may reasonably request and, as has been furnished to, or
may otherwise be in the possession of, the Certificate Administrator. Each of
the Master Servicers and the Special Servicers shall promptly provide to the
Depositor and the Certificate Administrator such information regarding the
Mortgage Loans and the Mortgaged Properties for which it is the applicable
Master Servicer or the applicable Special Servicer, as the case may be, as such
party may reasonably request and that has been furnished to, or may otherwise be
in the possession of, such Master Servicer or such Special Servicer, as the case
may be.
-285-
(c) CMSA Loan Periodic Update Files. Not later than 9:00 a.m. (New York
City time) on the third Business Day following each Determination Date (which is
also the second Business Day preceding the related Distribution Date), the
Servicer Report Administrator shall deliver to the Certificate Administrator the
CMSA Loan Periodic Update File, combining information with respect to the
Mortgage Loans as to which it is the applicable Master Servicer and information
delivered to the Servicer Report Administrator by the other Master Servicer with
respect to the Mortgage Loans as to which such other Master Servicer is the
applicable Master Servicer (as described in the immediately succeeding
sentence), without segregation according to the identities of the Master
Servicers, and reflecting information as of the close of business on such
Determination Date. Not later than 9:00 a.m. (New York City time) on the second
Business Day following each Determination Date, the Master Servicer that is not
the Servicer Report Administrator shall deliver to the Servicer Report
Administrator the CMSA Loan Periodic Update File with respect to the Mortgage
Loans as to which it is the applicable Master Servicer, reflecting information
as of the close of business on the such Determination Date. The CMSA Loan
Periodic Update File delivered by each Master Servicer as described above shall
be in an electronic format that is mutually acceptable to the two Master
Servicers and the Certificate Administrator. Each CMSA Loan Periodic Update File
and any written information supplemental thereto shall include such information
with respect to the subject Mortgage Loans that is reasonably required by the
Certificate Administrator for purposes of making the calculations and preparing
the reports for which the Certificate Administrator is responsible pursuant to
Section 4.01, this Section 4.02, Section 4.04 or any other section of this
Agreement, as set forth in reasonable written specifications or guidelines
issued by the Certificate Administrator from time to time. Such information may
be delivered to the Certificate Administrator by the Servicer Report
Administrator and, if applicable, to the Servicer Report Administrator by the
other Master Servicer by electronic mail or in such electronic or other form as
may be reasonably acceptable to the two Master Servicers and the Certificate
Administrator.
Notwithstanding the foregoing, the parties agree that the CMSA Loan
Periodic Update File required to be delivered by each Master Servicer in
November 2002 will be based solely upon information generated from actual
collections received by such Master Servicer and from information the respective
Pooled Mortgage Loan Sellers deliver or cause to be delivered to such Master
Servicer (including but not limited to information prepared by third party
servicers of the subject Mortgage Loans with respect to the period prior to the
Closing Date). Each Special Servicer shall from time to time (and, in any event,
-286-
upon request) provide each Master Servicer with such information in its
possession regarding the Specially Serviced Mortgage Loans and REO Properties
for which it is the applicable Special Servicer as may be necessary for such
Master Servicer to prepare each report and any supplemental information to be
provided by such Master Servicer to the Certificate Administrator.
(d) CMSA Operating Statement Analysis Report, CMSA Financial Files,
CMSA Comparative Financial Status Reports and CMSA NOI Adjustment Worksheets.
The applicable Master Servicer shall prepare and maintain a CMSA Operating
Statement Analysis Report, a CMSA Financial File and a CMSA NOI Adjustment
Worksheet with respect to each Mortgaged Property that secures a Mortgage Loan
that is not a Specially Serviced Mortgage Loan and the applicable Special
Servicer shall prepare and maintain a CMSA Operating Statement Analysis Report,
a CMSA Financial File and a CMSA NOI Adjustment Worksheet with respect to each
Specially Serviced Mortgage Loan and REO Property, in each case in accordance
with the provisions described below. As to quarterly (that is, not annual)
periods, within 105 calendar days after the end of each of the first three
calendar quarters (in each year) for the trailing or quarterly information
received, commencing with respect to the quarter ending on March 31, 2003, the
applicable Master Servicer (in the case of Mortgaged Properties that secure
Mortgage Loans that are not Specially Serviced Mortgage Loans) or the applicable
Special Servicer (in the case of Mortgaged Properties securing Specially
Serviced Mortgaged Loans and REO Properties) shall, based upon the operating
statements or rent rolls (if any) received and covering such calendar quarter
and not later than thirty (30) days prior to such 105th day, prepare (or, if
previously prepared, update) the CMSA Operating Statement Analysis Report, the
CMSA Comparative Financial Status Report and the CMSA Financial File for each
related Mortgaged Property and/or REO Property, using the non-normalized
quarterly and year-end operating statements and rent rolls received from the
related Borrower. As to annual (that is, not quarterly) periods, not later than
the second Business Day following the Determination Date occurring in July of
each year (beginning in 2003), the applicable Master Servicer (in the case of
Mortgaged Properties securing Mortgage Loans that are not Specially Serviced
Mortgage Loans) or the applicable Special Servicer (in the case of Mortgaged
Properties securing Specially Serviced Mortgage Loans and REO Properties) shall,
based upon the most recently available year-end financial statements and most
recently available rent rolls received not less than thirty (30) days prior to
such second Business Day, prepare (or, if previously prepared, update) the CMSA
Operating Statement Analysis Report, the CMSA Comparative Financial Status
Report, the CMSA
-287-
Financial File and a CMSA NOI Adjustment Worksheet for each related Mortgaged
Property and/or REO Property.
Each of the Master Servicers and the Special Servicers shall remit
electronically an image (labeled according to the ARCap Naming Convention for
Electronic File Delivery) of each CMSA Operating Statement Analysis Report, CMSA
Comparative Financial Status Report, CMSA Financial File and/or each CMSA NOI
Adjustment Worksheet prepared or updated by it (promptly following initial
preparation and each update thereof), together with the underlying operating
statements and rent rolls (in an electronic imaged format labeled according to
the ARCap Naming Convention for Electronic File Delivery) to the Controlling
Class Representative, the Certificate Administrator (upon request) and (in the
case of such a report prepared or updated by a Master Servicer) the applicable
Special Servicer for the related Mortgage Loan or REO Property and, in the case
of such a report related to the RREEF Textron Loan Pair, the RREEF Textron
Special Servicer. The Certificate Administrator shall, upon request from the
applicable Master Servicer or the applicable Special Servicer and, to the extent
such items have been delivered to the Certificate Administrator by a Master
Servicer or Special Servicer, deliver to any Certificateholder or, if the
Certificate Administrator has in accordance with Section 5.06(b) confirmed the
Ownership Interest in the Certificates held thereby, any Certificate Owner, a
copy of the CMSA Operating Statement Analysis, the CMSA Financial File and the
CMSA NOI Adjustment Worksheet (or update thereof) for any Mortgaged Property or
REO Property and, if requested, the related operating statement or rent rolls.
If, with respect to any Mortgage Loan (other than a Specially Serviced
Mortgage Loan), the applicable Special Servicer has any questions for the
related Borrower based upon the information delivered to the applicable Special
Servicer pursuant to Section 3.12(a) or this Section 4.02(d), the applicable
Master Servicer shall, in this regard and without otherwise changing or
modifying its duties hereunder, reasonably cooperate with the Special Servicer
in assisting the Special Servicer in such Special Servicer's efforts to contact
and solicit information from such Borrower.
(e) Reporting by the Special Servicers. Not later than 2:00 p.m. (New
York City time) on the first Business Day following each Determination Date, the
General Special Servicer shall prepare and deliver or cause to be delivered to
both of the Master Servicers and, upon request, the Controlling Class
Representative, and the RREEF Textron Special Servicer shall prepare and deliver
or cause to be delivered to the Master Servicer for the RREEF Textron Loan Pair
and, upon request, the Controlling Class Representative and
-288-
the RREEF Textron B-Note Holder, the following reports (or data files relating
to reports of a Master Servicer) with respect to those Specially Serviced
Mortgage Loans and REO Properties for which it is the applicable Special
Servicer, providing the required information as of such Determination Date: (i)
a CMSA Property File; and (ii) a CMSA Loan Periodic Update File (which, in each
case, if applicable, will identify each subject Mortgage Loan(s) by loan number
and property name). At or before 2:00 p.m. (New York City time) on the first
Business Day following each Determination Date, the General Special Servicer
shall prepare and deliver or cause to be delivered to both of the Master
Servicers and, upon request, the Controlling Class Representative, and the RREEF
Textron Special Servicer shall prepare and deliver or cause to be delivered to
the Master Servicer for the RREEF Textron Loan Pair and, upon request, the
Controlling Class Representative and the RREEF Textron B-Note Holder, the
following reports or the related data fields reflected in the reports reasonably
requested with respect to the Specially Serviced Mortgage Loans and REO
Properties for which it is the applicable Special Servicer, providing the
information in accordance with Section 4.02(g) as of such Determination Date:
(i) a CMSA Delinquent Loan Status Report; (ii) a CMSA Comparative Financial
Status Report; (iii) a CMSA Historical Liquidation Report; (iv) a CMSA
Historical Loan Modification Report; (v) a CMSA REO Status Report; and (vi) with
respect to any Collection Period that commences at any time following the date
that is nine (9) months following adoption of the form thereof by the CMSA, a
CMSA Special Servicer Defaulted Loan Report. In addition, each Special Servicer
shall from time to time provide the Master Servicers with such information in
the Special Servicer's possession regarding any Specially Serviced Mortgage Loan
or REO Property as may be requested by either Master Servicer and is reasonably
necessary for such Master Servicer to prepare each report and any supplemental
information required to be provided by such Master Servicer to the Certificate
Administrator or (in the case of the Master Servicer that is not the Servicer
Report Administrator) to the Servicer Report Administrator.
(f) Other Reporting by the Master Servicers. Not later than 12:00 noon
(New York City time) on the Business Day immediately preceding each Distribution
Date, the Servicer Report Administrator shall prepare (if and to the extent
necessary) and deliver or cause to be delivered to the Certificate Administrator
a CMSA Financial File and a CMSA Property File, combining information for the
Mortgage Loans and REO Properties for which it is the applicable Master Servicer
and the information delivered to the Servicer Report Administrator by the other
Master Servicer with respect to the Mortgage Loans and REO Properties for which
such other Master Servicer is the applicable Master Servicer, without
segregation according to the identities of the Master Servicers,
-289-
and in each case providing the most recent information with respect to the
subject Mortgage Loans and REO Properties as of the related Determination Date
(and which, in each case, if applicable, will identify each subject Mortgage
Loan by loan number and property name). Not later than 9:00 a.m. (New York City
time) on the third Business Day following each Determination Date, the Master
Servicer that is not the Servicer Report Administrator shall prepare (if and to
the extent necessary) and deliver or cause to be delivered to the Servicer
Report Administrator a CMSA Financial File and a CMSA Property File, combining
information for the Mortgage Loans and REO Properties for which such Master
Servicer is the applicable Master Servicer and in each case providing the most
recent information with respect to the subject Mortgage Loans and REO Properties
as of the related Determination Date (and which, in each case, if applicable,
will identify each subject Mortgage Loan by loan number and property name). Each
CMSA Financial File and CMSA Property File delivered by a Master Servicer as
described above shall be in a computer-readable medium downloadable by the
Certificate Administrator and (if applicable) the Servicer Report Administrator
(or, at the Certificate Administrator's or (if applicable) the Servicer Report
Administrator's written request, in a form reasonably acceptable to the
recipient, including on a loan-by-loan basis). Notwithstanding the foregoing
provisions of this subsection (f), neither Master Servicer shall be required to
prepare and/or deliver any of such files or reports with respect to the
Determination Date in November 2002 or any CMSA Property File with respect to
any Determination Date other than with respect to the Determination Date in
December 2002.
Not later than 12:00 noon (New York City time) on the Business Day
immediately preceding each Distribution Date, the Servicer Report Administrator
shall deliver or cause to be delivered, with respect to those Mortgage Loans and
REO Properties as to which it is the applicable Master Servicer, shall prepare
(if any to the extent necessary) and deliver or cause to be delivered to the
Certificate Administrator, in a computer-readable medium downloadable by the
Certificate Administrator (or, at the Certificate Administrator's written
request, in a form reasonably acceptable to the recipient, including on a
loan-by-loan basis), a CMSA Delinquent Loan Status Report, a CMSA Historical
Loan Modification Report, a CMSA Historical Liquidation Report, a CMSA REO
Status Report, a CMSA Operating Statement Analysis Report, a CMSA Comparative
Financial Status Report, a CMSA Servicer Watch List, a CMSA NOI Adjustment
Worksheet and, with respect to any Collection Period that commences at any time
following the date that is nine (9) months following adoption of the form
thereof by the CMSA, a CMSA Special Servicer Defaulted Loan Report, in each
case combining information for the Mortgage Loans and REO Properties for which
it is the applicable Master Servicer and the information
-290-
delivered to the Servicer Report Administrator by the other Master Servicer with
respect to the Mortgage Loans and REO Properties for which such other Master
Servicer is the applicable Master Servicer but segregated according to the
identities of the Master Servicers, in each case providing the most recent
information with respect to the subject Mortgage Loans and REO Properties as of
the related Determination Date (and which, in each case, if applicable, will
identify each subject Mortgage Loan by loan number and property name). On the
third Business Day following each Determination Date (which date is the Business
Day immediately preceding the related Distribution Date), the Master Servicer
that is not the Servicer Report Administrator, shall prepare (if any to the
extent necessary) and deliver or cause to be delivered to the Servicer Report
Administrator, in a computer-readable medium downloadable by the Servicer Report
Administrator (or, at the Servicer Report Administrator's written request, in a
form reasonably acceptable to the recipient, including on a loan-by-loan basis),
a CMSA Delinquent Loan Status Report, a CMSA Historical Loan Modification
Report, a CMSA Historical Liquidation Report, a CMSA REO Status Report, a CMSA
Operating Statement Analysis Report, a CMSA Comparative Financial Status Report,
a CMSA Servicer Watch List, a CMSA NOI Adjustment Worksheet and, with respect to
any Collection Period that commences at any time following the date that is nine
(9) months following adoption of the form thereof by the CMSA, a CMSA Special
Servicer Defaulted Loan Report, in each case combining information for the
Mortgage Loans and REO Properties for which it is the applicable Master
Servicer, in each case providing the most recent information with respect to the
subject Mortgage Loans and REO Properties as of the related Determination Date
(and which, in each case, if applicable, will identify each subject Mortgage
Loan by loan number and property name). Notwithstanding the foregoing, neither
Master Servicer shall be required to prepare and deliver any of such files or
reports with respect to the initial Determination Date following the Closing
Date.
Not later than the first Business Day following each Distribution Date
(which day is the second Business Day following the related Master Servicer
Remittance Date), the Servicer Report Administrator shall prepare (if and to the
extent necessary) and deliver or cause to be delivered to the Certificate
Administrator and the Controlling Class Representative an ARCap P&I Advance as
of Remittance Date Report and an ARCap Interest on Advance Reconciliation
Report, each combining information for the Mortgage Loans for which it is the
applicable Master Servicer and the information delivered to the Servicer Report
Administrator by the other Master Servicer with respect to the Mortgage Loans
for which such other Master Servicer is the applicable Master Servicer, without
segregation according to the identities of the Master Servicers, and in each
case providing the most recent information with respect to the subject Mortgage
Loans
-291-
as of the Master Servicer Remittance Date related to such Distribution Date. Not
later than each Distribution Date (which day is the first Business Day following
the related Master Servicer Remittance Date), the Master Servicer that is not
the Servicer Report Administrator shall prepare (if and to the extent necessary)
and deliver or cause to be delivered to the Servicer Report Administrator an
ARCap P&I Advance as of Remittance Date Report and an ARCap Interest on Advance
Reconciliation Report, in each case providing the most recent information with
respect to the subject Mortgage Loans as of the Master Servicer Remittance Date
related to such Distribution Date.
Within two Business Days following the end of each calendar month, the
Servicer Report Administrator shall prepare (if and to the extent necessary) and
deliver or cause to be delivered to the Certificate Administrator and the
Controlling Class Representative an ARCap Mortgage Loans Delinquent Report,
combining information for the Mortgage Loans for which it is the applicable
Master Servicer and the information delivered to the Servicer Report
Administrator by the other Master Servicer with respect to the Mortgage Loans
for which such other Master Servicer is the applicable Master Servicer, without
segregation according to the identities of the Master Servicers, and in each
case providing the most recent information with respect to the subject Mortgage
Loans (which shall be the Mortgage Loans for which a P&I Advance was made on the
preceding Master Servicer Remittance Date) as of the end of such calendar month.
Within one Business Day following the end of each calendar month, the Master
Servicer that is not the Servicer Report Administrator shall prepare (if and to
the extent necessary) and deliver or cause to be delivered to the Servicer
Report Administrator an ARCap Mortgage Loans Delinquent Report for the Mortgage
Loans for which such Master Servicer is the applicable Master Servicer and in
each case providing the most recent information with respect to the subject
Mortgage Loans (which shall be the Mortgage Loans for which a P&I Advance was
made on the preceding Master Servicer Remittance Date) as of the end of such
calendar month.
Each Master Servicer may, but is not required to, make any of the
reports or files comprising the CMSA Investor Reporting Package (and any ARCap
P&I Advance as of Remittance Date Report, any ARCap Interest on Advances
Reconciliation Report and any ARCap Mortgage Loans Delinquent Report) prepared
by it with respect to the Mortgage Loans and REO Properties as to which it is
the applicable Master Servicer, available each month on such Master Servicer's
internet website only with the use of a password, in which case such Master
Servicer shall provide such password to (i) the other parties to this Agreement,
who by their acceptance of such password shall be deemed to have agreed not to
disclose such password to any other Person, (ii) the Rating Agencies
-292-
and the Controlling Class Representative, and (iii) each Certificateholder and
Certificate Owner who requests such password, provided that any such
Certificateholder or Certificate Owner, as the case may be, has delivered a
certification substantially in the form of Exhibit J-1 to the Certificate
Administrator (with a copy to such Master Servicer). In connection with
providing access to its internet website, a Master Servicer may require
registration and the acceptance of a disclaimer and otherwise (subject to the
preceding sentence) adopt reasonable rules and procedures, which may include, to
the extent a Master Servicer deems necessary or appropriate, conditioning access
on execution of an agreement governing the availability, use and disclosure of
such information, and which may provide indemnification to such Master Servicer
for any liability or damage that may arise therefrom.
If either Master Servicer determines, in its reasonable judgment, that
information regarding the Mortgage Loans and REO Properties for which it is the
applicable Master Servicer (in addition to the information otherwise required to
be contained in the CMSA Investor Reporting Package) should be disclosed to
Certificateholders and Certificate Owners, then (i) if the nature of the
information is comparable to the information contemplated by the forms of
Restricted Reports or the applicable Master Servicer otherwise determines that
public availability of such information is not appropriate under the
circumstances, (A) the applicable Master Servicer shall be entitled to so notify
the Certificate Administrator, set forth such information in an additional
report (in a format reasonably acceptable to the Certificate Administrator),
deliver such report to the Certificate Administrator simultaneously with the
delivery of its reports described in the first paragraph of this Section 4.02(f)
and provide to the Certificate Administrator a statement (for inclusion in the
Certificate Administrator Report for the related Distribution Date or for direct
posting to the Certificate Administrator's website, as the case may be)
generally describing the type of information provided and to the effect that
such information will be made available by the same means and at the same time
that the Restricted Reports are made available with respect to such Distribution
Date; and (B) if the information described in the immediately preceding clause
(A) is timely received, the Certificate Administrator shall include such
statement in the Certificate Administrator Report for such Distribution Date (or
directly post it to the Certificate Administrator's internet website) and make
such additional report available by the same means and at the same time that the
Restricted Reports are made available with respect to such Distribution Date;
and (ii) if the nature of the information is not as described by clause (i)
above, the applicable Master Servicer shall be entitled to so notify the
Certificate Administrator, set forth such information in an additional report
(in a format reasonably acceptable to the Certificate Administrator) and deliver
such
-293-
report to the Certificate Administrator simultaneously with the delivery of its
reports described in the first paragraph of this Section 4.02(f); and (B) if the
information described in the immediately preceding clause (A) is timely
received, the Certificate Administrator shall include such additional report in
or as an attachment to the Certificate Administrator Report for such
Distribution Date (or directly post it to the Certificate Administrator's
internet website).
(g) Certain General Provisions Regarding Reporting. Each Special
Servicer shall deliver to the applicable Master Servicer(s) the reports set
forth in Section 3.12(b) and Section 4.02(e), the Master Servicer that is not
the Servicer Report Administrator shall deliver to the Servicer Report
Administrator the reports set forth in Section 4.02(c) and Section 4.02(f) and
the applicable Master Servicer(s) shall deliver to the Certificate Administrator
the reports set forth in Section 4.02(c) and Section 4.02(f), in an electronic
format reasonably acceptable to the Special Servicers, the Master Servicers and
the Certificate Administrator. Each Master Servicer may, absent manifest error,
conclusively rely on the reports to be provided by a Special Servicer pursuant
to Section 3.12(b) and Section 4.02(e). The Servicer Report Administrator may,
absent manifest error, conclusively rely on the reports to be provided by the
other Master Servicer pursuant to Section 4.02(c) and Section 4.20(f). The
Certificate Administrator may, absent manifest error, conclusively rely on the
reports to be provided by a Master Servicer pursuant to Section 4.02(c) and
Section 4.20(f). To the extent that any report to be prepared and provided to
the Certificate Administrator, the Controlling Class Representative and/or (if
applicable) the Servicer Report Administrator by a Master Servicer pursuant to
Section 4.02(c) and Section 4.20(f) is dependent on information from a Special
Servicer or the other Master Servicer, and such Special Servicer or such other
Master Servicer (as the case may be) has not timely provided such information to
such Master Servicer, such Master Servicer shall on a timely basis provide to
the Certificate Administrator, the Controlling Class Representative and/or (if
applicable) the Servicer Report Administrator, as applicable, as complete a
report as the information provided by such Special Servicer or such other Master
Servicer (as the case may be) permits and shall promptly update and provide to
the Certificate Administrator, the Controlling Class Representative and/or (if
applicable) the Servicer Report Administrator, as applicable, a complete report
when such Special Servicer or such other Master Servicer (as the case may be)
provides such Master Servicer with the requisite missing information; and such
Master Servicer shall not be in breach hereunder for so providing an incomplete
report under Section 4.02(c) or Section 4.02(f) under the foregoing
circumstances. Furthermore, if any report to be provided to the Certificate
Administrator, the Controlling Class Representative and/or (if applicable) the
Servicer Report
-294-
Administrator by a Master Servicer pursuant to Section 4.02(c) or Section
4.02(f) was to be prepared by a Special Servicer or the other Master Servicer
and delivered to such Master Servicer, such Master Servicer shall not be in
breach by reason of any delay in its delivery of such report to the Certificate
Administrator, the Controlling Class Representative and/or (if applicable) the
Servicer Report Administrator, as applicable, by reason of a delay on the part
of such Special Servicer or such other Master Servicer (as the case may be) to
deliver such report to such Master Servicer; and such Master Servicer shall
deliver as promptly as reasonably practicable to the Certificate Administrator,
the Controlling Class Representative and/or the Servicer Report Administrator,
as applicable, any such report that it receives from such Special Servicer or
such other Master Servicer (as the case may be) after the requisite delivery
date.
(h) Order of Presentations. Each report hereunder that comprises part
of the CMSA Investor Reporting Package shall, to the extent such report presents
information regarding the individual Mortgage Loans and Mortgaged Properties,
present such information in ascending order of the loan identification number
set forth in the Prospectus.
(i) Certain Means of Delivery. If a Master Servicer or Special Servicer
is required to deliver any statement, report or information under any provision
of this Agreement, such Master Servicer or such Special Servicer, as the case
may be, may satisfy such obligation by (x) physically delivering a paper copy of
such statement, report or information, (y) delivering such statement, report or
information in a commonly used electronic format or (z) making such statement,
report or information available on a Master Servicer's internet website or the
Certificate Administrator's internet website and notifying the Person(s)
entitled to such statement, report or information of such availability.
Notwithstanding the foregoing, the Certificate Administrator may request
delivery in paper format of any statement, report or information required to be
delivered to the Certificate Administrator and clause (z) shall not apply to the
delivery of any information required to be delivered to the Certificate
Administrator unless the Certificate Administrator consents to such delivery.
(j) Notwithstanding any other provision of this Agreement to the
contrary, the parties hereto shall cause to be delivered to the Controlling
Class Representative the reports and information set forth on Exhibit D-7 hereto
in the formats and at the times set forth therein. The intention of this Section
4.02 is (among other things) to implement the reporting contemplated by such
Exhibit D-7. If the Controlling Class Representative and the General Special
Servicer are Affiliates of one another, a report delivered to one of them by a
Master Servicer need not also be delivered to the other of them.
-295-
(k) During any period that reports are required to be filed with the
Commission with respect to the Trust pursuant to Section 15(d) of the Exchange
Act, access to information regarding the Trust on a Master Servicer's Internet
Website will be conditioned to the party attempting to gain such access
electronically agreeing to keep confidential any such information that has not
been filed with the Commission.
(l) No provisions of this Agreement shall be deemed to require a Master
Servicer or Special Servicer to confirm or make any representation regarding the
accuracy of (or to be liable or responsible for) any other Person's information
or report.
(m) Each of the Master Servicers shall produce the reports required of
it under this Agreement (including those set forth on Exhibit D-7) but shall not
be required to (but may upon request) produce any ad hoc non-standard written
reports. If the Master Servicer elects to provide any non-standard reports, it
may require the Person requesting such report to pay a reasonable fee to cover
the costs of the preparation thereof.
(n) [Reserved.]
(o) Each of the parties hereto shall cooperate with the other to make
information available that may be necessary to satisfy the requirements of
subsection (d)(4)(i) of Rule 144A under the Securities Act.
(p) The applicable Master Servicer shall deliver or cause to be
delivered to the RREEF Textron B-Note Holder, the Certificate Administrator
(upon request), the applicable Special Servicer and the Controlling Class
Representative the following materials, in writing or by electronic means
reasonably acceptable to the RREEF Textron B-Note Holder and such Master
-296-
Servicer (and such reports may include any reasonable disclaimers with respect
to information provided by third parties or with respect to assumptions required
to be made in the preparation of such reports as such Master Servicer deems
appropriate) within 5 days after each Due Date for the RREEF Textron Mortgage
Loan Pair:
(i) the amount of the distributions made on the related RREEF Textron
Pooled Mortgage Loan and the RREEF Textron B-Note Mortgage Loan for such
period allocable to interest (separately identifying Default Interest) and
the amount thereof allocable to principal;
(ii) if the amount of the distributions to the related RREEF Textron
B-Note Mortgage Loan was less than the full amount that would have been
distributable to such RREEF Textron B-Note Mortgage Loan if there had been
sufficient funds, the amount of the shortfall, stating separately the
amounts allocable to interest and principal;
(iii) the outstanding principal balance of the RREEF Textron B-Note
Mortgage Loan immediately following payment for such period;
(iv) the aggregate amount of unscheduled payments of principal
allocable to the RREEF Textron B-Note Mortgage Loan (and the source
thereof) made during the related period;
(v) identification of any Event of Default under this Agreement, as of
the date of such report;
(vi) the aggregate outstanding Servicing Advances with respect to the
RREEF Textron Mortgage Loan Pair and interest thereon as of the end of, and
all interest paid on Servicing Advances with respect to the RREEF Textron
Mortgage Loan Pair during, the prior calendar month;
(vii) the amount of the servicing compensation paid to the applicable
Master Servicer and the RREEF Textron Special Servicer with respect to the
RREEF Textron Mortgage Loan Pair, including the Master Servicing Fee, the
Special Servicing Fee, any Work-out Fee, any Liquidation Fee and any
charges to the related Borrower retained by the Master Servicer or the
RREEF Textron Special Servicer as allocated among the RREEF Textron Pooled
Mortgage Loan and the RREEF Textron B-Note Mortgage Loan;
-297-
(viii) information relating to the status of the RREEF Textron Mortgage
Loan Pair if such Mortgage Loans are Specially Serviced Mortgage Loans
including, if applicable, the status of the bankruptcy of the related
Borrower (along with copies of any related bankruptcy filings);
(ix) the amount of any shortfalls in distributions to the RREEF Textron
Pooled Mortgage Loan for such period and the amount of any outstanding
amounts due to the RREEF Textron Pooled Mortgage Loan for prior periods;
and
(x) information contained in the CMSA Investor Reporting Package
relating solely to the RREEF Textron Pooled Mortgage Loan.
SECTION 4.03. P&I Advances.
(a) On or before 1:00 p.m. (New York City time) on each P&I Advance
Date, each Master Servicer shall, subject to Section 4.03(c), either (i) remit
from its own funds to the Certificate Administrator for deposit into the
Distribution Account an amount equal to the aggregate amount of P&I Advances, if
any, to be made by such Master Servicer in respect of the related Distribution
Date, (ii) apply amounts held in such Master Servicer's Collection Account for
future distribution to Certificateholders in subsequent months in discharge of
any such obligation to make such P&I Advances, or (iii) make such P&I Advances
in the form of any combination of (i) and (ii) aggregating the total amount of
P&I Advances to be made by such Master Servicer. Any amounts held in either
Master Servicer's Collection Account for future distribution and so used to make
P&I Advances shall be appropriately reflected in such Master Servicer's records
and replaced by such Master Servicer by deposit in its Collection Account prior
to the next succeeding Master Servicer Remittance Date (to the extent not
previously replaced through the deposit of Late Collections of the delinquent
principal and interest in respect of which such P&I Advances were made). If, as
of 3:30 p.m. (New York City time) on any P&I Advance Date, either Master
Servicer shall not have made any P&I Advance required to be made by it on such
date pursuant to this Section 4.03(a) (and shall not have delivered to the
Certificate Administrator and the Trustee the Officer's Certificate and other
documentation related to a determination of nonrecoverability of a P&I Advance
pursuant to Section 4.03(c)) or shall not have remitted any portion of the
Master Servicer Remittance Amount required to be remitted by such Master
Servicer on such date, then the Certificate Administrator shall provide notice
of such failure to such Master Servicer by facsimile transmission as soon as
possible, but in any event before 4:30 p.m. (New York City time) on such P&I
Advance Date. If after such notice the Certificate Administrator does not
receive the full amount of such P&I Advances
-298-
by 9:00 a.m. (New York City time) on the related Distribution Date, then the
Certificate Administrator shall promptly notify the Trustee and the Fiscal Agent
(but in any event before 10:00 a.m. (New York City time) and the Trustee (or the
Fiscal Agent on its behalf) shall (not later than 12:00 noon, New York City
time, on the related Distribution Date) make the portion of such P&I Advances
that was required to be, but was not, made or remitted, as the case may be, by
such Master Servicer with respect to the related Distribution Date.
(b) The aggregate amount of P&I Advances to be made by each Master
Servicer in respect of any Distribution Date, subject to Section 4.03(c) below,
shall equal the aggregate of all Monthly Payments (other than Balloon Payments)
and any Assumed Monthly Payments, in each case net of any related Master
Servicing Fees, due or deemed due, as the case may be, in respect of the
Mortgage Loans as to which such Master Servicer is the applicable Master
Servicer and any successor REO Mortgage Loans on their respective Due Dates
during the related Collection Period, in each case to the extent such amount was
not paid by or on behalf of the related Borrower or otherwise collected by or on
behalf of the Trust as of the close of business on the related Determination
Date; provided that, if an Appraisal Reduction Amount exists with respect to any
Required Appraisal Loan, then the interest portion of any P&I Advance required
to be made in respect of such Required Appraisal Loan for the related
Distribution Date shall be reduced (it being herein acknowledged that there
shall be no reduction in the principal portion of such P&I Advance) to equal the
product of (i) the amount of the interest portion of such P&I Advance that would
otherwise be required to be made in respect of such Required Appraisal Loan for
such Distribution Date without regard to this proviso, multiplied by (ii) a
fraction, expressed as a percentage, the numerator of which shall equal the
Stated Principal Balance of such Required Appraisal Loan immediately prior to
such Distribution Date, net of the related Appraisal Reduction Amount, and the
denominator of which shall equal the Stated Principal Balance of such Required
Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. The determination by a Master Servicer
(or, if applicable, the Trustee or the Fiscal Agent) that it has made a
Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would
constitute a Nonrecoverable P&I Advance, shall be made by such Person in its
sole discretion exercised in good faith and shall be evidenced by an Officer's
Certificate delivered to the Depositor, the applicable Special Servicer, the
Certificate Administrator, the Controlling Class Representative and, if made by
a Master Servicer, the Trustee (on or before the related P&I Advance Date in the
-299-
case of a proposed P&I Advance), setting forth the basis for such determination,
accompanied by a copy of an Appraisal of the related Mortgaged Property or REO
Property performed within the 12 months preceding such determination by a
Qualified Appraiser, and further accompanied by any other information, including
engineers' reports, environmental surveys or similar reports, that the Person
making such determination may have obtained and that support such determination.
The Trustee and the Fiscal Agent shall be entitled to conclusively rely on any
nonrecoverability determination made by a Master Servicer with respect to a
particular P&I Advance. The applicable Special Servicer shall promptly furnish
any party required to make P&I Advances hereunder with any information in its
possession regarding the Specially Serviced Mortgage Loans and REO Properties as
such party required to make P&I Advances may reasonably request.
(d) The Master Servicers, the Trustee and the Fiscal Agent shall each
be entitled to receive interest at the Reimbursement Rate in effect from time to
time, accrued on the amount of each P&I Advance made thereby (with its own
funds), to the extent that such P&I Advance relates to a Past Grace Period Loan
when made, or remains outstanding when such Mortgage Loan becomes a Past Grace
Period Loan, in which case such interest shall begin to accrue when such
Mortgage Loan becomes a Past Grace Period Loan, for so long as such P&I Advance
is outstanding (or, in the case of Advance Interest payable to the Master
Servicer, if earlier, until the Late Collection of the delinquent principal
and/or interest in respect of which such P&I Advance was made has been received
by the Master Servicer). Such interest with respect to any P&I Advance shall be
payable: (i) first, in accordance with Sections 3.05 and 3.26, out of any
Default Charges subsequently collected on the particular Mortgage Loan or REO
Mortgage Loan as to which such P&I Advance relates; and (ii) then, after such
P&I Advance is reimbursed, but only if and to the extent that such Default
Charges are insufficient to cover such Advance Interest, out of general
collections on the Mortgage Loans and REO Properties on deposit in the
applicable Master Servicer's Collection Account. The applicable Master Servicer
shall reimburse itself, the Trustee or the Fiscal Agent, as applicable, for any
outstanding P&I Advance made thereby with respect to any Mortgage Loan or REO
Mortgage Loan as soon as practicable after funds available for such purpose are
deposited in such Master Servicer's Collection Account, and in no event shall
interest accrue in accordance with this Section 4.03(d) on any P&I Advance as to
which the corresponding Late Collection was received by or on behalf of the
Trust as of the related P&I Advance Date.
(e) With regard to such P&I Advances, the applicable Master Servicer,
the Trustee or the Fiscal Agent shall account for that part of the P&I
-300-
Advances which is attributable to Past Grace Period Loans, and that part of the
P&I Advances which is attributable to Within Grace Period Loans.
(f) Notwithstanding anything to the contrary, no P&I Advances shall be
made with respect to the RREEF Textron B-Note Mortgage Loan or any successor REO
Mortgage Loan.
SECTION 4.04. Allocation of Realized Losses and Additional Trust
Fund Expenses
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01, the
Certificate Administrator shall determine the amount, if any, by which (i) the
then aggregate of the Class Principal Balances of all the Classes of Principal
Balance Certificates, exceeds (ii) the aggregate Stated Principal Balance of the
Mortgage Pool that will be outstanding immediately following such Distribution
Date. If such excess does exist, then the Class Principal Balances of the Class
P, Class N, Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class
E, Class D, Class C and Class B Certificates shall be reduced sequentially, in
that order, in each case, until such excess or the related Class Principal
Balance is reduced to zero (whichever occurs first). If, after the foregoing
reductions, the amount described in clause (i) of the second preceding sentence
still exceeds the amount described in clause (ii) of such sentence, then the
respective Class Principal Balances of all the outstanding Classes of the Class
A Certificates shall be reduced on a pro rata basis in accordance with the
relative sizes of such Class Principal Balances, until any such remaining excess
is reduced to zero. All such reductions in the Class Principal Balances of the
respective Classes of the Principal Balance Certificates shall constitute
allocations of Realized Losses and Additional Trust Fund Expenses.
(b) On each Distribution Date, following the deemed distributions to be
made in respect of the REMIC II Regular Interests on such date pursuant to
Section 4.01(i), the Certificate Administrator shall determine the amount, if
any, by which (i) the then aggregate Uncertificated Principal Balance of the
REMIC II Regular Interests, exceeds (ii) the aggregate Stated Principal Balance
of the Mortgage Pool that will be outstanding immediately following such
Distribution Date. If such excess does exist, then the Uncertificated Principal
Balances of REMIC II Regular Interest P, REMIC II Regular Interest N, REMIC II
Regular Interest M, REMIC II Regular Interest L, REMIC II Regular Interest K,
REMIC II Regular Interest J-1, REMIC II Regular Interest J-2, REMIC II Regular
Interest H-1, REMIC II Regular Interest H-2, REMIC II Regular Interest G-1,
REMIC II Regular Interest G-2, REMIC II Regular Interest
-301-
F-1, REMIC II Regular Interest F-2, REMIC II Regular Interest E-1, REMIC II
Regular Interest E-2, REMIC II Regular Interest D-1, REMIC II Regular Interest
D-2, REMIC II Regular Interest C and REMIC II Regular Interest B, shall be
reduced sequentially, in that order, in each case, until such excess or the
related Uncertificated Principal Balance is reduced to zero (whichever occurs
first). If, after the foregoing reductions, the amount described in clause (i)
of the second preceding sentence still exceeds the amount described in clause
(ii) of such sentence, then the respective Uncertificated Principal Balances of
(A) the REMIC II Regular Interests that are Corresponding REMIC II Regular
Interests with respect to the Class A-1 Certificates and (B) the REMIC II
Regular Interests that are Corresponding REMIC II Regular Interests with respect
to the Class A-2 Certificates, as a collective matter, in the order described in
the next sentence, shall be reduced on a pro rata basis in accordance with the
relative sizes of such Uncertificated Principal Balances, until any such
remaining excess is reduced to zero. Any reductions in the Uncertificated
Principal Balances of the REMIC II Regular Interests that are Corresponding
REMIC II Regular Interests with respect to a particular Class of Class A
Certificates pursuant to the preceding sentence shall be made to the
Uncertificated Principal Balances of such REMIC II Regular Interests
sequentially in ascending order of that portion of their alphanumeric
designations that follows the portion thereof that is the same as the
alphanumeric designation of such Class of Class A Certificates, in each case
until such Uncertificated Principal Balance is reduced to zero. All such
reductions in the Uncertificated Principal Balances of the respective REMIC II
Regular Interests shall be deemed to constitute allocations of Realized Losses
and Additional Trust Fund Expenses.
(c) On each Distribution Date, following the deemed distributions to be
made in respect of the REMIC I Regular Interests pursuant to Section 4.01(j),
the Uncertified Principal Balance of each REMIC I Regular Interest (after taking
account of such deemed distributions) shall be reduced to equal the Stated
Principal Balance of the related Mortgage Loan or REO Mortgage Loan, as the case
may be, that will be outstanding immediately following such Distribution Date.
Any such reductions in the Uncertificated Principal Balances of the respective
REMIC I Regular Interests shall be deemed to constitute allocations of Realized
Losses and Additional Trust Fund Expenses.
SECTION 4.05. Calculations.
Provided that the Certificate Administrator receives the necessary
information from the Master Servicers and/or the Special Servicers, the
Certificate Administrator shall be responsible for performing all calculations
necessary in connection with the actual and deemed distributions to be made
-302-
pursuant to Section 4.01, the preparation of the Certificate Administrator
Reports pursuant to Section 4.02(a) and the actual and deemed allocations of
Realized Losses and Additional Trust Fund Expenses to be made pursuant to
Section 4.04. The Certificate Administrator shall calculate the Available
Distribution Amount for each Distribution Date and shall allocate such amount
among Certificateholders in accordance with this Agreement. Absent actual
knowledge of an error therein, the Certificate Administrator shall have no
obligation to recompute, recalculate or otherwise verify any information
provided to it by a Master Servicer. The calculations by the Certificate
Administrator contemplated by this Section 4.05 shall, in the absence of
manifest error, be presumptively deemed to be correct for all purposes
hereunder.
-303-
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms
attached hereto as Exhibits A-1 through A-3; provided that any of the
Certificates may be issued with appropriate insertions, omissions, substitutions
and variations, and may have imprinted or otherwise reproduced thereon such
legend or legends, not inconsistent with the provisions of this Agreement, as
may be required to comply with any law or with rules or regulations pursuant
thereto, or with the rules of any securities market in which the Certificates
are admitted to trading, or to conform to general usage. The Certificates will
be issuable in registered form only; provided, however, that in accordance with
Section 5.03, beneficial ownership interests in the Class A-1, Class A-2, Class
B, Class C, 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 and Class P Certificates shall
initially be held and transferred through the book-entry facilities of the
Depository. The Regular Interest Certificates will be issuable only in
denominations corresponding to initial Certificate Principal Balances or initial
Certificate Notional Amounts, as the case may be, as of the Closing Date of
$10,000 in the case of the Class A-1, Class A-2, Class B and Class C
Certificates, $250,000 in the case of the Interest Only Certificates, and
$250,000 in the case of the remaining Regular Interest Certificates, and in each
such case in integral multiples of $1 in excess thereof. The Class R and Class V
Certificates will be issuable in denominations representing Percentage Interests
in the related Class of not less than 10%.
(b) The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by the Certificate Registrar hereunder by an authorized
signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers or signatories of the
Certificate Registrar shall be entitled to all benefits under this Agreement,
subject to the following sentence, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, however, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein executed by the Authenticating Agent by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive evidence,
and the only evidence, that
-304-
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
SECTION 5.02. Registration of Transfer and Exchange of
Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Certificate Administrator is hereby initially appointed (and hereby agrees
to act in accordance with the terms hereof) as Certificate Registrar for the
purpose of registering Certificates and transfers and exchanges of Certificates
as herein provided. The Certificate Registrar may appoint, by a written
instrument delivered to the Trustee, the Depositor, the Master Servicers, the
Special Servicers and (if the Certificate Administrator is not the Certificate
Registrar) the Certificate Administrator, any other bank or trust company to act
as Certificate Registrar under such conditions as the predecessor Certificate
Registrar may prescribe, provided that the predecessor Certificate Registrar
shall not be relieved of any of its duties or responsibilities hereunder by
reason of such appointment. If the Certificate Administrator resigns or is
removed in accordance with the terms hereof, the successor certificate
administrator shall immediately succeed to its duties as Certificate Registrar.
The Depositor, the Trustee, the Certificate Administrator (if it is not the
Certificate Registrar), each Master Servicer and each Special Servicer shall
have the right to inspect the Certificate Register or to obtain a copy thereof
at all reasonable times, and to rely conclusively upon a certificate of the
Certificate Registrar as to the information set forth in the Certificate
Register.
If three or more Holders make written request to the Certificate
Registrar, and such request states that such Holders desire to communicate with
other Holders with respect to their rights under this Agreement or under the
Certificates and is accompanied by a copy of the communication which such
Holders propose to transmit, then the Certificate Registrar shall, within 30
days after the receipt of such request, afford (or cause any other Certificate
Registrar to afford) the requesting Holders access during normal business hours
to the most recent list of Certificateholders held by the Certificate Registrar.
(b) No Transfer of any Non-Registered Certificate or interest therein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities
-305-
laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of any Definitive Non-Registered Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance of the Non-Registered Certificates or a Transfer of
such Certificate by the Depositor, the Underwriter or any of their respective
Affiliates or, in the case of a Global Certificate for any Class of Book-Entry
Non-Registered Certificates, a Transfer thereof to a successor Depository or to
the applicable Certificate Owner(s) in accordance with Section 5.03), then the
Certificate Registrar shall refuse to register such Transfer unless it receives
(and, upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such Transfer substantially in the form
attached hereto as Exhibit E-1 and a certificate from such Certificateholder's
prospective Transferee substantially in the form attached hereto either as
Exhibit E-2A or as Exhibit E-2B; or (ii) an Opinion of Counsel satisfactory to
the Trustee to the effect that the prospective Transferee is an Institutional
Accredited Investor, an Individual Accredited Investor or a Qualified
Institutional Buyer and such Transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, either Master Servicer, either Special Servicer, the
Tax Administrator, the Certificate Administrator, the Trustee, the Fiscal Agent
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such Transfer from
the Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.
If a Transfer of any interest in the Rule 144A Global Certificate for
any Class of Book-Entry Non-Registered Certificates is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Book-Entry Non-Registered Certificates or a Transfer of any
interest therein by the Depositor, the Underwriter or any of their respective
Affiliates), then the Certificate Owner desiring to effect such Transfer shall
be required to obtain either (i) a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached hereto as Exhibit
E-2C, or (ii) an Opinion of Counsel to the effect that the prospective
Transferee is a Qualified Institutional Buyer and such Transfer may be made
without registration under the Securities Act. Except as provided in the
following two paragraphs, no interest in the Rule 144A Global Certificate for
any Class of Book-Entry Non-Registered Certificates shall be transferred to any
Person who takes delivery other than in the form of an interest in such Rule
144A Global Certificate. If any Transferee of an interest in the Rule 144A
Global Certificate for any Class of
-306-
Book-Entry Non-Registered Certificates does not, in connection with the subject
Transfer, deliver to the Transferor the Opinion of Counsel or one of the
certifications described in the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in Exhibit E-2C hereto are, with respect to the subject Transfer, true and
correct.
Notwithstanding the preceding paragraph, any interest in the Rule 144A
Global Certificate for a Class of Book-Entry Non-Registered Certificates may be
transferred (without delivery of any certificate or Opinion of Counsel described
in clauses (i) and (ii) of the first sentence of the preceding paragraph) by the
Depositor or any Affiliate of the Depositor to any Person who takes delivery in
the form of a beneficial interest in the Regulation S Global Certificate for
such Class of Certificates upon delivery to the Certificate Registrar of (x) a
certificate to the effect that the Certificate Owner desiring to effect such
Transfer is the Depositor or an Affiliate of the Depositor and (y) such written
orders and instructions as are required under the applicable procedures of the
Depository, Clearstream and Euroclear to direct the Certificate Administrator to
debit the account of a Depository Participant by a denomination of interests in
such Rule 144A Global Certificate, and credit the account of a Depository
Participant by a denomination of interests in such Regulation S Global
Certificate, that is equal to the denomination of beneficial interests in the
Class X-1, Class X-2, Class D, Class E, Class F or Class G Certificates, as
applicable, to be transferred. Upon delivery to the Certificate Registrar of
such certification and orders and instructions, the Certificate Administrator,
subject to and in accordance with the applicable procedures of the Depository,
shall reduce the denomination of the Rule 144A Global Certificate in respect of
the Class X-1, Class X-2, Class D, Class E, Class F or Class G Certificates, as
applicable, and increase the denomination of the Regulation S Global Certificate
for such Class, by the denomination of the beneficial interest in such Class
specified in such orders and instructions.
Also notwithstanding the foregoing, any interest in a Rule 144A Global
Certificate with respect to any Class of Book-Entry Non-Registered Certificates
may be transferred by any Certificate Owner holding such interest to any
Institutional Accredited Investor (other than a Qualified Institutional Buyer)
or Individual Accredited Investor that takes delivery in the form of a
Definitive Certificate of the same Class as such Rule 144A Global Certificate
upon delivery to the Certificate Registrar and the Certificate Administrator of
(i) such certifications and/or opinions as are contemplated by the second
paragraph of this Section 5.02(b) and (ii) such written orders and instructions
as are required under the applicable procedures of the Depository to direct the
Certificate Administrator to debit the account of a Depository Participant by
the denomination of the
-307-
transferred interests in such Rule 144A Global Certificate. Upon delivery to the
Certificate Registrar of the certifications and/or opinions contemplated by the
second paragraph of this Section 5.02(b), the Certificate Administrator, subject
to and in accordance with the applicable procedures of the Depository, shall
reduce the denomination of the subject Rule 144A Global Certificate by the
denomination of the transferred interests in such Rule 144A Global Certificate,
and shall cause a Definitive Certificate of the same Class as such Rule 144A
Global Certificate, and in a denomination equal to the reduction in the
denomination of such Rule 144A Global Certificate, to be executed, authenticated
and delivered in accordance with this Agreement to the applicable Transferee.
Except as provided in the next paragraph, no beneficial interest in the
Regulation S Global Certificate for any Class of Book-Entry Non-Registered
Certificates shall be transferred to any Person who takes delivery other than in
the form of a beneficial interest in such Regulation S Global Certificate. On
and prior to the Release Date, the Certificate Owner desiring to effect any such
Transfer shall be required to obtain from such Certificate Owner's prospective
Transferee a written certification substantially in the form set forth in
Exhibit E-2D hereto certifying that such Transferee is not a United States
Securities Person. On or prior to the Release Date, beneficial interests in the
Regulation S Global Certificate for each Class of Book-Entry Non-Registered
Certificates may be held only through Euroclear or Clearstream. The Regulation S
Global Certificate for each Class of Book-Entry Non-Registered Certificates
shall be deposited with the Trustee as custodian for the Depository and
registered in the name of Cede & Co. as nominee of the Depository.
Notwithstanding the preceding paragraph, after the Release Date, any
interest in the Regulation S Global Certificate for a Class of Book-Entry
Non-Registered Certificates may be transferred by the Depositor or any Affiliate
of the Depositor to any Person who takes delivery in the form of a beneficial
interest in the Rule 144A Global Certificate for such Class of Certificates upon
delivery to the Certificate Registrar of (x) a certificate to the effect that
the Certificate Owner desiring to effect such Transfer is the Depositor or an
Affiliate of the Depositor and (y) such written orders and instructions as are
required under the applicable procedures of the Depository, Clearstream and
Euroclear to direct the Certificate Administrator to debit the account of a
Depository Participant by a denomination of interests in such Regulation S
Global Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Rule 144A Global Certificate, that is equal to
the denomination of beneficial interests in the Class X-1, Class X-2, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N
or Class P Certificates, as applicable, to be transferred. Upon delivery to the
Certificate Registrar of such certification and orders and
-308-
instructions, the Certificate Administrator, subject to and in accordance with
the applicable procedures of the Depository, shall reduce the denomination of
the Regulation S Global Certificate in respect of the Class X-1, Class X-2,
Class G, Class H. Class J, Class K, Class L, Class M, Class N or Class P
Certificates, as applicable, and increase the denomination of the Rule 144A
Global Certificate for such Class, by the denomination of the beneficial
interest in such Class specified in such orders and instructions.
None of the Depositor, the Underwriters, the Certificate Administrator,
the Trustee, the Fiscal Agent, the Master Servicers, the Special Servicers, the
Tax Administrator or the Certificate Registrar is obligated to register or
qualify any Class of Non-Registered Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under this
Agreement to permit the Transfer of any Non-Registered Certificate or interest
therein without registration or qualification. Any Certificateholder or
Certificate Owner desiring to effect a Transfer of any Non-Registered
Certificate or interest therein shall, and does hereby agree to, indemnify the
Depositor, the Underwriters, the Certificate Administrator, the Trustee, the
Fiscal Agent, each Master Servicer, each Special Servicer, the Tax Administrator
and the Certificate Registrar against any liability that may result if such
Transfer is not exempt from the registration and/or qualification requirements
of the Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws.
(c) No Transfer of a Certificate or any interest therein shall be made
(A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, ▇▇▇▇▇ plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (B) to any Person who is
directly or indirectly purchasing such Certificate or interest therein on behalf
of, as named fiduciary of, as trustee of, or with assets of a Plan, if the
purchase and holding of such Certificate or interest therein by the prospective
Transferee would result in a violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the imposition of an excise tax under
Section 4975 of the Code. Except in connection with the initial issuance of the
Non-Registered Certificates or any Transfer of a Non-Registered Certificate or
any interest therein by the Depositor, the Underwriter or any of their
respective Affiliates or, in the case of a Global Certificate for any Class of
Book-Entry Non-Registered Certificates, any Transfer thereof to a successor
Depository or to the applicable Certificate Owner(s) in accordance with Section
5.03, the Certificate Registrar shall refuse to register the Transfer of a
Definitive Non-Registered Certificate unless it has
-309-
received from the prospective Transferee, and any Certificate Owner transferring
an interest in a Global Certificate for any Class of Book-Entry Non-Registered
Certificates shall be required to obtain from its prospective Transferee, either
(i) a certification to the effect that such prospective Transferee is not a Plan
and is not directly or indirectly purchasing such Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) alternatively, a certification to the effect that the purchase and
holding of such Certificate or interest therein by such prospective Transferee
is exempt from the prohibited transaction provisions of Sections 406(a) and (b)
and 407 of ERISA and the excise taxes imposed on such prohibited transactions by
Sections 4975(a) and (b) of the Code, by reason of Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) alternatively, but only
in the case of a Non-Registered Certificate that is an Investment Grade
Certificate (other than, if applicable, a Class R or Class V Certificate) that
is being acquired by or on behalf of a Plan in reliance on the Prohibited
Transaction Exemption, a certification to the effect that such Plan (X) is an
accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (Y) is not sponsored (within the meaning of Section 3(16)(B) of
ERISA) by the Trustee, the Certificate Administrator, the Depositor, any Pooled
Mortgage Loan Seller, either Master Servicer, either Special Servicer, any
Sub-Servicer, any Exemption Favored Party or any Borrower with respect to
Mortgage Loans constituting more than 5% of the aggregate unamortized principal
balance of all the Mortgage Loans determined as of the Closing Date, or by any
Affiliate of such Person, and (Z) agrees that it will obtain from each of its
Transferees that are Plans a written representation that such Transferee, if a
Plan, satisfied the requirements of the immediately preceding clauses (iii)(X)
and (iii)(Y), together with a written agreement that such Transferee will obtain
from each of its Transferees that are Plans a similar written representation
regarding satisfaction of the requirements of the immediately preceding clauses
(iii)(X) and (iii)(Y); or (iv) alternatively, a certification of facts and an
Opinion of Counsel which otherwise establish to the reasonable satisfaction of
the Trustee or such Certificate Owner, as the case may be, that such Transfer
will not result in a violation of Section 406 or 407 of ERISA or Section 4975 of
the Code or result in the imposition of an excise tax under Section 4975 of the
Code. It is hereby acknowledged that the forms of certification attached hereto
as Exhibit G-1 (in the case of Definitive Non-Registered Certificates) and
Exhibit G-2 (in the case of ownership interests in Book-Entry Non-Registered
Certificates) are acceptable for purposes of the preceding sentence. If any
Transferee of a Certificate (including a Registered Certificate) or any interest
therein does not, in connection with the subject Transfer, deliver to the
Certificate Registrar (in the case of a Definitive Certificate) or the
Transferor (in the case of ownership interests in a Book-Entry Certificate) any
certification and/or Opinion of Counsel contemplated by the
-310-
second preceding sentence, then such Transferee shall be deemed to have
represented and warranted that either: (i) such Transferee is not a Plan and is
not directly or indirectly purchasing such Certificate or interest therein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan; or
(ii) the purchase and holding of such Certificate or interest therein by such
Transferee is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code.
(d) (i) Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Certificate Administrator under clause (ii) (A)
below to deliver payments to a Person other than such Person and to have
irrevocably authorized the Certificate Administrator under clause (ii) (B) below
to negotiate the terms of any mandatory disposition and to execute all
instruments of Transfer and to do all other things necessary in connection with
any such disposition. The rights of each Person acquiring any Ownership Interest
in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class
R Certificate shall be a Permitted Transferee and shall promptly
notify the Tax Administrator and the Certificate Administrator of
any change or impending change in its status as a Permitted
Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest
in a Class R Certificate, the Certificate Registrar shall require
delivery to it, and shall not register the Transfer of any Class R
Certificate until its receipt, of an affidavit and agreement
substantially in the form attached hereto as Exhibit G-1 (a
"Transfer Affidavit and Agreement"), from the proposed Transferee,
representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in the Class R Certificate that is the subject
of the proposed Transfer as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it
retains its Ownership Interest in a Class R Certificate it will
endeavor to remain a Permitted
-311-
Transferee, and that it has reviewed the provisions of this
Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement
by a proposed Transferee under clause (B) above, if a Responsible
Officer of either the Certificate Administrator or the Certificate
Registrar has actual knowledge that the proposed Transferee is not
a Permitted Transferee, no Transfer of an Ownership Interest in a
Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class
R Certificate shall agree (1) to require a Transfer Affidavit and
Agreement from any prospective Transferee to whom such Person
attempts to Transfer its Ownership Interest in such Class R
Certificate and (2) not to Transfer its Ownership Interest in such
Class R Certificate unless it provides to the Certificate
Registrar a certificate substantially in the form attached hereto
as Exhibit G-2 stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted
Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a Class
R Certificate, by purchasing such Ownership Interest, agrees to
give the Tax Administrator and the Certificate Administrator
written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury regulation section
1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership
Interest in a Class R Certificate, if it is, or is holding an
Ownership Interest in a Class R Certificate on behalf of, a
"pass-through interest holder".
(ii) (A) If any purported Transferee shall become a Holder of
a Class R Certificate in violation of the provisions of
this Section 5.02(d), then the last preceding Holder of
such Class R Certificate that was in compliance with the
provisions of this Section 5.02(d) shall be restored, to
the extent permitted by law, to all rights as Holder
thereof retroactive to the date of registration of such
-312-
Transfer of such Class R Certificate. None of the
Depositor, the Certificate Administrator, the Trustee or
the Certificate Registrar shall be under any liability to
any Person for any registration of Transfer of a Class R
Certificate that is in fact not permitted by this Section
5.02(d) or for making any payments due on such
Certificate to the Holder thereof or for taking any other
action with respect to such Holder under the provisions
of this Agreement.
(B) If any purported Transferee shall become a Holder of
a Class R Certificate in violation of the restrictions in
this Section 5.02(d), then, to the extent that
retroactive restoration of the rights of the preceding
Holder of such Class R Certificate as described in clause
(ii)(A) above shall be invalid, illegal or unenforceable,
the Certificate Administrator shall have the right but
not the obligation, to cause the Transfer of such Class R
Certificate to a Permitted Transferee selected by the
Certificate Administrator on such terms as the
Certificate Administrator may choose, and the Certificate
Administrator shall not be liable to any Person having an
Ownership Interest in such Class R Certificate as a
result of the Certificate Administrator's exercise of
such discretion. Such purported Transferee shall promptly
endorse and deliver such Class R Certificate in
accordance with the instructions of the Certificate
Administrator. Such Permitted Transferee may be the
Certificate Administrator itself or any Affiliate of the
Certificate Administrator.
(iii) The Tax Administrator shall make available to the IRS and to
those Persons specified by the REMIC Provisions all information furnished
to it by the other parties hereto necessary to compute any tax imposed (A)
as a result of the Transfer of an Ownership Interest in a Class R
Certificate to any Person who is a Disqualified Organization, including the
information described in Treasury regulations sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the "excess inclusions" of such Class R
Certificate and (B) as a result of any regulated investment company, real
estate investment trust, common trust fund, partnership, trust, estate or
-313-
organization described in Section 1381 of the Code that holds an Ownership
Interest in a Class R Certificate having as among its record holders at any
time any Person which is a Disqualified Organization, and each of the other
parties hereto shall furnish to the Tax Administrator all information in
its possession necessary for the Tax Administrator to discharge such
obligation. The Person holding such Ownership Interest shall be responsible
for the reasonable compensation of the Tax Administrator for providing
information thereto pursuant to this subsection (d)(iii) and Section
10.01(h)(i).
(iv) The provisions of this Section 5.02(d) set forth prior to this
clause (iv) may be modified, added to or eliminated, provided that there
shall have been delivered to the Certificate Administrator and the Tax
Administrator the following:
(A) written confirmation from each Rating Agency to the effect that
the modification of, addition to or elimination of such provisions
will not cause an Adverse Rating Event; and
(B) an Opinion of Counsel, in form and substance satisfactory to the
Certificate Administrator and the Tax Administrator, obtained at
the expense of the party seeking such modification of, addition to
or elimination of such provisions (but in no event at the expense
of the Trustee, the Tax Administrator or the Trust), to the effect
that doing so will not (1) cause any REMIC Pool to cease to
qualify as a REMIC or be subject to an entity-level tax caused by
the Transfer of any Class R Certificate to a Person which is not a
Permitted Transferee or (2) cause a Person other than the
prospective Transferee to be subject to a REMIC-related tax caused
by the Transfer of a Class R Certificate to a Person that is not a
Permitted Transferee.
(e) If a Person is acquiring any Non-Registered Certificate or interest
therein as a fiduciary or agent for one or more accounts, such Person shall be
required to deliver to the Certificate Registrar (or, in the case of an interest
in a Book-Entry Non-Registered Certificate, to the Certificate Owner that is
transferring such interest) a certification to the effect that, and such other
evidence as may be reasonably required by the Certificate Administrator (or such
Certificate Owner) to confirm that, it has (i) sole investment discretion with
respect to each such account and (ii) full power to make the applicable
foregoing acknowledgments, representations, warranties, certifications and
agreements with
-314-
respect to each such account as set forth in Subsections (b), (c) and/or (d), as
appropriate, of this Section 5.02.
(f) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute and the Authenticating Agent shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class evidencing a like aggregate Percentage Interest
in such Class.
(g) At the option of any Holder, its Certificates may be exchanged for
other Certificates of authorized denominations of the same Class evidencing a
like aggregate Percentage Interest in such Class upon surrender of the
Certificates to be exchanged at the offices of the Certificate Registrar
maintained for such purpose. Whenever any Certificates are so surrendered for
exchange, the Certificate Registrar shall execute and the Authenticating Agent
shall authenticate and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(h) Every Certificate presented or surrendered for transfer or exchange
shall (if so required by the Certificate Registrar) be duly endorsed by, or be
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder thereof or his attorney duly
authorized in writing.
(i) No service charge shall be imposed for any transfer or exchange of
Certificates, but the Certificate Administrator or Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
(j) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
SECTION 5.03. Book-Entry Certificates.
(a) The Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class
F, Class X-1, Class X-2, Class G, Class H, Class J, Class K, Class L, Class M,
Class N and Class P Certificates shall, in the case of each such Class,
initially be issued as one or more Certificates registered in the name of the
-315-
Depository or its nominee and, except as provided in Section 5.03(c) and in the
penultimate paragraph of 5.02(b), a Transfer of such Certificates may not be
registered by the Certificate Registrar unless such Transfer is to a successor
Depository that agrees to hold such Certificates for the respective Certificate
Owners with Ownership Interests therein. Such Certificate Owners shall hold and
Transfer their respective Ownership Interests in and to such Certificates
through the book-entry facilities of the Depository and, except as provided in
Section 5.03(c) below, shall not be entitled to definitive, fully registered
Certificates ("Definitive Certificates") in respect of such Ownership Interests.
The Class X-1, Class X-2, Class G, Class H, Class J, Class K, Class L, Class M,
Class N and Class P Certificates initially sold to Qualified Institutional
Buyers in reliance on Rule 144A or in reliance on another exemption from the
registration requirements of the Securities Act shall, in the case of each such
Class, be represented by the Rule 144A Global Certificate for such Class, which
shall be deposited with the Certificate Administrator as custodian for the
Depository and registered in the name of Cede & Co. as nominee of the
Depository. The Class X-1, Class X-2, Class G, Class H, Class J, Class K, Class
L, Class M, Class N and Class P Certificates initially sold in offshore
transactions in reliance on Regulation S shall, in the case of each such Class,
be represented by the Regulation S Global Certificate for such Class, which
shall be deposited with the Certificate Administrator as custodian for the
Depository and registered in the name of Cede & Co. as nominee of the
Depository. All Transfers by Certificate Owners of their respective Ownership
Interests in the Book-Entry Certificates shall be made in accordance with the
procedures established by the Depository Participant or brokerage firm
representing each such Certificate Owner. Each Depository Participant shall only
transfer the Ownership Interests in the Book-Entry Certificates of Certificate
Owners it represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures.
(b) The Certificate Administrator, the Master Servicers, the Special
Servicers, the Depositor and the Certificate Registrar may for all purposes,
including the making of payments due on the Book-Entry Certificates, deal with
the Depository as the authorized representative of the Certificate Owners with
respect to such Certificates for the purposes of exercising the rights of
Certificateholders hereunder. The rights of Certificate Owners with respect to
the Book-Entry Certificates shall be limited to those established by law and
agreements between such Certificate Owners and the Depository Participants and
brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of the Book-Entry
Certificates with respect to any particular matter shall not be deemed
inconsistent if they are made with respect to different Certificate Owners. The
Certificate
-316-
Administrator may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and shall give
notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Certificate Administrator, the
Trustee and the Certificate Registrar in writing that the Depository is no
longer willing or able to properly discharge its responsibilities with respect
to a Class of the Book-Entry Certificates, and (B) the Depositor is unable to
locate a qualified successor, or (ii) the Depositor at its option advises the
Trustee, the Certificate Administrator and the Certificate Registrar in writing
that it elects to terminate the book-entry system through the Depository with
respect to a Class of Book-Entry Certificates, the Certificate Registrar shall
notify all affected Certificate Owners, through the Depository, of the
occurrence of any such event and of the availability of Definitive Certificates
to such Certificate Owners requesting the same.
Upon surrender to the Certificate Registrar of the Book-Entry
Certificates of any Class thereof by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, the Definitive Certificates in respect of such Class to the Certificate
Owners identified in such instructions. None of the Depositor, the Master
Servicers, the Special Servicers, the Certificate Administrator, the Trustee or
the Certificate Registrar shall be liable for any delay in delivery of such
instructions, and each of them may conclusively rely on, and shall be protected
in relying on, such instructions. Upon the issuance of Definitive Certificates
for purposes of evidencing ownership of any Class of Registered Certificates,
the registered holders of such Definitive Certificates shall be recognized as
Certificateholders hereunder and, accordingly, shall be entitled directly to
receive payments on, to exercise Voting Rights with respect to, and to transfer
and exchange such Definitive Certificates.
(d) Notwithstanding any other provisions contained herein, neither the
Certificate Administrator nor the Certificate Registrar shall have any
responsibility whatsoever to monitor or restrict the Transfer of ownership
interests in any Certificate (including but not limited to any Non-Registered
Certificate) which interests are transferable through the book-entry facilities
of the Depository.
-317-
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Certificate Administrator and the Certificate Registrar such security or
indemnity as may be reasonably required by them to save each of them harmless,
then, in the absence of actual notice to the Certificate Administrator or the
Certificate Registrar that such Certificate has been acquired by a bona fide
purchaser, the Certificate Registrar shall execute and the Authenticating Agent
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of the same
Class and like Percentage Interest. Upon the issuance of any new Certificate
under this section, the Certificate Administrator and the Certificate Registrar
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Certificate Administrator and
the Certificate Registrar) connected therewith. Any replacement Certificate
issued pursuant to this section shall constitute complete and indefeasible
evidence of ownership in the applicable REMIC created hereunder, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, the Depositor,
the Master Servicers, the Special Servicers, the Certificate Administrator, the
Trustee, the Certificate Registrar and any agent of any of them may treat the
Person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 4.01
and for all other purposes whatsoever and none of the Depositor, the Master
Servicers, the Special Servicers, the Trustee, the Certificate Registrar or any
agent of any of them shall be affected by notice to the contrary.
SECTION 5.06. Certification by Certificate Owners.
To the extent that under the terms of this Agreement, it is necessary
to determine whether any Person is a Certificate Owner, the Certificate
Administrator shall make such determination based on a certificate of such
Person which shall be substantially in the form of paragraph 1 of Exhibit J-1
hereto (or such other form as shall be reasonably acceptable to the Certificate
Administrator) and shall specify the Class and Certificate Principal Balance or
Certificate
-318-
Notional Amount, as the case may be, of the Book-Entry Certificate beneficially
owned; provided, however, that none of the Trustee, the Certificate
Administrator or the Certificate Registrar shall knowingly recognize such Person
as a Certificate Owner if such Person, to the actual knowledge of a Responsible
Officer of the Trustee, the Certificate Administrator or the Certificate
Registrar, as the case may be, acquired its Ownership Interest in a Book-Entry
Certificate in violation of Section 5.02(c), or if such Person's certification
that it is a Certificate Owner is in direct conflict with information actually
known by a Responsible Officer of the Trustee, the Certificate Administrator or
the Certificate Registrar, with respect to the identity of a Certificate Owner.
The Trustee, the Certificate Administrator and the Certificate Registrar shall
each exercise its reasonable discretion in making any determination under this
Section 5.06(b) and shall afford any Person providing information with respect
to its beneficial ownership of any Book-Entry Certificate an opportunity to
resolve any discrepancies between the information provided and any other
information available to the Trustee, the Certificate Administrator or the
Certificate Registrar, as the case may be.
-319-
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS
AND THE SPECIAL SERVICERS
SECTION 6.01. Liability of the Depositor, the Master Servicers
and the Special Servicers.
The Depositor, the Master Servicers and the Special Servicers shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, each Master Servicer
and each Special Servicer.
SECTION 6.02. Merger, Consolidation or Conversion of the
Depositor, a Master Servicer or a Special Servicer.
(a) Subject to Section 6.02(b), the Depositor, the Master Servicers and
the Special Servicers shall each keep in full effect its existence, rights and
franchises as a corporation, bank, trust company, partnership, limited liability
company, association or other legal entity under the laws of the jurisdiction
wherein it was organized, and each shall obtain and preserve its qualification
to do business as a foreign entity in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
(b) Each of the Depositor, the Master Servicers and the Special
Servicers may be merged or consolidated with or into any Person, or transfer all
or substantially all of its assets to any Person, in which case any Person
resulting from any merger or consolidation to which the Depositor, a Master
Servicer or a Special Servicer shall be a party, or any Person succeeding to the
business of the Depositor, a Master Servicer, a Special Servicer, shall be the
successor of the Depositor, such Master Servicer or a Special Servicer, as the
case may be, hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that no successor or surviving
Person shall succeed to the rights of either Master Servicer or a Special
Servicer unless (i) such succession will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee by each Rating Agency) and (ii) such successor or surviving Person makes
the applicable representations and
-320-
warranties set forth in Section 2.05 (in the case of a successor or surviving
Person to PAR as a Master Servicer), Section 2.06 (in the case of a successor or
surviving Person to WFB as a Master Servicers), Section 2.07 (in the case of a
successor or surviving Person to the General Special Servicer), as applicable or
Section 2.09 (in the case of a successor or surviving Person to the RREEF
Textron Special Servicer).
SECTION 6.03. Limitation on Liability of the Depositor, the
Master Servicers and the Special Servicers.
(a) None of the Depositor, the Master Servicers or the Special
Servicers shall be under any liability to the Trust, the Trustee, the
Certificateholders or the RREEF Textron B-Note Holder for any action taken or
not taken in good faith pursuant to this Agreement or for errors in judgment;
provided, however, that this provision shall not protect the Depositor, a Master
Servicer or a Special Servicer against any liability to the Trust, the Trustee,
the Certificateholders or the RREEF Textron B-Note Holder for the breach of a
representation or warranty made by such party herein, or against any expense or
liability specifically required to be borne by such party without right of
reimbursement pursuant to the terms hereof, or against any liability which would
otherwise be imposed by reason of misfeasance, bad faith or negligence in the
performance of, or negligent disregard of, such party's obligations or duties
hereunder. The Depositor, each Master Servicer, each Special Servicer and any
director, member, manager, officer, employee or agent of any such party may rely
in good faith on any document of any kind which, prima facie, is properly
executed and submitted by any Person respecting any matters arising hereunder.
The Depositor, each Master Servicer, each Special Servicer and any director,
member, manager, officer, employee or agent of any such party, shall be
indemnified and held harmless by the Trust out of the relevant Collection
Account, as provided in Section 3.05(a), or the Distribution Account, as
provided in Section 3.05(b), against any loss, liability, cost or expense
(including reasonable legal fees and expenses) incurred in connection with any
legal action or claim relating to this Agreement or the Certificates, other than
any loss, liability, cost or expense: (i) specifically required to be borne
thereby pursuant to the terms hereof; (ii) that constitutes a Servicing Advance
that is otherwise reimbursable under this Agreement; or (iii) incurred in
connection with any legal action or claim against such party resulting from any
breach of a representation or warranty made herein, any misfeasance, bad faith
or negligence in the performance of, or negligent disregard of, obligations or
duties hereunder or any willful or negligent violation of applicable law. None
of the Depositor, the Master Servicers or the Special Servicers shall be under
any obligation to appear in, prosecute or defend any legal action unless such
action is related to its
-321-
respective duties under this Agreement and, except in the case of a legal action
the costs of which such party is specifically required hereunder to bear, in its
opinion does not involve it in any ultimate expense or liability for which it
would not be reimbursed hereunder; provided, however, that the Depositor, a
Master Servicer or a Special Servicer may in its discretion undertake any such
action which it may reasonably deem necessary or desirable with respect to the
enforcement and/or protection of the rights and duties of the parties hereto and
the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action, and any liability resulting therefrom, shall
be expenses, costs and liabilities of the Trust, and the Depositor, such Master
Servicer or such Special Servicer, as the case may be, shall be entitled to be
reimbursed therefor from the relevant Collection Account, as provided in Section
3.05(a), or the Distribution Account, as provided in Section 3.05(b).
(b) In addition, none of the Master Servicers and the Special Servicers
shall have any liability with respect to, and each of the Master Servicers and
the Special Servicers shall be entitled to rely as to the truth of the
statements made and the correctness of the opinions expressed therein on, any
certificates or opinions furnished to such Master Servicer or such Special
Servicer, as the case may be, and conforming to the requirements of this
Agreement. Each of the Master Servicers and the Special Servicers may rely in
good faith on information provided to it by the other parties hereto (unless the
provider and the recipient of such information are the same Person or
Affiliates) and by the Borrowers and property managers, and will have no duty to
investigate or verify the accuracy thereof. None of the Master Servicers and the
Special Servicers shall have any 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 such Master Servicer or such Special Servicer, as the case may be, and
conforming to the requirements of this Agreement. Each of the Master Servicers
and the Special Servicers may rely, 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 and each of them may consult with counsel, in which case
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. Furthermore, none of the Master Servicers and the Special
Servicers shall have any liability under this Agreement for any failure of any
-322-
other such Person (or any other party to this Agreement) to perform such
Person's obligations or duties hereunder.
SECTION 6.04. Resignation of Master Servicers and Special
Servicers.
(a) Each of the Master Servicers and the Special Servicers may resign
from the obligations and duties hereby imposed on it, upon a determination that
its duties hereunder are no longer permissible under applicable law or are in
material conflict by reason of applicable law with any other activities carried
on by it (the other activities of such Master Servicer or such Special Servicer,
as the case may be, so causing such a conflict being of a type and nature
carried on by such Master Servicer or such Special Servicer, as the case may be,
at the date of this Agreement). Any such determination requiring the resignation
of a Master Servicer or a Special Servicer shall be evidenced by an Opinion of
Counsel to such effect which shall be delivered to the Trustee, with a copy to
the Certificate Administrator and the Controlling Class Representative. Unless
applicable law requires the resignation of a Master Servicer or a Special
Servicer (as the case may be) to be effective immediately, and the Opinion of
Counsel delivered pursuant to the prior sentence so states, no such resignation
shall become effective until the Trustee or other successor shall have assumed
the responsibilities and obligations of the resigning party in accordance with
Section 3.25 or Section 7.02 hereof; provided that, if no successor to such
Master Servicer or such Special Servicer, as the case may be, shall have been so
appointed and have accepted appointment within 90 days after such Master
Servicer or such Special Servicer, as the case may be, has given notice of such
resignation, the resigning Master Servicer or Special Servicer, as the case may
be, may petition any court of competent jurisdiction for the appointment of a
successor thereto.
(b) In addition, each of the Master Servicers and the Special Servicers
shall have the right to resign at any other time, provided that (i) a willing
successor thereto (including any such successor proposed by the resigning party)
has been found that is reasonably acceptable to the Trustee and, if such
successor does not have a master servicer rating (in the case of a resigning
Master Servicer) from Fitch that is equal to or greater than "CMS2", reasonably
acceptable to the Controlling Class Representative and, solely in the case of
the RREEF Textron Special Servicer if it is a resigning Special Servicer,
reasonably acceptable to the RREEF Textron B-Note Holder and, solely in the case
of the General Special Servicer if it is a resigning Special Servicer,
acceptable to the Controlling Class Representative in its discretion, (ii) each
of the Rating Agencies confirms to the Trustee in writing that the successor's
appointment will not result in an Adverse Rating Event with respect to any Class
of Rated Certificates, (iii)
-323-
the resigning party pays all costs and expenses in connection with such
transfer, and (iv) the successor accepts appointment prior to the effectiveness
of such resignation.
(c) None of the Master Servicers and the Special Servicers shall be
permitted to resign except as contemplated in subsections (a) and (b) of this
Section 6.04. Consistent with the foregoing, none of the Master Servicers and
the Special Servicers shall (except in connection with any resignation thereby
permitted above in this Section 6.04 or as otherwise expressly provided herein,
including the provisions of Section 3.11(a), Section 3.22 and/or Section 6.02)
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person or delegate to, subcontract with, or authorize or appoint any other
Person to perform any of the duties, covenants or obligations to be performed by
it hereunder. If, pursuant to any provision hereof, the duties of a Master
Servicer or a Special Servicer are transferred to a successor thereto, the
entire amount of compensation payable to such Master Servicer (including without
limitation, in the case of the Master Servicer that is the Servicer Report
Administrator, the Servicer Report Administrator Fee) or such Special Servicer,
as the case may be, that accrues pursuant hereto from and after the date of such
transfer shall be payable to such successor, except (in the case of a Special
Servicer) to the extent provided in Section 3.11(c).
SECTION 6.05. Rights of the Depositor and the Trustee in Respect
of the Master Servicers and the Special Servicers.
Each of the Master Servicers and the Special Servicers shall afford the
Depositor and the Trustee, upon reasonable notice, during normal business hours
access to all records maintained by it in respect of its rights and obligations
hereunder and access to such of its officers as are responsible for such
obligations. Upon reasonable request, each of the Master Servicers and the
Special Servicers shall furnish the Depositor and the Trustee with its most
recent publicly available annual audited financial statements (or, if not
available, the most recent publicly available audited annual financial
statements of its corporate parent) and such other information as is publicly
available regarding its business, affairs, property and condition, financial or
otherwise; provided that neither the Depositor nor the Trustee may disclose the
contents of such financial statements or other information to non-affiliated
third parties (other than accountants, attorneys, financial advisors and other
representatives retained to help it evaluate such financial statements or other
information), unless it is required to do so under applicable securities laws or
is otherwise compelled to do so as a matter of law. Each of the Master Servicers
and the Special Servicers may affix to any such
-324-
information described in this Section 6.05 provided by it any disclaimer it
deems appropriate in its reasonable discretion. The Depositor may, but is not
obligated to, enforce the obligations of any Master Servicer or Special Servicer
hereunder and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of any Master Servicer or a Special Servicer
hereunder or exercise the rights of a Master Servicer or a Special Servicer
hereunder; provided, however, that none of the Master Servicers and the Special
Servicers shall be relieved of any of its obligations hereunder by virtue of
such performance by the Depositor or its designee. The Depositor shall not have
any responsibility or liability for any action or failure to act by a Master
Servicer or a Special Servicer and is not obligated to supervise the performance
of any Master Servicer or Special Servicer under this Agreement or otherwise.
SECTION 6.06. Master Servicers and Special Servicers May Own
Certificates.
Any Master Servicer, Special Servicer or Affiliate thereof may become
the Holder of (or, in the case of a Book-Entry Certificate, Certificate Owner
with respect to) any Certificate with (except as otherwise set forth in the
definition of "Certificateholder") the same rights it would have if it were not
a Master Servicer, a Special Servicer or an Affiliate thereof. If, at any time
during which any Master Servicer, Special Servicer or Affiliate of a Master
Servicer or a Special Servicer is the Holder of (or, in the case of a Book-Entry
Certificate, Certificate Owner with respect to) any Certificate, such Master
Servicer or such Special Servicer, as the case may be, proposes to take any
action (including for this purpose, omitting to take a particular action) that
is not expressly prohibited by the terms hereof and would not, in the reasonable
judgment of such Master Servicer or such Special Servicer (as the case may be),
violate the Servicing Standard, but that, if taken, might nonetheless, in the
reasonable judgment of such Master Servicer or such Special Servicer (as the
case may be), be considered by other Persons to violate the Servicing Standard,
then such Master Servicer or such Special Servicer, as the case may be, may (but
need not) seek the approval of the Certificateholders to such action by
delivering to the Certificate Administrator (with a copy to the Trustee) a
written notice that (a) states that it is delivered pursuant to this Section
6.06, (b) identifies the Percentage Interest in each Class of Certificates
beneficially owned by such Master Servicer or such Special Servicer, as the case
may be, or by an Affiliate thereof and (c) describes in reasonable detail the
action that such Master Servicer or such Special Servicer, as the case may be,
proposes to take. The Certificate Administrator, upon receipt of such notice,
shall forward it to the Certificateholders (other than such Master Servicer and
its Affiliates or such Special Servicer and its Affiliates, as appropriate),
together with a request for approval by the Certificateholders of each
-325-
such proposed action. If at any time Certificateholders holding greater than 50%
of the Voting Rights of all Certificateholders (calculated without regard to the
Certificates beneficially owned by such Master Servicer or its Affiliates or
such Special Servicer or its Affiliates, as the case may be) shall have
consented in writing to the proposal described in the written notice, and if
such Master Servicer or such Special Servicer, as the case may be, shall act as
proposed in the written notice, such action shall be deemed to comply with the
Servicing Standard. The Certificate Administrator shall be entitled to
reimbursement from the subject Master Servicer or the subject Special Servicer,
as applicable, for the reasonable expenses of the Certificate Administrator
incurred pursuant to this paragraph. It is not the intent of the foregoing
provision that any Master Servicer or Special Servicer be permitted to invoke
the procedure set forth herein with respect to routine servicing matters arising
hereunder, but rather in the case of unusual circumstances.
-326-
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by a Master Servicer to deposit into its Collection
Account or the RREEF Textron B-Note Account, if applicable, any amount
required to be so deposited under this Agreement, which failure continues
unremedied for three Business Days following the date on which such deposit
was first required to be made; or
(ii) any failure by a Special Servicer to deposit into its REO Account
or to deposit, or remit to the applicable Master Servicer for deposit, into
the applicable Master Servicer's Collection Account or the RREEF Textron
B-Note Account, if applicable, any amount required to be so deposited or
remitted under this Agreement, which failure continues unremedied for three
Business Days following the date on which such deposit or remittance, as
the case may be, was first required to be made; or
(iii) any failure by a Master Servicer to remit to the Certificate
Administrator for deposit into the Distribution Account, on any P&I Advance
Date, the full amount of P&I Advances required to be made by such Master
Servicer on such date or, on any Master Servicer Remittance Date, the full
amount of the Master Servicer Remittance Amount and any Compensating
Interest Payment required to be remitted by such Master Servicer on such
date, which failure continues unremedied until 9:00 a.m. (New York City
time) on such Distribution Date or Master Servicer Remittance Date, as the
case may be, provided, however, that if a Master Servicer fails to make any
deposit contemplated by this Section 7.01(a)(iii), including any P&I
Advance, which deposit is required to be made by such Master Servicer on
any Master Servicer Remittance Date (without regard to any grace period),
then the Master Servicer shall pay to the Certificate Administrator, for
the account of the Certificate Administrator, interest on such late
remittance at the Reimbursement Rate from and including such Master
Servicer Remittance Date to but excluding the related Distribution Date; or
-327-
(iv) any failure by a Master Servicer to timely make any Servicing
Advance required to be made by it hereunder, which Servicing Advance
remains unmade for a period of three Business Days following the date on
which notice shall have been given to such Master Servicer by the Trustee
as provided in Section 3.11(f); or
(v) any failure by a Special Servicer to timely make (or request the
applicable Master Servicer to make) any Servicing Advance required to be
made by it hereunder, which Servicing Advance remains unmade for a period
of three Business Days following the date on which notice has been given to
such Special Servicer by the Trustee as provided in Section 3.11(f); or
(vi) any failure on the part of a Master Servicer or a Special Servicer
duly to observe or perform in any material respect any other of the
covenants or agreements on the part of such Master Servicer or such Special
Servicer, as the case may be, contained in this Agreement, which failure
continues unremedied for a period of 60 days after the date on which
written notice of such failure, requiring the same to be remedied, shall
have been given to such Master Servicer or such Special Servicer, as the
case may be, by any other party hereto or to such Master Servicer or such
Special Servicer, as the case may be, with a copy to each other party
hereto, or by the Holders of Certificates entitled to at least 25% of the
Voting Rights or, if affected by the failure, by the RREEF Textron B-Note
Holder; provided, however, that, with respect to any such failure that is
not curable within such 60-day period, such Master Servicer or such Special
Servicer, as the case may be, shall have an additional cure period of 30
days to effect such cure so long as such Master Servicer or such Special
Servicer, as the case may be, has commenced to cure such failure within the
initial 60-day period and has provided the Trustee with an Officer's
Certificate certifying that it has diligently pursued, and is continuing to
pursue, a full cure; or
(vii) any breach on the part of a Master Servicer or a Special Servicer
of any representation or warranty contained in this Agreement that
materially and adversely affects the interests of any Class of
Certificateholders or the RREEF Textron B-Note Holder and which continues
unremedied for a period of 60 days after the date on which notice of such
breach, requiring the same to be remedied, shall have been given to such
Master Servicer or such Special Servicer, as the case may be, by any other
party hereto or to such Master Servicer or such Special Servicer, as the
case may be, with a copy to each
-328-
other party hereto, or by the Holders of Certificates entitled to at least
25% of the Voting Rights or, if affected by such breach, the RREEF Textron
B-Note Holder; provided, however, that, with respect to any such breach
that is not curable within such 60-day period, such Master Servicer or such
Special Servicer, as the case may be, shall have an additional cure period
of 30 days to effect such cure so long as such Master Servicer or such
Special Servicer, as the case may be, has commenced to cure such breach
within the initial 60-day period and has provided the Trustee with an
Officer's Certificate certifying that it has diligently pursued, and is
continuing to pursue, a full cure; or
(viii) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against a
Master Servicer or Special Servicer and such decree or order shall have
remained in force undischarged, undismissed or unstayed for a period of 30
days; provided, however, that, with respect to any such decree or order
that cannot be discharged, dismissed or stayed within such 30-day period,
such Master Servicer or such Special Servicer, as the case may be, shall
have an additional period of 60 days to effect such discharge, dismissal or
stay so long as such Master Servicer or such Special Servicer, as the case
may be, has commenced proceedings to have such decree or order dismissed,
discharged or stayed within the initial 30-day period and has provided the
Trustee with an Officer's Certificate certifying that it has diligently
pursued, and is continuing to pursue, such discharge or stay; or
(ix) a Master Servicer or a Special Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings of or relating to it or of
or relating to all or substantially all of its property; or
(x) a Master Servicer or a Special Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a petition to
take advantage of any applicable bankruptcy, insolvency or reorganization
statute, make an assignment for the benefit of its creditors, voluntarily
suspend payment of its obligations, or take any association or company
action in furtherance of the foregoing; or
-329-
(xi) ▇▇▇▇▇'▇ 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 possible
rating downgrade or withdrawal (and such "watch status" placement shall not
have been withdrawn by ▇▇▇▇▇'▇ within 90 days of actual knowledge by the
applicable Master Servicer or the applicable Special Servicer, as the case
may be), and, in case of either of clause (A) or (B), citing servicing
concerns with such Master Servicer or such Special Servicer as the sole or
a material factor in such rating action; or
(xii) a Master Servicer has been downgraded to a servicer rating level
below "CMS3" (or its equivalent) by Fitch, a Special Servicer has been
downgraded to a special servicer rating level below "CSS3" (or its
equivalent) by Fitch; or both (x) the Trustee receives notice from Fitch to
the effect that the continuation of a Master Servicer or a Special Servicer
in such capacity would result in the downgrade, qualification or withdrawal
of any rating then assigned by Fitch to any Class of Rated Certificates and
(y) such notice is not withdrawn, terminated or rescinded within 90 days
following the Trustee's receipt of such notice; or
(xiii) any failure by the applicable Master Servicer to timely make any
payments required to be made by it hereunder to the RREEF Textron B-Note
Holder.
When a single entity acts as two or more of the capacities of the
Master Servicers and the Special Servicers, an Event of Default (other than an
event described in clauses (xi), (xii) and (xiii) above) in one capacity shall
constitute an Event of Default in both or all such capacities.
(b) If any Event of Default with respect to any Master Servicer or
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as the Event of Default shall not have been remedied, the
Trustee may, and at the written direction of either the Holders of Certificates
entitled to not less than 25% of the Voting Rights or (alternatively, but solely
in the case of a Special Servicer) the Controlling Class Representative (but, if
the RREEF Textron Special Servicer is Defaulting Party and a RREEF Textron
Change of Control Event has not occurred or is not continuing, then the related
RREEF Textron B-Note Holder (and neither such Holders nor the Controlling
Representative) shall have the right to give such direction), the Trustee shall
(subject to applicable bankruptcy or insolvency law in the case of clauses
(viii) through (x) of Section 7.01(a)), terminate, by notice in writing to the
Defaulting
-330-
Party (with a copy of such notice to each other party hereto), all of the rights
and obligations (accruing from and after such notice) of the Defaulting Party
under this Agreement and in and to the Trust Fund (other than as a Holder of any
Certificate). From and after the receipt by the Defaulting Party of such written
notice, all of the responsibilities, duties, authority and power of the
Defaulting Party under this Agreement, whether with respect to the Certificates
(other than as a Holder of any Certificate) or the Mortgage Loans or otherwise,
shall pass to and be vested in the Trustee pursuant to and under this Section,
and, without limitation, the Trustee is hereby authorized and empowered to
execute and deliver, on behalf of and at the expense of the Defaulting Party, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise (provided, however, that each of the Master Servicers and the Special
Servicers shall, if terminated pursuant to this Section 7.01(b), continue to be
obligated to pay and entitled to receive all amounts accrued or owing by or to
it under this Agreement on or prior to the date of such termination, whether in
respect of Advances or otherwise, and it and its members, managers, directors,
officers, employees and agents shall continue to be entitled to the benefits of
Section 6.03 notwithstanding any such termination). Each of the Master Servicers
and the Special Servicers agrees that, if it is terminated pursuant to this
Section 7.01(b), it shall promptly (and in any event no later than 20 days
subsequent to its receipt of the notice of termination) provide the Trustee with
all documents and records requested thereby to enable the Trustee to assume the
functions hereunder of such Master Servicer or such Special Servicer, as the
case may be, and shall otherwise cooperate with the Trustee in effecting the
termination of the rights and responsibilities hereunder of such Master Servicer
or such Special Servicer, as the case may be, including the transfer within five
Business Days to the Trustee for administration by it of all cash amounts that
at the time are or should have been credited by a Master Servicer to its
Collection Account, the RREEF Textron B-Note Account (if such Master Servicer is
the applicable Master Servicer for the RREEF Textron Mortgage Loan Pair), the
Distribution Account or any Servicing Account or Reserve Account held by it (if
it is the Defaulting Party) or by the Special Servicer to its REO Account, a
Collection Account, the RREEF Textron B-Note Account or any Servicing Account or
Reserve Account held by it (if it is the Defaulting Party) or that are
thereafter received by or on behalf of it with respect to any Mortgage Loan or
REO Property (provided, however, that if any Master Servicer or Special Servicer
is terminated pursuant to this Section 7.01(b), such Master Servicer or such
Special Servicer, as the case may be, continue to be obligated to pay and
entitled to receive all amounts accrued or owing by or to it
-331-
under this Agreement on or prior to the date of such termination, whether in
respect of Advances or otherwise, and it and its members, managers, directors,
officers, employees and agents shall continue to be entitled to the benefits of
Section 6.03 notwithstanding any such termination). Any costs or expenses
(including those of any other party hereto) incurred in connection with any
actions to be taken by a terminated Master Servicer or Special Servicer pursuant
to this paragraph shall be borne by such Master Servicer or such Special
Servicer, as the case may be (and, in the case of the Trustee's costs and
expenses, if not paid within a reasonable time, shall be borne by the Trust out
of the Collection Account).
If an Event of Default on the part of the Master Servicer for the RREEF
Textron Loan Pair occurs and affects the RREEF Textron B-Note Mortgage Loan and
such Master Servicer is not terminated pursuant to the provisions set forth
above, then notwithstanding that the Event of Default may be waived by the
Certificateholders, the RREEF Textron B-Note Holder shall be entitled to require
that the Master Servicer to appoint a Sub-Servicer that will be responsible for
servicing such Loan Pair.
(c) Notwithstanding Section 7.01(b) of this Agreement, if a Master
Servicer is terminated solely due to an Event of Default under Section
7.01(a)(xi) or (xii) and the terminated Master Servicer provides the Trustee
with the appropriate "request for proposal" materials within the five (5)
Business Days after such termination, then the Trustee shall promptly thereafter
(using such "request for proposal" materials provided by the terminated Master
Servicer) solicit good faith bids for the rights to master service the Mortgage
Loans under this Agreement for which the terminated Master Servicer is the
applicable Master Servicer from at least three (3) Persons qualified to act as
successor Master Servicer hereunder in accordance with Section 6.02 and Section
7.02 for which the Trustee has received written confirmation from each Rating
Agency that the appointment of such person would not result in the downgrade,
withdrawal or qualification of a current rating on any of the Rated Certificates
(any such Person so qualified, a "Qualified Bidder") or, if three (3) Qualified
Bidders cannot be located, then from as many Persons as the Trustee can
determine are Qualified Bidders; provided, however, that (i) at the Trustee's
request, the terminated Master Servicer shall supply the Trustee with the names
of Persons from whom to solicit such bids; and (ii) the Trustee shall not be
responsible if less than three (3) or no Qualified Bidders submit bids for the
right to master service the Mortgage Loans under this Agreement. The bid
proposal shall require any Successful Bidder (as defined below), as a condition
of such bid, to enter into this Agreement as successor Master Servicer with
respect to the applicable Mortgage Loans, and to agree to be bound by the terms
hereof, within forty-five (45) days after the
-332-
termination of the terminated Master Servicer. The Trustee shall solicit bids
(i) on the basis of such successor Master Servicer retaining all applicable
Sub-Servicers to continue the primary servicing of the applicable Mortgage Loans
pursuant to the terms of the respective Sub-Servicing Agreements and to enter
into a Sub-Servicing Agreement with the terminated Master Servicer to service
each of the Mortgage Loans for which it was the applicable Master Servicer and
not subject to a Sub-Servicing Agreement at a sub-servicing fee rate per annum
equal to, for each Mortgage Loan serviced, the excess of the related Master
Servicing Fee Rate minus the sum of two basis points and the related Excess
Servicing Fee Rate (each, a "Servicing-Retained Bid") and (ii) on the basis of
terminating each applicable Sub-Servicing Agreement and each applicable
Sub-Servicer (other than a Designated Sub-Servicer and its Sub-Servicing
Agreement) that it is permitted to terminate in accordance with Section 3.22 and
having no obligation to enter into a Sub-Servicing Agreement with the terminated
Master Servicer (each, a "Servicing-Released Bid"). The Trustee shall select the
Qualified Bidder with the highest cash Servicing-Retained Bid (or, if none, the
highest cash Servicing Released Bid) (the "Successful Bidder") to act as
successor Master Servicer hereunder. The Trustee shall direct the Successful
Bidder to enter into this Agreement as successor Master Servicer pursuant to the
terms hereof (and, if the successful bid was a Servicing-Retained Bid, to enter
into a Sub-Servicing Agreement with the terminated Master Servicer as
contemplated above), no later than forty-five (45) days after the termination of
the terminated Master Servicer.
(d) Upon the assignment and acceptance of the applicable master
servicing (including, in the case of an assignment of the rights of PAR or any
successor thereto as a Master Servicer, the servicer report administrative)
rights hereunder to and by the Successful Bidder, the Trustee shall remit or
cause to be remitted to the terminated Master Servicer the amount of such cash
bid received from the Successful Bidder (net of "out-of-pocket" expenses
incurred in connection with obtaining such bid and transferring servicing).
(e) If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within forty-five (45) days after the Trustee was
appointed as successor Master Servicer or no Successful Bidder was identified
within such forty-five (45) day period, the terminated Master Servicer shall
reimburse the Trustee for all reasonable "out-of-pocket" expenses incurred by
the Trustee in connection with such bid process and the Trustee shall have no
further obligations under this Section 7.01(c). The Trustee thereafter may act
or may select a successor to act as Master Servicer hereunder in accordance with
Section 7.02.
-333-
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time any Master Servicer or Special Servicer resigns
pursuant to Section 6.04(a) or receives a notice of termination pursuant to
Section 7.01, the Trustee shall, subject to Section 3.25, be the successor in
all respects to such Master Servicer or such Special Servicer, as the case may
be, in its capacity as such under this Agreement and the transactions set forth
or provided for herein and shall be subject to all the responsibilities, duties
and liabilities relating thereto and arising thereafter placed on such Master
Servicer or such Special Servicer, as the case may be, by the terms and
provisions hereof, including, if a Master Servicer is the resigning or
terminated party, such Master Servicer's obligation to make Advances; provided,
however, that (i) any failure to perform such duties or responsibilities caused
by the failure of such Master Servicer or such Special Servicer, as the case may
be, to cooperate or to provide information or monies as required by Section 7.01
shall not be considered a default by the Trustee hereunder and (ii) in the case
of a terminated Master Servicer, the Trustee shall cease to act as successor
Master Servicer if an alternative successor is appointed pursuant to Section
7.01(a). Neither the Trustee nor any other successor shall be liable for any of
the representations and warranties of the resigning or terminated party or for
any losses incurred by the resigning or terminated party pursuant to Section
3.06 hereunder nor shall the Trustee or any other successor be required to
purchase any Mortgage Loan hereunder. As compensation therefor, the Trustee
shall be entitled to all fees and other compensation which the resigning or
terminated party would have been entitled to for future services rendered if the
resigning or terminated party had continued to act hereunder. Notwithstanding
the above, if it is unwilling to so act, the Trustee may (and, if it is unable
to so act, or if the Trustee is not approved as an acceptable master servicer or
special servicer, as the case may be, by each Rating Agency, or if the Holders
of Certificates entitled to a majority of all the Voting Rights or the
Controlling Class Representative or (solely in the case of the RREEF Textron
Special Servicer) the RREEF Textron Controlling Party so request(s) in writing,
the Trustee shall), subject to Section 3.25, promptly appoint, or petition a
court of competent jurisdiction to appoint, any established and qualified
institution as the successor to the resigning or terminated Master Servicer or
Special Servicer, as the case may be, hereunder in the assumption of all or any
part of the responsibilities, duties or liabilities of such Master Servicer or
such Special Servicer, as the case may be, hereunder; provided, however, that
(i) such appointment does not result in an Adverse Rating Event with respect to
any Class of Rated Certificates (as confirmed in writing to the Trustee by each
Rating Agency); (ii) if such successor does not have a master servicer rating
(in the case of a resigning or terminated Master Servicer) from Fitch that is
not lower
-334-
than "CMS2" or a special servicer rating (in the case of a resigning or
terminated Special Servicer) from Fitch that is not lower than "CSS2", such
successor is reasonably acceptable to the Controlling Class Representative and
(iii) in the case of the RREEF Textron Special Servicer, such successor is
reasonably acceptable to the RREEF Textron Controlling Party. No appointment of
a successor to any Master Servicer or Special Servicer hereunder shall be
effective until the assumption by such successor of all its responsibilities,
duties and liabilities hereunder, and pending such appointment and assumption,
the Trustee shall act in such capacity as hereinabove provided. In connection
with any such appointment and assumption, the Trustee may make such arrangements
for the compensation of such successor out of payments on the Mortgage Loans or
otherwise as it and such successor shall agree; provided, however, that no such
compensation shall be in excess of that permitted the resigning or terminated
party hereunder. The Depositor, the Trustee, such successor and each other party
hereto shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of a Master Servicer or Special Servicer
pursuant to Section 6.04, any termination of a Master Servicer or Special
Servicer pursuant to Section 7.01, any appointment of a successor to a Master
Servicer or Special Servicer pursuant to Section 6.02, 6.04 or 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
3.25, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register and to the
RREEF Textron B-Note Holder.
(b) Not later than the later of (i) 60 days after the occurrence of any
event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after a Responsible Officer of
the Trustee has actual knowledge of the occurrence of such an event, the Trustee
shall transmit by mail to the Depositor and all Certificateholders notice of
such occurrence, unless such default shall have been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders of Certificates representing at least 66-2/3% of the Voting
Rights allocated to each Class of Certificates affected by any Event of Default
hereunder may waive such Event of Default; provided that an Event of Default
under clause (i), clause (ii), clause (iii), clause (xi) or clause (xii) of
Section 7.01(a) may be waived only by all of the Certificateholders of the
affected
-335-
Classes. Upon any such waiver of an Event of Default, and payment to the Trustee
and the Certificate Administrator of all reasonable costs and expenses incurred
by the Trustee and the Certificate Administrator in connection with such default
prior to its waiver (which costs shall be paid by the party requesting such
waiver), such Event of Default shall cease to exist and shall be deemed to have
been remedied for every purpose hereunder. No such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent thereon
except to the extent expressly so waived. Notwithstanding any other provisions
of this Agreement, for purposes of waiving any Event of Default pursuant to this
Section 7.04, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor shall be entitled to the same Voting Rights with
respect to the matters described above as they would if registered in the name
of any other Person.
SECTION 7.05. Additional Remedies of Trustee Upon Event of
Default.
During the continuance of any Event of Default, so long as such Event
of Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 7.01, shall have the right (exercisable subject to Section
8.01(a)), in its own name and as trustee of an express trust, to take all
actions now or hereafter existing at law, in equity or by statute to enforce its
rights and remedies and to protect the interests, and enforce the rights and
remedies, of the Certificateholders (including the institution and prosecution
of all judicial, administrative and other proceedings and the filings of proofs
of claim and debt in connection therewith). Except as otherwise expressly
provided in this Agreement, no remedy provided for by this Agreement shall be
exclusive of any other remedy, and each and every remedy shall be cumulative and
in addition to any other remedy, and no delay or omission to exercise any right
or remedy shall impair any such right or remedy or shall be deemed to be a
waiver of any Event of Default.
-336-
ARTICLE VIII
THE TRUSTEE, CUSTODIAN, CERTIFICATE ADMINISTRATOR
AND TAX ADMINISTRATOR
SECTION 8.01. Duties of the Trustee, the Custodian, the
Certificate Administrator and the Tax Administrator.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty. The Trustee, the Custodian, the Certificate
Administrator and the Tax Administrator shall be liable in accordance herewith
only to the extent of the respective obligations specifically imposed upon and
undertaken by the Trustee, the Custodian, the Certificate Administrator and the
Tax Administrator.
(b) Upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee, the Custodian, the Certificate Administrator or the Tax Administrator,
as applicable, which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), the Trustee, the
Custodian, the Certificate Administrator or the Tax Administrator, as
applicable, shall examine them to determine whether they conform to the
requirements of this Agreement. If any such instrument is found not to conform
to the requirements of this Agreement in a material manner, the Trustee, the
Custodian, the Certificate Administrator or the Tax Administrator, as
applicable, shall take such action as it deems appropriate to have the
instrument corrected. The Trustee, the Custodian, the Certificate Administrator
or the Tax Administrator, as applicable, shall not be responsible or liable for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Depositor, a Master
Servicer, a Special Servicer, any actual or prospective Certificateholder or
Certificate Owner or any Rating Agency, and accepted by the Trustee, the
Custodian, the Certificate Administrator or the Tax Administrator in good faith,
pursuant to this Agreement.
-337-
(c) No provision of this Agreement shall be construed to relieve the
Trustee, the Tax Administrator or the Certificate Administrator from liability
for its own negligent action, its own negligent failure to act or its own
willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all Events of Default which may have occurred, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee.
(ii) In the absence of bad faith on the part of the Trustee, the
Certificate Administrator or the Tax Administrator, the Trustee, the
Certificate Administrator or the Tax Administrator, as applicable, may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee, the Certificate Administrator or the Tax Administrator, as
applicable, and conforming to the requirements of this Agreement.
(iii) None of the Trustee, the Certificate Administrator or the Tax
Administrator shall be liable for an error of judgment made in good faith
by a Responsible Officer or Responsible Officers of such entity unless it
shall be proved that such entity was negligent in ascertaining the
pertinent facts.
(iv) The Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by the Trustee, in good faith in accordance
with the direction of Holders of Certificates entitled to at least 25% (or,
as to any particular matter, any higher percentage as may be specifically
provided for hereunder) of the Voting Rights relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this Agreement.
(v) Neither the Certificate Administrator nor the Trustee shall be
required to take action with respect to, or be deemed to have notice or
knowledge of, any default or Event of Default (other than an Event of
Default under Section 7.01(a)(xi), (xii) or (xiii)) or a Master Servicer's
failure to deliver any monies, including P&I Advances, or to provide any
report, certificate or statement, to the Trustee, the Certificate
-338-
Administrator or the Tax Administrator, as applicable, when required
pursuant to this Agreement) unless a Responsible Officer of the Trustee or
the Certificate Administrator shall have received written notice or
otherwise have actual knowledge thereof. Otherwise, the Trustee and the
Certificate Administrator may conclusively assume that there is no such
default or Event of Default.
(vi) Subject to the other provisions of this Agreement, and without
limiting the generality of this Section 8.01, none of the Trustee, the
Certificate Administrator or the Tax Administrator shall have any duty,
except, in the case of the Trustee, as expressly provided in Section
2.01(c) or Section 2.01(e) or in its capacity as successor Master Servicer
or successor Special Servicer, (A) to cause any recording, filing, or
depositing of this Agreement or any agreement referred to herein or any
financing statement or continuation statement evidencing a security
interest, or to cause the maintenance of any such recording or filing or
depositing or to any re-recording, refiling or redepositing of any thereof,
(B) to cause the maintenance of any insurance, (C) to confirm or verify the
truth, accuracy or contents of any reports or certificates of either Master
Servicer, either Special Servicer, any actual or prospective or any
Certificateholder or Certificate Owner or any Rating Agency, delivered to
the Trustee, the Certificate Administrator or the Tax Administrator
pursuant to this Agreement reasonably believed by the Trustee, the
Certificate Administrator or the Tax Administrator, as applicable, to be
genuine and without error and to have been signed or presented by the
proper party or parties, (D) subject to Section 10.01(f), to see to the
payment or discharge of any tax levied against any part of the Trust Fund
other than from funds available in the Master Servicer's Collection
Accounts or the Distribution Account, and (E) to see to the payment of any
assessment or other governmental charge or any lien or encumbrance of any
kind owing with respect to, assessed or levied against, any part of the
Trust Fund other than from funds available in the Master Servicer's
Collection Account or Distribution Account (provided that such assessment,
charge, lien or encumbrance did not arise out of the Trustee's, the
Certificate Administrator's or the Tax Administrator's, as applicable,
willful misfeasance, bad faith or negligence).
(vii) For as long as the Person that serves as the Trustee, the
Certificate Administrator or the Tax Administrator hereunder also serves as
Custodian and/or Certificate Registrar, the protections, immunities and
indemnities afforded to that Person in its capacity as Trustee, Certificate
Administrator or Tax Administrator, as applicable, hereunder shall also be
-339-
afforded to such Person in its capacity as Custodian and/or Certificate
Registrar, as the case may be.
(viii) If the same Person is acting in two or more of the capacities of
Trustee, Certificate Administrator, Tax Administrator, Custodian or
Certificate Registrar, then any notices required to be given by such Person
in one such capacity shall be deemed to have been timely given to itself in
any other such capacity.
SECTION 8.02. Certain Matters Affecting the Trustee, the
Certificate Administrator and the Tax Administrator.
Except as otherwise provided in Section 8.01:
(i) the Trustee, the Certificate Administrator and the Tax
Administrator, may each rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document reasonably believed by it to be genuine and without error
and to have been signed or presented by the proper party or parties;
(ii) the Trustee, the Certificate Administrator and the Tax
Administrator may each consult with counsel and any written advice or
opinion of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance
therewith;
(iii) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, unless such
Certificateholders shall have provided to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby satisfactory to the Trustee, in its reasonable
discretion; none of the Trustee, the Fiscal Agent, the Certificate
Administrator or the Tax Administrator shall be required to expend or risk
its own funds (except to pay expenses that could reasonably be expected to
be incurred in connection with the performance of its normal duties) or
otherwise incur
-340-
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;
provided, however, that nothing contained herein shall relieve the Trustee
of the obligation, upon the occurrence of an Event of Default which has not
been waived or cured, to exercise such of the rights and powers vested in
it by this Agreement, and to use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs;
(iv) none of the Trustee, the Fiscal Agent appointed thereby, the
Certificate Administrator or the Tax Administrator shall be personally
liable for any action reasonably taken, suffered or omitted by it in good
faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
(v) prior to the occurrence of an Event of Default and after the waiver
or curing of all Events of Default which may have occurred, the Trustee
shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or other paper or
document, unless requested in writing to do so by Holders of Certificates
entitled to at least 25% of the Voting Rights; provided, however, that if
the payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Agreement,
the Trustee may require an indemnity satisfactory to the Trustee, in its
reasonable discretion, against such expense or liability as a condition to
taking any such action;
(vi) except as contemplated by Section 8.06 and, with respect to the
Trustee alone, Section 8.14, none of the Trustee, the Certificate
Administrator or the Tax Administrator shall be required to give any bond
or surety in respect of the execution of the trusts created hereby or the
powers granted hereunder;
(vii) the Trustee may execute any of the trusts or powers vested in it
by this Agreement, the Certificate Administrator and the Tax Administrator
may each perform any of their respective duties hereunder, either directly
or by or through the Custodian or other agents or attorneys-
-341-
in-fact, provided that the use of the Custodian or other agents or
attorneys-in-fact shall not be deemed to relieve the Trustee, the
Certificate Administrator or the Tax Administrator, as applicable, of any
of its duties and obligations hereunder (except as expressly set forth
herein);
(viii) none of the Trustee, the Fiscal Agent appointed thereby, the
Certificate Administrator or the Tax Administrator shall be responsible for
any act or omission of a Master Servicer or a Special Servicer (unless, in
the case of the Trustee, it is acting as a Master Servicer or a Special
Servicer, as the case may be) or of the Depositor; and
(ix) neither the Trustee nor the Certificate Registrar shall have any
obligation or duty to monitor, determine or inquire as to compliance with
any restriction on transfer imposed under Article V under this Agreement or
under applicable law with respect to any transfer of any Certificate or any
interest therein, other than to require delivery of the certification(s)
and/or Opinions of Counsel described in said Article applicable with
respect to changes in registration or record ownership of Certificates in
the Certificate Register and to examine the same to determine substantial
compliance with the express requirements of this Agreement; and the Trustee
and the Certificate Registrar shall have no liability for transfers,
including transfers made through the book-entry facilities of the
Depository or between or among Depository Participants or beneficial owners
of the Certificates, made in violation of applicable restrictions except
for its failure to perform its express duties in connection with changes in
registration or record ownership in the Certificate Register.
SECTION 8.03. Trustee, the Fiscal Agent, the Certificate
Administrator and the Tax Administrator not Liable for
Validity or Sufficiency of Certificates or Mortgage
Loans.
The recitals contained herein and in the Certificates (other than the
statements attributed to, and the representations and warranties of, the
Trustee, the Fiscal Agent, the Certificate Administrator and/or the Tax
Administrator in Article II, and the signature of the Certificate Registrar set
forth on each outstanding Certificate) shall not be taken as the statements of
the Trustee, the Fiscal Agent, the Certificate Administrator or the Tax
Administrator, and none of the Trustee, the Fiscal Agent, the Certificate
Administrator or the Tax Administrator assumes any responsibility for their
correctness. None of the Trustee, the Fiscal Agent, the Certificate
Administrator or the Tax Administrator
-342-
makes any representation as to the validity or sufficiency of this Agreement
(except as regards the enforceability of this Agreement against it) or of any
Certificate (other than as to the signature of the Trustee set forth thereon) or
of any Mortgage Loan or related document. None of the Trustee, the Fiscal Agent,
the Certificate Administrator or the Tax Administrator shall be accountable for
the use or application by the Depositor of any of the Certificates issued to it
or of the proceeds of such Certificates, or for the use or application of any
funds paid to the Depositor in respect of the assignment of the Mortgage Loans
to the Trust, or any funds (other than with respect to any funds held by the
Certificate Administrator) deposited in or withdrawn from the Collection Account
or any other account by or on behalf of the Depositor, a Master Servicer or a
Special Servicer (unless, in the case of the Trustee, it is acting in such
capacity). None of the Trustee, the Fiscal Agent, the Certificate Administrator
or the Tax Administrator shall be responsible for the legality or validity of
this Agreement (other than insofar as it relates to the obligations of the
Trustee, such Fiscal Agent, the Certificate Administrator or the Tax
Administrator, as the case may be, hereunder) or the validity, priority,
perfection or sufficiency of any security, lien or security interest granted to
it hereunder or the filing of any financing statements or continuation
statements, except to the extent set forth in Section 2.01(c) and Section
2.01(e) or to the extent the Trustee is acting as a Master Servicer or a Special
Servicer and such Master Servicer or such Special Servicer, as the case may be,
would be so responsible hereunder. None of the Trustee, the Certificate
Administrator or the Tax Administrator shall be required to record this
Agreement.
SECTION 8.04. Trustee, Fiscal Agent, Certificate Administrator
and Tax Administrator May Own Certificates.
The Trustee (in its individual or any other capacity), the Fiscal
Agent, the Certificate Administrator or the Tax Administrator or any of their
respective Affiliates may become the owner or pledgee of Certificates with
(except as otherwise provided in the definition of "Certificateholder") the same
rights it would have if it were not the Trustee, such Fiscal Agent, the
Certificate Administrator or the Tax Administrator or one of their Affiliates,
as the case may be.
-343-
SECTION 8.05. Fees and Expenses of the Trustee, the Certificate
Administrator and the Tax Administrator; Indemnification
of and by the Trustee, the Certificate Administrator,
the Tax Administrator and Fiscal Agent.
(a) On each Distribution Date, the Certificate Administrator shall
withdraw from the Distribution Account, out of general collections on the
Mortgage Loans and REO Properties on deposit therein, prior to any distributions
to be made therefrom to Certificateholders on such date, and pay to the Trustee
all Trustee Fees and to the Servicer Report Administrator all Servicer Report
Administrator Fees, in each case earned in respect of the Mortgage Loans and any
successor REO Mortgage Loans through the end of the then most recently ended
calendar month as compensation for all services rendered by the Trustee and the
Certificate Administrator, respectively, hereunder. As to each Mortgage Loan and
REO Mortgage Loan in the Mortgage Pool, the Trustee Fee and the Servicer Report
Administrator Fee shall accrue during each calendar month, commencing with
October 2002, at the Trustee Fee Rate and the Servicer Report Administrator Fee
Rate, respectively, on a principal amount equal to the Stated Principal Balance
of such Mortgage Loan or REO Mortgage Loan, as the case may be, immediately
following the Distribution Date in such calendar month (or, in the case of
October 2002, on a principal amount equal to the Cut-off Date Principal Balance
of the particular Mortgage Loan). The Trustee Fee and the Servicer Report
Administrator Fee accrued during each calendar month shall be payable in the
next succeeding calendar month. With respect to each Mortgage Loan and REO
Mortgage Loan in the Mortgage Pool, the Trustee Fee and the Servicer Report
Administrator Fee shall be calculated on the same Interest Accrual Basis as is
applicable to the accrual or deemed accrual of interest on such Mortgage Loan or
REO Mortgage Loan, as the case may be. The Trustee Fee (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) and the Certificate Administrator Fee shall constitute the sole
compensation of the Trustee and the Certificate Administrator, respectively, for
such services to be rendered by it. The Trustee shall be responsible for the
payment of the Certificate Administrator Fee. The Certificate Administrator
shall be responsible for the fees of the Tax Administrator.
(b) The Trustee, the Certificate Administrator, the Fiscal Agent and
the Tax Administrator and any of their respective directors, officers,
employees, agents or affiliates are entitled to be indemnified and held harmless
out of the Master Servicer's Collection Accounts and/or the Distribution
Account, as and to the extent provided in Section 3.05, for and against any
loss, liability, claim or expense (including costs and expenses of litigation,
and of investigation,
-344-
reasonable counsel fees, damages, judgments and amounts paid in settlement)
arising out of, or incurred in connection with, this Agreement, the
Certificates, the Mortgage Loans (unless, in the case of the Trustee, it incurs
any such expense or liability in the capacity of successor Master Servicer or
Special Servicer (as the case may be), in which case such expense or liability
will be reimbursable thereto in the same manner as it would be for any other
Master Servicer or Special Servicer, as the case may be) or any act or omission
of the Trustee, the Certificate Administrator or the Tax Administrator relating
to the exercise and performance of any of the rights and duties of the Trustee,
the Certificate Administrator or the Tax Administrator hereunder; provided,
however, that none of the Trustee, the Certificate Administrator or the Tax
Administrator shall be entitled to indemnification pursuant to this Section
8.05(b) for (1) allocable overhead, such as costs for office space, office
equipment, supplies and related expenses, employee salaries and related expenses
and similar internal costs and expenses, (2) any cost or expense that does not
constitute an "unanticipated expense" within the meaning of Treasury regulation
section 1.860G-1(b)(3)(ii), (3) any expense or liability specifically required
to be borne thereby pursuant to the terms hereof or (4) any loss, liability,
claim or expense incurred by reason of any breach on the part of the Trustee,
the Fiscal Agent, the Certificate Administrator or the Tax Administrator of any
of their respective representations, warranties or covenants contained herein or
any willful misconduct, bad faith, fraud or negligence in the performance of, or
reckless disregard of, the Trustee's, the Fiscal Agent's, the Certificate
Administrator's or the Tax Administrator's obligations and duties hereunder.
(c) Each of the Master Servicers and the Special Servicers each shall
indemnify the Trustee, the Certificate Administrator, the Tax Administrator and
the Fiscal Agent for and hold each of them harmless against any loss, liability,
claim or expense that is a result of such Master Servicer's or such Special
Servicer's, as the case may be, negligent acts or omissions in connection with
this Agreement, including the negligent use by such Master Servicer or such
Special Servicer, as the case may be, of any powers of attorney delivered to it
by the Trustee pursuant to the provisions hereof and the Mortgage Loans serviced
by such Master Servicer or such Special Servicer, as the case may be; provided,
however, that, if the Trustee, the Certificate Administrator or the Tax
Administrator has been reimbursed for such loss, liability, claim or expense
pursuant to Section 8.05(b), or the Fiscal Agent has been reimbursed for such
loss, liability, claim or expense pursuant to Section 8.13, then the indemnity
in favor of such Person provided for in this Section 8.05(c) with respect to
such loss, liability, claim or expense shall be for the benefit of the Trust.
-345-
(d) Each of the Trustee, the Certificate Administrator, the Tax
Administrator and the Fiscal Agent shall indemnify each of the Master Servicers
and the Special Servicers for and hold each of them harmless against any loss,
liability, claim or expense that is a result of the Trustee's, the Certificate
Administrator's, the Tax Administrator's or such Fiscal Agent's, as the case may
be, negligent acts or omissions in connection with this Agreement; provided,
however, that if a Master Servicer or Special Servicer has been reimbursed for
such loss, liability, claim or expense pursuant to Section 6.03, then the
indemnity in favor of such Person otherwise provided for in this Section 8.05(d)
with respect to such loss, liability, claim or expense shall be for the benefit
of the Trust.
(e) This Section 8.05 shall survive the termination of this Agreement
or the resignation or removal of the Trustee, the Certificate Administrator, the
Tax Administrator, the Fiscal Agent, either Master Servicer or either Special
Servicer as regards rights and obligations prior to such termination,
resignation or removal.
SECTION 8.06. Eligibility Requirements for Trustee, Certificate
Administrator and Tax Administrator.
The Trustee, the Certificate Administrator and the Tax Administrator
hereunder each shall at all times be a corporation, bank, trust company or
association that: (i) is organized and doing business under the laws of the
United States of America or any State thereof or the District of Columbia and,
in the case of the Trustee, authorized under such laws to exercise trust powers;
(ii) has a combined capital and surplus of at least $50,000,000; and (iii) is
subject to supervision or examination by federal or state authority. If such
corporation, bank, trust company or association publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such corporation, bank, trust company or
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In addition: (i) the
Trustee shall at all times meet the requirements of Section 26(a)(1) of the
Investment Company Act; and (ii) neither the Certificate Administrator nor the
Tax Administrator may have any affiliations or act in any other capacity with
respect to the transactions contemplated hereby that would cause the Underwriter
Exemption to be unavailable with respect to any Class of Certificates as to
which it would otherwise be available. Furthermore, the Trustee, the Certificate
Administrator and the Tax Administrator shall at all times maintain a long-term
unsecured debt rating of no less than "Aa3" from ▇▇▇▇▇'▇ and "AA-" from Fitch
(or, in the case of any Rating Agency, such lower
-346-
rating as will not result in an Adverse Rating Event with respect to any Class
of Rated Certificates (as confirmed in writing to the Trustee, the Certificate
Administrator, the Tax Administrator and the Depositor by such Rating Agency));
provided that the Trustee shall not cease to be eligible to serve as such based
on a failure to satisfy such rating requirements so long as either: (i) the
Trustee maintains a long-term unsecured debt rating of no less than "Baa2" from
▇▇▇▇▇'▇ and "BBB" from Fitch (or, in the case of any Rating Agency, such lower
rating as will not result in an Adverse Rating Event with respect to any Class
of Rated Certificates (as confirmed in writing to the Trustee and the Depositor
by such Rating Agency)) and a Fiscal Agent meeting the requirements of Section
8.13 has been appointed by the Trustee and is then currently serving in such
capacity; or (ii) the Trustee maintains a long-term unsecured debt rating of no
less than "A1" from ▇▇▇▇▇'▇ and "A" from Fitch (or, in the case of any Rating
Agency, such lower rating as will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee and the Depositor by such Rating Agency)) and an Advance Security
Arrangement meeting the requirements of Section 8.14 has been established by the
Trustee and is then currently being maintained. In case at any time the Trustee,
the Certificate Administrator or the Tax Administrator shall cease to be
eligible in accordance with the provisions of this Section 8.06, the Trustee,
the Certificate Administrator or the Tax Administrator, as applicable, shall
resign immediately in the manner and with the effect specified in Section 8.07.
The corporation, bank, trust company or association serving as Trustee may have
normal banking and trust relationships with the Depositor, the Pooled Mortgage
Loan Sellers, the Master Servicers, the Special Servicers and their respective
Affiliates; provided, however, that none of (i) the Depositor, (ii) any Person
involved in the organization or operation of the Depositor or the Trust, (iii)
any Master Servicer or Special Servicer (except during any period when the
Trustee has assumed the duties of a Master Servicer or Special Servicer (as the
case may be) pursuant to Section 7.02, (iv) any Pooled Mortgage Loan Seller or
(v) any Affiliate of any of them, may be the Trustee hereunder.
SECTION 8.07. Resignation and Removal of Trustee, Certificate
Administrator and Tax Administrator.
(a) The Trustee, the Certificate Administrator and the Tax
Administrator each may at any time resign and be discharged from their
respective obligations created hereunder by giving written notice thereof to the
other such parties, the Depositor, the Master Servicers, the Special Servicers,
the Rating Agencies and all the Certificateholders. Upon receiving such notice
of resignation, the Depositor shall promptly appoint a successor trustee,
certificate administrator or tax administrator, as the case may be, meeting the
eligibility requirements of Section 8.06 by written instrument, in duplicate,
which instrument shall be delivered to the resigning Trustee, Certificate
Administrator or Tax Administrator, as the case may be, and to the successor
trustee, certificate
-347-
administrator or tax administrator, as the case may be. A copy of such
instrument shall be delivered to other parties hereto and to the
Certificateholders by the Depositor. If no successor trustee, certificate
administrator or tax administrator, as the case may be, shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee, Certificate Administrator or Tax
Administrator, as the case may be, may petition any court of competent
jurisdiction for the appointment of a successor trustee, certificate
administrator or tax administrator, as the case may be.
(b) If at any time the Trustee, the Certificate Administrator or the
Tax Administrator shall cease to be eligible in accordance with the provisions
of Section 8.06 and shall fail to resign after written request therefor by the
Depositor or a Master Servicer, or if at any time the Trustee, the Certificate
Administrator or the Tax Administrator shall become incapable of acting, or
shall be adjudged bankrupt or insolvent, or a receiver of the Trustee, the
Certificate Administrator or the Tax Administrator or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee,
the Certificate Administrator or the Tax Administrator or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or if
the Trustee's, Certificate Administrator's or Tax Administrator's continuing to
act in such capacity would (as confirmed in writing to the Depositor by any
Rating Agency) result in an Adverse Rating Event with respect to any Class of
Rated Certificates, then the Depositor may remove the Trustee, the Certificate
Administrator or the Tax Administrator, as the case may be, and appoint a
successor trustee, certificate administrator or tax administrator, as the case
may be, by written instrument, in duplicate, which instrument shall be delivered
to the Trustee, the Certificate Administrator or the Tax Administrator, as the
case may be, so removed and to the successor trustee, certificate administrator
or tax administrator, as the case may be. A copy of such instrument shall be
delivered to the other parties hereto and to the Certificateholders by the
Depositor.
(c) The Holders of Certificates entitled to more than 50% of the Voting
Rights may at any time remove the Trustee, Certificate Administrator or Tax
Administrator and appoint a successor trustee, certificate administrator or tax
administrator, as the case may be, by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which instruments shall be delivered to the Depositor, one
complete set to the Trustee, Certificate Administrator or Tax Administrator, as
the
-348-
case may be, so removed, and one complete set to the successor so appointed. All
expenses incurred by the Trustee in connection with its transfer of the
Mortgages Files to a successor trustee following the removal of the Trustee
without cause pursuant to this Section 8.07(c), shall be reimbursed to the
removed Trustee within 30 days of demand therefor, such reimbursement to be made
by the Certificateholders that terminated the Trustee. A copy of such instrument
shall be delivered to the other parties hereto and to the remaining
Certificateholders by the successor so appointed.
(d) Any resignation or removal of the Trustee, the Certificate
Administrator or the Tax Administrator and appointment of a successor trustee,
certificate administrator or tax administrator, as the case may be, pursuant to
any of the provisions of this Section 8.07 shall not become effective until (i)
acceptance of appointment by the successor trustee, certificate administrator or
tax administrator, as the case may be, as provided in Section 8.08 and (ii) if
none of the successor trustee, certificate administrator or tax administrator,
as the case may be, has a long-term unsecured debt rating of at least "Aa3" from
▇▇▇▇▇'▇ and "AA-" from Fitch, the Trustee and the Depositor have received
written confirmation from each Rating Agency that has not so assigned such a
rating, to the effect that the appointment of such successor trustee,
certificate administrator or tax administrator, as the case may be, shall not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates.
SECTION 8.08. Successor Trustee, Certificate Administrator and
Tax Administrator.
(a) Any successor trustee, certificate administrator or tax
administrator appointed as provided in Section 8.07 shall execute, acknowledge
and deliver to the Depositor, each Master Servicer, each Special Servicer and
its predecessor trustee, certificate administrator or tax administrator, as the
case may be, an instrument accepting such appointment hereunder, and thereupon
the resignation or removal of the predecessor trustee, certificate administrator
or tax administrator, as the case may be, shall become effective and such
successor trustee, certificate administrator or tax administrator, as the case
may be, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as trustee, certificate
administrator or tax administrator herein. If the Trustee is being replaced, the
predecessor trustee shall deliver to the successor trustee all Mortgage Files
and related documents and statements held by it hereunder (other than any
Mortgage Files at the time held on its behalf by a Custodian, which Custodian
shall become the agent of the successor trustee), and the Depositor, each Master
Servicer, each Special Servicer and the predecessor
-349-
trustee shall execute and deliver such instruments and do such other things as
may reasonably be required to more fully and certainly vest and confirm in the
successor trustee all such rights, powers, duties and obligations, and to enable
the successor trustee to perform its obligations hereunder.
(b) No successor trustee, certificate administrator or tax
administrator shall accept appointment as provided in this Section 8.08 unless
at the time of such acceptance such successor trustee, certificate administrator
or tax administrator, as the case may be, shall be eligible under the provisions
of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee, certificate
administrator or tax administrator as provided in this Section 8.08, such
successor trustee, certificate administrator or tax administrator, as the case
may be, shall mail notice of the succession of such trustee, certificate
administrator or tax administrator hereunder to the Depositor, the
Certificateholders and the other parties hereto.
SECTION 8.09. Merger or Consolidation of Trustee, Certificate
Administrator or Tax Administrator.
Any entity into which the Trustee, Certificate Administrator or Tax
Administrator may be merged or converted or with which it may be consolidated or
any entity resulting from any merger, conversion or consolidation to which the
Trustee, Certificate Administrator or Tax Administrator shall be a party, or any
entity succeeding to the corporate trust business of the Trustee, Certificate
Administrator or Tax Administrator, shall be the successor of the Trustee,
Certificate Administrator or Tax Administrator, as the case may be, hereunder,
provided such entity shall be eligible under the provisions of Section 8.06,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
applicable Master Servicer and the Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
-350-
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in case an Event of Default in
respect of the applicable Master Servicer shall have occurred and be continuing,
the Trustee alone shall have the power to make such appointment. No co-trustee
or separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 8.06, and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
when acting as Master Servicer, Special Servicer, Certificate Administrator or
Tax Administrator hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed by such
separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall
-351-
die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may, at its own expense, appoint any Person with
appropriate experience as a document custodian to act as Custodian hereunder;
provided that, in the absence of any other Person appointed in accordance
herewith acting as Custodian, the Trustee agrees to act in such capacity in
accordance with the terms hereof. The appointment of a Custodian shall not
relieve the Trustee from such entity's obligations hereunder, and the Trustee
shall remain responsible for all acts and omissions of the Custodian. The
Custodian shall be subject to the same standards of care, limitations on
liability and rights to indemnity as the Trustee, and the provisions of Sections
8.01, 8.02, 8.03, 8.04, 8.05(b), 8.05(c), 8.05(d) and 8.05(e) shall apply to the
Custodian to the same extent that they apply to the Trustee. Any Custodian
appointed in accordance with this Section 8.11 may at any time resign by giving
at least 30 days' advance written notice of resignation to the Certificate
Administrator, the Trustee, each Master Servicer, each Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any Custodian
appointed in accordance with this Section 8.11 by giving written notice of
termination to such Custodian, with a copy to the Certificate Administrator,
each Master Servicer, each Special Servicer and the Depositor. Each Custodian
shall comply with the requirements for Trustees set forth in Section 8.06, shall
not be the Depositor, any Pooled Mortgage Loan Seller or any Affiliate of the
Depositor or any Pooled Mortgage Loan Seller, and shall have in place a fidelity
bond and errors and omissions policy, each in such form and amount as is
customarily required of custodians acting on behalf of ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇
Mae.
SECTION 8.12. Access to Certain Information.
(a) The Trustee and the Custodian shall each afford to the Depositor,
the Underwriters, each Master Servicer, each Special Servicer, the Controlling
Class Representative and each Rating Agency and to the OTS, the FDIC and any
other banking or insurance regulatory authority that may exercise authority over
any Certificateholder or Certificate Owner, access to any
-352-
documentation regarding the Mortgage Loans or the other assets of the Trust Fund
that are in its possession or within its control. Such access shall be afforded
without charge but only upon reasonable prior written request and during normal
business hours at the offices of the Trustee or the Custodian, as the case may
be, designated by it.
(b) The Trustee (or, in the case of the items referenced in clause (ix)
below, the Custodian, or in the case of the items referenced in clauses (i),
(ii), (iii) and (viii), the Certificate Administrator, or in the case of the
items referenced in clause (xi), both the Certificate Administrator and the
Trustee) shall maintain at its offices or the offices of a Custodian and, upon
reasonable prior written request and during normal business hours, shall make
available, or cause to be made available, for review by the Depositor, the
Rating Agencies, the Certificate Administrator, the Custodian, the Controlling
Class Representative and, subject to the succeeding paragraph, any
Certificateholder, Certificate Owner or Person identified to the Certificate
Administrator (or, in the case of the items referenced in clause (ix) below, the
Custodian, or in the case of the items referenced in clauses (i), (ii), (iii)
and (viii), the Certificate Administrator, or in the case of the items
referenced in clause (xi), both the Certificate Administrator and the Trustee)
as a prospective Transferee of a Certificate or an interest therein, originals
and/or copies of the following items (to the extent such items were prepared by
or delivered to the Trustee (or, in the case of the items referenced in clause
(ix) below, the Custodian, or in the case of the items referenced in clauses
(i), (ii), (iii) and (viii), the Certificate Administrator, or in the case of
the items referenced in clause (xi), both the Certificate Administrator and the
Trustee): (i) the Prospectus, the Private Placement Memorandum and any other
disclosure document relating to the Certificates, in the form most recently
provided to the Certificate Administrator by the Depositor or by any Person
designated by the Depositor; (ii) this Agreement, each Sub-Servicing Agreement
delivered to the Certificate Administrator since the Closing Date and any
amendments and exhibits hereto or thereto; (iii) all Certificate Administrator
Reports and any files and reports comprising the CMSA Investor Reporting Package
actually delivered or otherwise made available to Certificateholders pursuant to
Section 4.02(a) since the Closing Date; (iv) all Annual Performance
Certifications delivered by the Master Servicers and the Special Servicers to
the Certificate Administrator and the Trustee since the Closing Date; (v) all
Annual Accountants' Reports caused to be delivered by the Master Servicers and
the Special Servicers, respectively, to the Certificate Administrator and the
Trustee since the Closing Date; (vi) the most recent inspection report prepared
by a Master Servicer or a Special Servicer and delivered to the Trustee in
respect of each Mortgaged Property pursuant to Section 3.12(a); (vii) any and
all notices and reports
-353-
delivered to the Trustee with respect to any Mortgaged Property as to which the
environmental testing contemplated by Section 3.09(c) revealed that neither of
the conditions set forth in clauses (i) and (ii) of the first sentence thereof
was satisfied; (viii) all files and reports comprising the CMSA Investor
Reporting Package delivered to the Certificate Administrator since the Closing
Date pursuant to Section 4.02(b); (ix) each of the Mortgage Files, including any
and all modifications, waivers and amendments of the terms of a Mortgage Loan
entered into or consented to by the applicable Special Servicer and delivered to
the Trustee or any Custodian pursuant to Section 3.20; (x) any and all Officer's
Certificates and other evidence delivered to or by the Trustee to support its, a
Master Servicer's or the Fiscal Agent's, as the case may be, determination that
any Advance was (or, if made, would be) a Nonrecoverable Advance; and (xi) any
other information that may be necessary to satisfy the requirements of
subsection (d)(4)(i) of Rule 144A under the Securities Act. The Certificate
Administrator, the Trustee or the Custodian, as applicable, shall provide, or
cause to be provided, copies of any and all of the foregoing items upon request
of any of the parties set forth in the previous sentence; however, except in the
case of the Rating Agencies and the Controlling Class Representative, the
Certificate Administrator or the Custodian shall be permitted to require payment
of a sum sufficient to cover the reasonable costs and expenses of providing such
copies.
In connection with providing, or causing to be provided, access to or
copies of the items described in the preceding paragraph pursuant to this
Section 8.12(b), the Certificate Administrator, the Trustee or the Custodian, as
the case may be, shall require: (a) in the case of Certificateholders and
Certificate Owners, a written confirmation executed by the requesting Person
substantially in the form of Exhibit J-1 hereto (or such other form as may be
reasonably acceptable to the Certificate Administrator, the Trustee or the
Custodian, as the case may be) generally to the effect that such Person is a
Holder or Certificate Owner of Certificates and, subject to the last sentence of
this paragraph, will keep such information confidential (except that such
Certificateholder or Certificate Owner may provide such information to its
auditors, legal counsel and regulators and to any other Person that holds or is
contemplating the purchase of any Certificate or interest therein (provided that
such other Person confirms in writing such ownership interest or prospective
ownership interest and agrees to keep such information confidential)); and (b)
in the case of a prospective purchaser of a Certificate or an interest therein,
confirmation executed by the requesting Person substantially in the form of
Exhibit J-2 hereto (or such other form as may be reasonably acceptable to the
Certificate Administrator, the Trustee or the Custodian, as the case may be)
generally to the effect that such Person is a prospective purchaser of a
Certificate or an interest therein, is requesting the
-354-
information for use in evaluating a possible investment in Certificates and,
subject to the last sentence of this paragraph, will otherwise keep such
information confidential. Notwithstanding the foregoing, no Certificateholder,
Certificate Owner or prospective Certificateholder or Certificate Owner need
keep confidential any information received from the Certificate Administrator,
the Trustee or the Custodian, as the case may be, pursuant to this Section
8.12(b) that has previously been filed with the Commission, and the Certificate
Administrator, the Trustee or the Custodian, as the case may be, shall not
require either of the certifications contemplated by the preceding sentence in
connection with providing any information pursuant to this Section 8.12(b) that
has previously been filed with the Commission.
(c) None of the Trustee, the Custodian or the Certificate Administrator
shall be liable for providing or disseminating information in accordance with
the terms of this Agreement.
SECTION 8.13. Appointment of Fiscal Agent.
(a) Insofar as the Trustee would not otherwise satisfy the rating
requirements of Section 8.06, the Trustee may appoint, at the Trustee's own
expense, a Fiscal Agent for purposes of making Advances hereunder that are
otherwise required to be made by the Trustee. Any Fiscal Agent shall at all
times maintain a long-term unsecured debt rating of no less than "Aa3" from
▇▇▇▇▇'▇ and "AA-" from Fitch (or, in the case of any Rating Agency, such lower
rating as will not result in an Adverse Rating Event with respect to any Class
of Rated Certificates (as confirmed in writing to the Trustee and the Depositor
by such Rating Agency)). Any Person so appointed by the Trustee pursuant to this
Section 8.13(a) shall become the Fiscal Agent on the date as of which the
Trustee and the Depositor have received: (i) if the long-term unsecured debt of
the designated Person is not rated as least "Aa3" from ▇▇▇▇▇'▇ and "AA-" from
Fitch, written confirmation from each Rating Agency that the appointment of such
designated Person will not result in an Adverse Rating Event with respect to any
Class of Rated Certificates; (ii) a written agreement whereby the designated
Person is appointed as, and agrees to assume and perform the duties of, Fiscal
Agent hereunder, executed by such designated Person and the Trustee (such
agreement, the "Fiscal Agent Agreement"); and (iii) an Opinion of Counsel (which
shall be paid for by the designated Person or the Trustee) substantially to the
effect that (A) the appointment of the designated Person to serve as Fiscal
Agent is in compliance with this Section 8.13, (B) the designated Person is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (C) the related Fiscal Agent Agreement has
been duly authorized, executed and delivered by the designated Person and (D)
upon
-355-
execution and delivery of the related Fiscal Agent Agreement, the designated
Person shall be bound by the terms of this Agreement and, subject to customary
bankruptcy and insolvency exceptions and customary equity exceptions, that this
Agreement shall be enforceable against the designated Person in accordance with
its terms. Any Person that acts as Fiscal Agent shall, for so long as it so
acts, be deemed a party to this Agreement for all purposes hereof. Pursuant to
the related Fiscal Agent Agreement, each Fiscal Agent, if any, shall make
representations and warranties with respect to itself that are comparable to
those made by the Trustee pursuant to Section 2.07. Notwithstanding anything
contained in this Agreement to the contrary, any Fiscal Agent shall be entitled
to all limitations on liability, rights of reimbursement and indemnities to
which the Trustee is entitled hereunder (including pursuant to Sections 8.05(b)
and 8.05(c)) as if it were the Trustee.
(b) To the extent that the Trustee is required, pursuant to the terms
of this Agreement, to make any Advance, whether as successor Master Servicer or
otherwise, and has failed to do so in accordance with the terms hereof, the
Fiscal Agent (if any) shall make such Advance when and as required by the terms
of this Agreement on behalf the Trustee as if such Fiscal Agent were the Trustee
hereunder. To the extent that the Fiscal Agent (if any) makes an Advance
pursuant to this Section 8.13 or otherwise pursuant to this Agreement, the
obligations of the Trustee under this Agreement in respect of such Advance shall
be satisfied.
(c) Notwithstanding anything contained in this Agreement to the
contrary, any Fiscal Agent shall be entitled to all limitations on liability,
rights of reimbursement and indemnities to which the Trustee is entitled
hereunder (including pursuant to Sections 8.05(b) and 8.05(c)) as if it were the
Trustee, except that all fees and expenses of any Fiscal Agent (other than
interest owed to such Fiscal Agent in respect of unreimbursed Advances) incurred
by such Fiscal Agent in connection with the transactions contemplated by this
Agreement shall be borne by the Trustee, and neither the Trustee nor such Fiscal
Agent shall be entitled to reimbursement therefor from any of the Trust, the
Depositor, a Master Servicer or a Special Servicer.
(d) The obligations of any Fiscal Agent set forth in this Section 8.13
or otherwise pursuant to this Agreement shall exist only for so long as the
Trustee that appointed it shall act as Trustee hereunder. Any Fiscal Agent may
resign or be removed by the Trustee only if and when the existence of such
Fiscal Agent is no longer necessary for such Trustee to satisfy the eligibility
requirements of Section 8.06; provided that any Fiscal Agent shall be deemed to
have resigned at such time as the Trustee that appointed it resigns or is
removed
-356-
as Trustee hereunder (in which case the responsibility for appointing a
successor Fiscal Agent in accordance with this Section 8.13(a) shall belong to
the successor Trustee insofar as such appointment is necessary for such
successor Trustee to satisfy the eligibility requirements of Section 8.06).
(e) The Trustee shall promptly notify the other parties hereto and the
Certificateholders in writing of the appointment, resignation or removal of any
Fiscal Agent.
SECTION 8.14. Advance Security Arrangement.
Insofar as the Trustee would not otherwise satisfy the rating
requirements of Section 8.06, the Trustee may, at is own expense with the
approval of the Depositor, arrange for the pledging of collateral, the
establishment of a reserve fund or the delivery of a letter of credit, surety
bond or other comparable instrument or for any other security or financial
arrangement (any or all of the foregoing, individually and collectively, an
"Advance Security Arrangement") for purposes of supporting its back-up advancing
obligations hereunder; provided that any Advance Security Arrangement shall be
in such form and amount, and shall be maintained in such manner, as (i) would
permit the Trustee to act in such capacity without an Adverse Rating Event in
respect of any Class of Rated Certificates (as confirmed in writing to the
Trustee and the Depositor by each Rating Agency) and (ii) would not result in an
Adverse REMIC Event or an Adverse Grantor-Trust Event (as evidenced by an
Opinion of Counsel addressed and delivered to the Trustee, the Depositor and the
Tax Administrator). The Trustee may terminate any Advance Security Arrangement
established by it only if and when (i) the existence of such Advance Security
Arrangement is no longer necessary for the Trustee to satisfy the eligibility
requirements of Section 8.06 or (ii) when such Trustee resigns or is removed as
Trustee hereunder.
SECTION 8.15. Exchange Act Reporting.
(a) The Master Servicers, the Special Servicers, the Certificate
Administrator, the Trustee and the Fiscal Agent shall reasonably cooperate with
the Depositor in connection with the Trust's satisfaction of its reporting
requirements under the Exchange Act. Within 15 days after each Distribution
Date, the Certificate Administrator shall prepare, execute and file on behalf of
the Trust any Forms 8-K customary for similar securities as required by the
Exchange Act and the rules and regulations of the Commission thereunder;
provided that the Depositor shall file the initial Form 8-K in connection with
the issuance of the Certificates. The Certificate Administrator shall file each
Form 8-K with a copy
-357-
of the related Monthly Certificate Administrator Report attached thereto. If the
Depositor directs that any other attachments are to be filed with any Form 8-K,
such attachments shall be delivered to the Certificate Administrator in
▇▇▇▇▇-compatible form or as otherwise agreed upon by the Certificate
Administrator and the Depositor, at the Depositor's expense, and any necessary
conversion to ▇▇▇▇▇-compatible format will be at the Depositor's expense. Prior
to March 30th of each year (or such earlier date as may be required by the
Exchange Act and the rules and regulations of the Commission), the Certificate
Administrator shall prepare and file an Annual Report on Form 10-K (a "Form
10-K"), in substance as required by applicable law and applicable
interpretations thereof of the staff of the Commission. Such Form 10-K shall
include as exhibits each annual statement of compliance described under Section
3.13 and each accountant's report described under Section 3.23, in each case to
the extent they have been timely delivered to the Certificate Administrator. If
they are not so timely delivered, the Certificate Administrator shall file an
amended Form 10-K including such documents as exhibits reasonably promptly after
they are delivered to the Certificate Administrator. Each Form 10-K shall also
include any ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification required to be included therewith, as
described in paragraph (b) of this Section. The Certificate Administrator shall
have no liability with respect to any failure to properly prepare or file such
periodic reports resulting from the Certificate Administrator's inability or
failure to obtain any information not resulting from its own negligence, bad
faith or willful misconduct. Prior to January 30 of the first year in which the
Certificate Administrator is able to do so under applicable law, the Certificate
Administrator shall file a Form 15 relating to the automatic suspension of
reporting in respect of the Trust under the Exchange Act.
(b) The Form 10-K shall include any certification (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification") required to be included therewith pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act of 2002, and the rules and regulations of the Commission promulgated
thereunder (including any interpretations thereof by the Commission's staff).
Each Master Servicer, each Special Servicer and the Certificate Administrator
(each, a "Performing Party") shall provide to the Person who signs the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (the "Certifying Person") a certification (each, a
"Performance Certification"), in form and substance reasonably satisfactory to
the Depositor and the Performing Party, upon which the Certifying Person, the
entity for which the Certifying Person acts as an officer (if the Certifying
Person is an individual), and such entity's officers, directors and Affiliates
(collectively with the Certifying Person, "Certification Parties") can rely,
relating to the accuracy and completeness of the information and reports
provided under this Agreement by such Performing Party; provided, however, that
-358-
the certification required from the General Special Servicer shall contain the
following information:
(i) a statement acknowledging that the officer of the General Special
Servicer signing such certification has reviewed the information provided
by it for inclusion in the Form 10-K to be covered by the subject
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification;
(ii) a statement, based on the knowledge of the officer of the General
Special Servicer that is signing such certification, that the information
provided by it to be covered by such ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification solely
relating to actions of the General Special Servicer and/or payments and
other collections on the Specially Serviced Mortgage Loans and REO
Properties for which it is the applicable Special Servicer, taken as a
whole, does not contain any untrue statement of material fact or omit to
state a material fact necessary to make the statements made, not misleading
as of the last day of the period covered by the subject Form 10-K;
(iii) a statement, based on the knowledge of the officer of the General
Special Servicer that is signing such certification, that the information
provided by it and to be covered by such ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification
relating solely to actions of the General Special Servicer and/or payments
and other collections on the Specially Serviced Mortgage Loans and REO
Properties for which it is the applicable Special Servicer, includes all
information of such type available to the General Special Servicer and
required to be included in the Certificate Administrator Reports for the
relevant period covered by the subject Form 10-K; and
(iv) a statement that the officer of the General Special Servicer that
is signing such certification has disclosed to the Depositor's certified
public accountants and the accountants that are to deliver the Annual
Accountants' Report in respect of the General Special Servicer with respect
to the relevant period covered by the subject Form 10-K all significant
deficiencies relating to the Special Servicer's compliance with the minimum
servicing standards in accordance with a review conducted in compliance
with the Uniform Single Attestation Program for Mortgage Bankers or similar
standards as set forth in this Agreement.
Notwithstanding the foregoing, nothing in this paragraph shall require
any Performing Party to (i) certify or verify the accurateness or completeness
of any information provided to such Performing Party by third
-359-
parties, (ii) to certify information other than to such Performing Party's
knowledge or (iii) with respect to completeness of information and reports, to
certify anything other than that all fields of information called for in written
reports prepared by such Performing Party have been completed except as they
have been left blank on their face.
In addition, if the Performing Party is a Master Servicer or Special
Servicer, such Performing Party shall execute a reasonable reliance certificate
to enable the Certification Parties to rely upon the Annual Compliance
Certificate provided pursuant to Section 3.13, and shall include a certification
that such Annual Compliance Certificate discloses any deficiencies or defaults
described to the certified public accountants of such Performing Party to enable
such accountants to render the certificate provided for in Section 3.14. If
directed by the Depositor, such Performing Party shall provide an identical
certification to Depositor's certified public accountants that such Performing
Party provided to its own certified public accountants to the extent such
certification relates to the performance of such Performing Party's duties
pursuant to this agreement or a modified certificate limiting the certification
therein to the performance of such Performing Parties duties pursuant to this
Agreement.
(c) Each Performing Party shall indemnify and hold harmless each
Certification Party from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses arising out of an actual breach of the applicable
Performing Party's obligations under subsection (b) of this Section or the
applicable Performing Party's negligence, bad faith or willful misconduct in
connection with such obligations.
(d) Nothing contained in this Section shall be construed to require any
party to this Agreement, or any of such party's officers, to execute any Form
10-K or any ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification. The failure of any party to this
Agreement, or any of such party's officers, to execute any Form 10-K or any
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification shall not be regarded as a breach by such party of
any of its obligations under this Agreement. The Depositor, each Master
Servicer, each Special Servicer and the Certificate Administrator hereby agree
to negotiate in good faith with respect to compliance with any further guidance
from the Commission or its staff relating to the execution of any Form 10-K and
any ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification. In the event such parties agree on such
matters, this Agreement shall be amended to reflect such agreement pursuant to
Section 11.01, which amendment shall not require any Opinions of Counsel,
Officer's Certificates, Rating Agency confirmations or the consent of any
Certificateholder, notwithstanding anything to the contrary contained in this
Agreement. In no
-360-
event shall the General Special Servicer be required to execute any Form 10-K or
any ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification.
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
(a) Subject to Section 9.02, the Trust and the respective obligations
and responsibilities under this Agreement of the parties hereto (other than the
obligations of the Certificate Administrator to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by the
Certificate Administrator by or on behalf of the Trustee and required hereunder
to be so paid on the Distribution Date following the earlier to occur of: (i)
the purchase by any single Controlling Class Certificateholder or group of
Controlling Class Certificateholders, either Master Servicer or the General
Special Servicer (whose respective rights to effect such a purchase shall be
subject to the priorities and conditions set forth in subsection (b)) of all
Mortgage Loans and each REO Property remaining in the Trust Fund at a price (the
"Termination Price") equal to (A) the aggregate Purchase Price of all the
Mortgage Loans remaining in the Trust Fund (exclusive of any REO Mortgage
Loan(s)), plus (B) the appraised value of each REO Property, if any, included in
the Trust Fund, such appraisal to be conducted by a Qualified Appraiser selected
by the General Special Servicer and approved by the Certificate Administrator
and the applicable Master Servicer, minus (C) if the purchaser is a Master
Servicer or a General Special Servicer, the aggregate amount of unreimbursed
Advances made by such Person, together with any unpaid Advance Interest in
respect of such unreimbursed Advances and any unpaid servicing compensation
payable to such Person (which items shall be deemed to have been paid or
reimbursed to such Master Servicer or the General Special Servicer, as the case
may be, in connection with such purchase); (ii) the exchange by the Sole
Certificateholder(s) of all the Certificates for all Mortgage Loans and each REO
Property remaining in the Trust Fund; and (iii) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan or
REO Property remaining in the Trust Fund; provided, however, that in no event
shall the Trust continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of
the United States to the Court of St. ▇▇▇▇▇, living on the date hereof.
-361-
(b) Any single Controlling Class Certificateholder or group of
Controlling Class Certificateholders, PAR (or its successor) as a Master
Servicer, WFB (or its successor) as a Master Servicer or the General Special
Servicer, in that order of preference, may at its option elect to purchase all
the Mortgage Loans and each REO Property remaining in the Trust Fund as
contemplated by clause (i) of Section 9.01(a) by giving written notice to the
other parties hereto (and, in the case of an election by a Master Servicer or
the General Special Servicer, to the Holders of the Controlling Class) no later
than 60 days prior to the anticipated date of purchase; provided, however, that:
(A) the aggregate Stated Principal Balance of the Mortgage Pool at the
time of such election is 1.0% or less of the Initial Pool Balance;
(B) within 30 days after written notice of such election is so given,
no Person with a higher right of priority to make such an election does so;
(C) if more than one Controlling Class Certificateholder or group of
Controlling Class Certificateholders desire to purchase all of the Mortgage
Loans and any REO Properties, preference shall be given to the Controlling
Class Certificateholder or group of Controlling Class Certificateholders
with the largest Percentage Interest in the Controlling Class; and
(D) if a Master Servicer makes such an election, then the other Master
Servicer will have the option, by giving written notice to the other
parties hereto and to the Holders of the Controlling Class no later than 30
days prior to the anticipated date of purchase, to purchase all of the
Mortgage Loans and related REO Properties remaining in the Trust Fund for
which it is the applicable Master Servicer.
If the Trust is to be terminated in connection with the purchase of all
the Mortgage Loans and each REO Property remaining in the Trust Fund by any
Controlling Class Certificateholder(s), a Master Servicer or the General Special
Servicer, such Person(s) shall: (i) deposit, or deliver to the Master Servicers
for deposit, in the Master Servicers' respective Collection Accounts (after the
Determination Date, and prior to the Master Servicer Remittance Date, relating
to the anticipated Final Distribution Date) an amount in immediately available
funds equal to the Termination Price (the portion thereof allocable to all the
Mortgage Loans and related REO Properties, other than those for which a Master
Servicer exercises its option under clause (D) above, to be deposited in the
other Master Servicer's Collection Account and the portion thereof allocable to
-362-
those for which a Master Servicer exercises its option under clause (D) above to
be deposited in the such Master Servicer's Collection Account); and (ii) shall
reimburse all of the parties hereto (other than itself, if applicable) for all
reasonable out-of-pocket costs and expenses incurred by such parties in
connection with such purchase. On the Master Servicer Remittance Date for the
Final Distribution Date, each Master Servicer shall transfer to the Distribution
Account all amounts required to be transferred by it to such account on such
Master Servicer Remittance Date from such Master Servicer's Collection Account
pursuant to the first paragraph of Section 3.04(b), together with any other
amounts on deposit in such Collection Account that would otherwise be held for
future distribution. Upon confirmation that the deposit of the Termination Price
has been made to the Collection Account(s) and the reimbursement contemplated by
the second preceding sentence has been made to the parties hereto, the Trustee
shall release or cause to be released to the purchasing party (or its designee)
the Mortgage Files for the remaining Mortgage Loans and shall execute all
assignments, endorsements and other instruments furnished to it by the
purchasing party as shall be necessary to effectuate transfer of the Mortgage
Loans and REO Properties to the purchasing party (or its designee).
Following the date on which the aggregate Certificate Principal Balance
of the Registered Certificates is reduced to zero, the Sole Certificateholder(s)
shall have the right to exchange all of the Certificates for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund as contemplated by
clause (ii) of Section 9.01(a) by giving written notice to all the parties
hereto no later than 60 days prior to the anticipated date of exchange. In the
event that the Sole Certificateholder(s) elect(s) to exchange all of the
Certificates for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund in accordance with the preceding sentence, such Sole
Certificateholder(s), not later than the Business Day prior to the Distribution
Date on which the final distribution on the Certificates is to occur, shall
deposit in each Collection Account an amount in immediately available funds
equal to all amounts then due and owing to the Depositor, each Master Servicer,
each Special Servicer, the Certificate Administrator, the Trustee and/or the
Fiscal Agent hereunder (and their respective agents) that may be withdrawn from
such Collection Account, pursuant to Section 3.05(a), or (without duplication
between the Collection Accounts) that may be withdrawn from the Distribution
Account, pursuant to Section 3.05(b), but only to the extent that such amounts
are not already on deposit in such Collection Account. In addition, each Master
Servicer shall transfer to the Distribution Account all amounts required to be
transferred by it to such account on such Master Servicer Remittance Date from
such Master Servicer's Collection Account pursuant to the first paragraph of
Section 3.04(b).
-363-
Upon confirmation that such final deposits have been made and following the
surrender of all the Certificates on the Final Distribution Date, the Trustee
shall release or cause to be released to the Sole Certificateholder(s) or any
designee thereof, the Mortgage Files for the remaining Mortgage Loans and shall
execute all assignments, endorsements and other instruments furnished to it by
the Sole Certificateholder(s) as shall be necessary to effectuate transfer of
the Mortgage Loans and REO Properties remaining in the Trust Fund.
(c) Notice of any termination shall be given promptly by the
Certificate Administrator by letter to Certificateholders mailed (x) if such
notice is given in connection with the purchase of all the Mortgage Loans and
each REO Property remaining in the Trust Fund by a Master Servicer, the General
Special Servicer and/or any Controlling Class Certificateholder(s), not earlier
than the 15th day and not later than the 25th day of the month next preceding
the month of the final distribution on the Certificates and (y) otherwise during
the month of such final distribution on or before the Master Servicer Remittance
Date in such month, in any event specifying (i) the Distribution Date upon which
the Trust Fund will terminate and final payment on the Certificates will be
made, (ii) the amount of any such final payment in respect of each Class of
Certificates and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the office or agency of the Certificate
Administrator therein designated. The Certificate Administrator shall give such
notice to the other parties hereto at the time such notice is given to
Certificateholders.
(d) Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Certificate Administrator
shall distribute to each Certificateholder so presenting and surrendering its
Certificates such Certificateholder's Percentage Interest of that portion of the
amounts on deposit in the Distribution Account that is allocable to payments on
the relevant Class in accordance with Section 4.01. Any funds not distributed to
any Holder or Holders of Certificates of any Class on the Final Distribution
Date because of the failure of such Holder or Holders to tender their
Certificates shall, on such date, be set aside and held uninvested in trust and
credited to the account or accounts of the appropriate non-tendering Holder or
Holders. If any Certificates as to which notice has been given pursuant to this
Section 9.01 shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Certificate Administrator shall
mail a second notice to the remaining non-tendering Certificateholders to
surrender their Certificates for cancellation in order to receive the final
distribution with respect thereto. If within one year after the second notice
all such Certificates shall not have been surrendered for cancellation, the
Certificate Administrator, directly or through an
-364-
agent, shall take such reasonable steps to contact the remaining non-tendering
Certificateholders concerning the surrender of their Certificates as it shall
deem appropriate. The costs and expenses of holding such funds in trust and of
contacting such Certificateholders following the first anniversary of the
delivery of such second notice to the non-tendering Certificateholders shall be
paid out of such funds. No interest shall accrue or be payable to any former
Holder on any amount held in trust hereunder. If by the second anniversary of
the delivery of such second notice, all of the Certificates shall not have been
surrendered for cancellation, then, subject to applicable escheat laws, the
Certificate Administrator shall distribute to the Class R Certificateholders all
unclaimed funds and other assets which remain subject hereto.
SECTION 9.02. Additional Termination Requirements.
(a) If any Controlling Class Certificateholder(s), any Master
Servicer(s) and/or the General Special Servicer purchase(s), or the Sole
Certificateholder(s) exchange(s) all of the Certificates for, all the Mortgage
Loans and each REO Property remaining in the Trust Fund as provided in Section
9.01, the Trust and each REMIC Pool shall be terminated in accordance with the
following additional requirements, unless the purchasing party obtains at its
own expense and delivers to the Trustee and the Certificate Administrator an
Opinion of Counsel, addressed to the Trustee and the Certificate Administrator,
to the effect that the failure of the Trust to comply with the requirements of
this Section 9.02 will not result in an Adverse REMIC Event with respect to any
REMIC Pool:
(i) the Certificate Administrator shall specify the first day in the
90-day liquidation period in a statement attached to the final Tax Return
for each REMIC Pool, pursuant to Treasury regulation section 1.860F-1 and
shall satisfy all requirements of a qualified liquidation under Section
860F of the Code and any regulations thereunder (as evidenced by an Opinion
of Counsel to such effect delivered on behalf and at the expense of the
purchasing party);
(ii) during such 90-day liquidation period and at or prior to the time
of making the final payment on the Certificates, the Certificate
Administrator shall sell or otherwise transfer all the Mortgage Loans and
each REO Property to the applicable Master Servicer, the General Special
Servicer or the applicable Controlling Class Certificateholder(s), as the
case may be, in exchange for cash and/or Certificates in accordance with
Section 9.01; and
-365-
(iii) immediately following the making of the final payment on the
Certificates, the Certificate Administrator shall distribute or credit, or
cause to be distributed or credited, to the Holders of the Class R
Certificates all remaining cash on hand (other than cash retained to meet
claims), and each REMIC Pool shall terminate at that time.
(b) By their acceptance of Certificates, the Holders hereby authorize
the Trustee to prepare and adopt, on behalf of the Trust, a plan of complete
liquidation of each REMIC Pool in the form of the notice of termination provided
for in Section 9.01(c) and in accordance with the terms and conditions of this
Agreement, which authorization shall be binding upon all successor
Certificateholders.
-366-
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. Tax Administration.
(a) The Trustee shall elect to treat each REMIC Pool as a REMIC under
the Code and, if necessary, under Applicable State Law. Each such election will
be made on IRS Form 1066 or other appropriate federal tax or information return
or any appropriate state Tax Returns for the taxable year ending on the last day
of the calendar year in which the Certificates are issued.
(b) The Holder of Certificates evidencing the largest Percentage
Interest in the Class R Certificates is hereby designated as the Tax Matters
Person of each REMIC Pool and, in such capacity, shall be responsible to act on
behalf of such REMIC Pool in relation to any tax matter or controversy, to
represent such REMIC Pool in any administrative or judicial proceeding relating
to an examination or audit by any governmental taxing authority, to request an
administrative adjustment as to any taxable year of such REMIC Pool, to enter
into settlement agreements with any governmental taxing agency with respect to
such REMIC Pool, to extend any statute of limitations relating to any tax item
of such REMIC Pool and otherwise to act on behalf of such REMIC Pool in relation
to any tax matter or controversy involving such REMIC Pool; provided that the
Tax Administrator is hereby irrevocably appointed and agrees to act (in
consultation with the Tax Matters Person for each REMIC Pool) as agent and
attorney-in-fact for the Tax Matters Person for each REMIC Pool in the
performance of its duties as such. The legal expenses and costs of any action
described in this Section 10.01(b) and any liability resulting therefrom shall
be expenses, costs and liabilities of the Trust payable out of amounts on
deposit in the Distribution Account as provided by Section 3.05(b) unless such
legal expenses and costs are incurred by reason of a Tax Matters Person's or the
Tax Administrator's misfeasance, bad faith or negligence in the performance of,
or such Person's reckless disregard of, its obligations or are expressly
provided by this Agreement to be borne by any party hereto.
(c) The Tax Administrator shall prepare or cause to be prepared, submit
to the Trustee for execution and file all of the Tax Returns in respect of each
REMIC Pool (other than Tax Returns required to be filed by a Master Servicer
and/or a Special Servicer pursuant to Section 3.09(g)) and all of the applicable
income tax and other information returns for each Grantor Trust
-367-
Pool. The expenses of preparing and filing such returns shall be borne by the
Tax Administrator without any right of reimbursement therefor.
(d) The Tax Administrator shall perform on behalf of each REMIC Pool
all reporting and other tax compliance duties that are the responsibility of
such REMIC Pool under the Code, the REMIC Provisions or other compliance
guidance issued by the IRS or any state or local taxing authority. Included
among such duties, the Tax Administrator shall provide: (i) to any Transferor of
a Class R Certificate, such information as is necessary for the application of
any tax relating to the transfer of a Class R Certificate to any Person who is
not a Permitted Transferee; (ii) to the Certificateholders, such information or
reports as are required by the Code or the REMIC Provisions, including reports
relating to interest, original issue discount and market discount or premium
(using the Prepayment Assumption as required); and (iii) to the IRS, the name,
title, address and telephone number of the Person who will serve as the
representative of each REMIC Pool.
(e) The Trustee and the Tax Administrator shall take such action and
shall cause each REMIC Pool to take such action as shall be necessary to create
or maintain the status thereof as a REMIC under the REMIC Provisions (and the
other parties hereto shall assist them, to the extent reasonably requested by
the Trustee or the Tax Administrator), to the extent that the Trustee or the Tax
Administrator, as applicable, has actual knowledge that any particular action is
required; provided that the Trustee and the Tax Administrator shall be deemed to
have knowledge of relevant tax laws. The Trustee or the Tax Administrator, as
applicable, shall not knowingly take or fail to take any action, or cause any
REMIC Pool to take or fail to take any action, that under the REMIC Provisions,
if taken or not taken, as the case may be, could result in an Adverse REMIC
Event in respect of any REMIC Pool or an Adverse Grantor Trust Event with
respect to either Grantor Trust Pool, unless the Trustee or the Tax
Administrator, as applicable, has received an Opinion of Counsel to the effect
that the contemplated action or non-action, as the case may be, will not result
in an Adverse REMIC Event or an Adverse Grantor Trust Event. None of the other
parties hereto shall take or fail to take any action (whether or not authorized
hereunder) as to which the Trustee or the Tax Administrator, as applicable, has
advised it in writing that it has received an Opinion of Counsel to the effect
that an Adverse REMIC Event or an Adverse Grantor Trust Event could occur with
respect to such action. In addition, prior to taking any action with respect to
any REMIC Pool or the assets thereof, or causing any REMIC Pool to take any
action, which is not contemplated by the terms of this Agreement, each of the
other parties hereto will consult with the Tax Administrator, in writing, with
respect to whether such action could cause an Adverse REMIC Event or an Adverse
Grantor Trust Event
-368-
to occur, and no such other party shall take any such action or cause any REMIC
Pool to take any such action as to which the Tax Administrator has advised it in
writing that an Adverse REMIC Event or an Adverse Grantor Trust Event could
occur. The Trustee may consult with counsel to make such written advice, and the
cost of same shall be borne by the party seeking to take the action not
permitted by this Agreement.
(f) If any tax is imposed on any REMIC Pool, including "prohibited
transactions" taxes as defined in Section 860F(a)(2) of the Code, any tax on
"net income from foreclosure property" as defined in Section 860G(c) of the
Code, any taxes on contributions to any REMIC Pool after the Startup Day
pursuant to Section 860G(d) of the Code, and any other tax imposed by the Code
or any applicable provisions of state or local tax laws (other than any tax
permitted to be incurred by the Special Servicer on behalf of the Trust pursuant
to Section 3.17(a)), then such tax, together with all incidental costs and
expenses (including penalties and reasonable attorneys' fees), shall be charged
to and paid by: (i) the Trustee, if such tax arises out of or results from a
breach of any of its obligations under Article IV, Article VIII or this Article
X; (ii) the Certificate Administrator, if such tax arises out of or results from
a breach by the Certificate Administrator of any of its obligations under
Article IV, Article VIII or this Article X (which breach constitutes negligence,
bad faith or willful misconduct); (iii) the Tax Administrator, if such tax
arises out of or results from a breach by the Tax Administrator of any of its
obligations under Article IV, Article VIII or this Article X (which breach
constitutes negligence, bad faith or willful misconduct); (iv) the Fiscal Agent,
if such tax arises out of or results from a breach of any of its obligations
under Article IV or this Article X; (v) the applicable Master Servicer, if such
tax arises out of or results from a breach by such Master Servicer of any of its
obligations under Article III or this Article X; (vi) the applicable Special
Servicer, if such tax arises out of or results from a breach by such Special
Servicer of any of its obligations under Article III or this Article X; or (vii)
the Trust, out of the Trust Fund (exclusive of the Grantor Trust Pools), in all
other instances. If any tax is imposed on either Grantor Trust Pool, such tax,
together with all incidental costs and expenses (including, without limitation,
penalties and reasonable attorneys' fees), shall be charged to and paid by: (i)
the applicable Special Servicer, if such tax arises out of or results from a
breach by such Special Servicer of any of its obligations under Article III or
this Article X; (ii) the applicable Master Servicer, if such tax arises out of
or results from a breach by such Master Servicer of any of its obligations under
Article III or this Article X; (iii) the Trustee, if such tax arises out of or
results from a breach by the Trustee of any of its obligations under Article IV,
Article VIII or this Article X; (iv) the Certificate Administrator, if such tax
arises out of or results from a breach by the
-369-
Certificate Administrator of any of its obligations under Article IV, Article
VIII or this Article X (which breach constitutes negligence, bad faith or
willful misconduct); (v) the Tax Administrator, if such tax arises out of or
results from a breach by the Tax Administrator of any of its obligations under
Article IV, Article VIII or this Article X (which breach constitutes negligence,
bad faith or willful misconduct); (iv) the Fiscal Agent, if such tax arises out
of or results from a breach of any of its obligations under Article IV or this
Article X; or (v) the Trust, out of the portion of the Trust Fund constituting
such Grantor Trust Pool, in all other instances. Consistent with the foregoing,
any tax permitted to be incurred by a Special Servicer pursuant to Section
3.17(a) shall be charged to and paid by the Trust. Any such amounts payable by
the Trust in respect of taxes shall be paid by the Trustee out of amounts on
deposit in the Distribution Account.
(g) The Tax Administrator and, to the extent that records are
maintained thereby in the normal course of its business, each of the other
parties hereto shall, for federal income tax purposes, maintain books and
records with respect to each REMIC Pool on a calendar year and an accrual basis.
(h) Following the Startup Day for each REMIC Pool, the Trustee shall
not (except as contemplated by Section 2.03) accept any contributions of assets
to any REMIC Pool unless it shall have received an Opinion of Counsel (at the
expense of the party seeking to cause such contribution) to the effect that the
inclusion of such assets in such REMIC Pool will not result in an Adverse REMIC
Event in respect of such REMIC Pool or an Adverse Grantor Trust Event with
respect to either Grantor Trust Pool.
(i) None of the Master Servicers, the Special Servicers, the Trustee or
the Fiscal Agent shall consent to or, to the extent it is within the control of
such Person, permit: (i) the sale or disposition of any Mortgage Loan (except in
connection with (A) a breach of any representation or warranty regarding any
Mortgage Loan set forth in or made pursuant to the related Pooled Mortgage Loan
Purchase Agreement, (B) the foreclosure, default or reasonably foreseeable
material default of a Mortgage Loan, including the sale or other disposition of
a Mortgaged Property acquired by foreclosure, deed in lieu of foreclosure or
otherwise, (C) the bankruptcy of any REMIC Pool, or (D) the termination of the
Trust pursuant to Article IX of this Agreement); (ii) the sale or disposition of
any investments in any Investment Account for gain; or (iii) the acquisition of
any assets for the Trust (other than a Mortgaged Property acquired through
foreclosure, deed in lieu of foreclosure or otherwise in respect of a defaulted
Mortgage Loan, other than a Replacement Pooled Mortgage Loan substituted for a
Deleted Pooled Mortgage Loan and other than Permitted Investments acquired in
connection with the investment of funds in an Account or an interest in a single
-370-
member limited liability company, as provided in Section 3.16); in any event
unless it has received an Opinion of Counsel (at the expense of the party
seeking to cause such sale, disposition, or acquisition) to the effect that such
sale, disposition, or acquisition will not result in an Adverse REMIC Event in
respect of any REMIC Pool or an Adverse Grantor Trust Event with respect to
either Grantor Trust Pool.
(j) Except as otherwise permitted by Section 3.17(a), none of the
Master Servicers, the Special Servicers or the Trustee shall enter into any
arrangement by which any REMIC Pool will receive a fee or other compensation for
services or, to the extent it is within the control of such Person, permit any
REMIC Pool to receive any income from assets other than "qualified mortgages" as
defined in Section 860G(a)(3) of the Code or "permitted investments" as defined
in Section 860G(a)(5) of the Code. At all times as may be required by the Code,
each of the respective parties hereto (to the extent it is within its control)
shall take necessary actions within the scope of their responsibilities as more
specifically set forth in this Agreement such that they do not cause
substantially all of the assets of each REMIC Pool to fail to consist of
"qualified mortgages" as defined in Section 860G(a)(3) of the Code and
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(k) Within 30 days after the related Startup Day, the Tax Administrator
shall prepare and file with the IRS, with respect to each REMIC Pool, IRS Form
8811 "Information Return for Real Estate Mortgage Investment Conduits (REMICs)
and Issuers of Collateralized Debt Obligations".
(l) The parties intend that the portion of the Trust Fund consisting of
Post-ARD Additional Interest on the ARD Mortgage Loans and the Class V
Sub-Account shall constitute, and that the affairs of such portion of the Trust
Fund shall be conducted so as to qualify as, a Grantor Trust, and the provisions
hereof shall be interpreted consistently with this intention. In addition, the
parties intend that the portion of the Trust Fund consisting of the REMIC I
Residual Interest, the REMIC II Residual Interest and the REMIC III Residual
Interest shall constitute, and the affairs of such portion of the Trust Fund
shall be conducted so as to qualify as, a Grantor Trust, and the provisions
hereof shall be interpreted consistently with this intention. The Tax
Administrator shall also perform on behalf of each Grantor Trust Pool all
reporting and other tax compliance duties that are the responsibility of such
Grantor Trust Pool under the Code or any compliance guidance issued by the IRS
or any state or local taxing authorities. The expenses of preparing and filing
such returns shall be borne by the Tax Administrator.
-371-
SECTION 10.02. Depositor, Master Servicers, Special Servicers
and Fiscal Agent to Cooperate with Tax Administrator.
(a) The Depositor shall provide or cause to be provided to the Tax
Administrator, within 10 days after the Closing Date, all information or data
that the Tax Administrator reasonably determines to be relevant for tax purposes
as to the valuations and issue prices of the Certificates, including the price,
yield, prepayment assumption and projected cash flow of the Certificates.
(b) Each of the Master Servicers, the Special Servicers and the Fiscal
Agent shall furnish such reports, certifications and information in its
possession, and access to such books and records maintained thereby, as may
relate to the Certificates or the Trust Fund and as shall be reasonably
requested by the Tax Administrator in order to enable it to perform its duties
under this Article X.
-372-
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct, modify or
supplement any provision herein which may be inconsistent with any other
provision herein or to correct any error, (iii) to make any other provisions
with respect to matters or questions arising hereunder which shall not be
inconsistent with the then existing provisions hereof, (iv) as evidenced by an
Opinion of Counsel delivered to the Trustee, the Master Servicers and the
Special Servicers, to relax or eliminate (A) any requirement hereunder imposed
by the REMIC Provisions (if the REMIC Provisions are amended or clarified such
that any such requirement may be relaxed or eliminated) or (B) any transfer
restriction imposed on the Certificates pursuant to Section 5.02(b) or Section
5.02(c) (if applicable law is amended or clarified such that any such
restriction may be relaxed or eliminated), (v) as evidenced by an Opinion of
Counsel delivered to the Trustee, either (X) to comply with any requirements
imposed by the Code or any successor or amendatory statute or any temporary or
final regulation, revenue ruling, revenue procedure or other written official
announcement or interpretation relating to federal income tax laws or any such
proposed action which, if made effective, would apply retroactively to any REMIC
Pool or either Grantor Trust Pool at least from the effective date of such
amendment, or (Y) to avoid the occurrence of a prohibited transaction or to
reduce the incidence of any tax that would arise from any actions taken with
respect to the operation of any REMIC Pool or either Grantor Trust Pool, (vi)
subject to Section 5.02(d)(iv), to modify, add to or eliminate any of the
provisions of Section 5.02(d)(i), (ii) or (iii), or (vii) to avoid an Adverse
Rating Event with respect to any Class of Rated Certificates; provided that (I)
no such amendment may significantly change the activities of the Trust; and (II)
any such amendment for the specific purposes described in clause (iii), (iv) or
(vii) above shall not adversely affect in any material respect the interests of
any Certificateholder or any third-party beneficiary to this Agreement or any
provision hereof, as evidenced by the Trustee's and Certificate Administrator's
receipt of an Opinion of Counsel to that effect (or, alternatively, in the case
of a Class of Rated Certificates, written confirmation from each applicable
Rating Agency to the effect that such amendment shall not result in an Adverse
Rating Event with respect to any Class of Rated Certificates); (III) with
respect to any such amendment for the specific purposes described in clause
(iii) above, the
-373-
Trustee and the Certificate Administrator shall receive written confirmation
from each applicable Rating Agency to the effect that such amendment shall not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates; and (IV) no such amendment may affect the RREEF Textron B-Note
Holder without the written consent of the RREEF Textron B-Note Holder. This
Agreement may also be amended from time to time by the mutual agreement of the
parties hereto, without the consent of any of the Certificateholders, as and to
the extent provided by Section 8.15(d).
(b) This Agreement may also be amended from time to time by the mutual
agreement of the parties hereto, with the consent of the Holders of Certificates
entitled to not less than 51% of the Voting Rights allocated to all of the
Classes that are materially affected by the amendment, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided, however, that no such amendment shall (i) reduce in any
manner the amount of, or delay the timing of, payments received or advanced on
Mortgage Loans and/or REO Properties which are required to be distributed on any
Certificate, without the consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of any
Class of Certificates in a manner other than as described in clause (i) above,
without the consent of the Holders of all Certificates of such Class, (iii)
modify the provisions of this Section 11.01 or the definition of "Servicing
Standard", without the consent of the Holders of all Certificates then
outstanding, (iv) significantly change the activities of the Trust, without the
consent of the Holders of Certificates entitled to not less than 51% of all the
Voting Rights (not taking into account Certificates held by the Depositor or any
Pooled Mortgage Loan Seller or any of their respective Affiliates or agents),
(v) adversely affect in any material respect the interests of any third-party
beneficiary to this Agreement or any provision herein, without the consent of
such third-party beneficiary or (vi) affect the RREEF Textron B-Note Holder,
without the consent of the RREEF Textron B-Note Holder. Notwithstanding any
other provision of this Agreement, for purposes of the giving or withholding of
consents pursuant to this Section 11.01, Certificates registered in the name of
the Depositor or any Affiliate of the Depositor shall be entitled to the same
Voting Rights with respect to the matters described above as they would if
registered in the name of any other Person.
(c) Notwithstanding any contrary provision of this Agreement, none of
the Certificate Administrator, the Trustee, the Master Servicers or the Special
Servicers shall consent to any amendment to this Agreement unless it shall first
have obtained or been furnished with an Opinion of Counsel to the effect that
neither such amendment nor the exercise of any power granted to any
-374-
party hereto in accordance with such amendment will result in an Adverse REMIC
Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with
respect to either Grantor Trust Pool.
(d) Promptly after the execution and delivery of any amendment by all
parties thereto, the Trustee shall send a copy thereof to the Certificate
Administrator for delivery to each Certificateholder and to each Rating Agency.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization, execution and delivery thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) The Trustee and the Certificate Administrator each may but shall
not be obligated to enter into any amendment pursuant to this Section 11.01 that
affects its rights, duties and immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Trustee requests any amendment of this Agreement
that it reasonably believes protects or is in furtherance of the rights and
interests of Certificateholders, the cost of any Opinion of Counsel required in
connection therewith pursuant to Section 11.01(a) or (c) shall be payable out of
the Distribution Account.
SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Trustee at the expense of the Trust (payable out of the
Distribution Account), but only if (i) a Master Servicer or Special Servicer, as
applicable, determines in its reasonable good faith judgment, that such
recordation materially and beneficially affects the interests of the
Certificateholders and so informs the Trustee in writing and (ii) the
Controlling Class Representative consents.
-375-
(b) For the purpose of facilitating the recordation of this Agreement
as herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates entitled to at least 25% of the Voting
Rights shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of any other Holders of
-376-
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder (which priority or preference is not otherwise provided for
herein), or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 11.03, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
SECTION 11.04. Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the substantive laws of the State of New York applicable to agreements made
and to be performed entirely in said State, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws. The parties hereto intend that the provisions of Section 5-1401 of the New
York General Obligations Law shall apply to this Agreement.
SECTION 11.05. Notices.
Any communications provided for or permitted hereunder shall be in
writing (including by telecopy) and, unless otherwise expressly provided herein,
shall be deemed to have been duly given when delivered to or, in the case of
telecopy notice, when received: (i) in the case of the Depositor, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (with a copy
to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq., telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇); (ii) in the case of
PAR as a Master Servicer, Prudential Asset Resources Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇▇, telecopy number: (214)
777-4556; (iii) in the case of WFB as a Master Servicer, ▇▇▇▇▇ Fargo Bank,
National Association, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Commercial Mortgage Servicing (with a copy to ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ 94111); (iv) in the case of the General Special
Servicer, ARCap Special Servicing, Inc., ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, telecopy number (▇▇▇) ▇▇▇-▇▇▇▇
(with a copy to ▇▇▇▇▇ ▇▇▇▇▇, ARCap Special Servicing, Inc., ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, telecopy number (▇▇▇) ▇▇▇-▇▇▇▇); (v)
in the case of the RREEF Textron Special Servicer, Prudential Asset Resources,
Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Attention: Legal
Department, telecopy number (▇▇▇) ▇▇▇-▇▇▇▇); (vi) in the case of the Certificate
Registrar, Certificate Administrator and Tax Administrator, ▇▇▇▇▇ Fargo Bank
Minnesota, N.A., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Administration (CMBS), Bear
-377-
▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., 2002-PBW1, telecopy number: (410)
884-2360; (vii) in the case of the Trustee, LaSalle Bank National Association,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed
Securities Trust Services Group, Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities
Inc., 2002-PBW1, telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇; (viii) in the case of the
Fiscal Agent, ABN AMRO Bank N.V., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed Securities Trust Services Group, Bear
▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., 2002-PBW1, telecopy number: (312)
904-2084; (ix) in the case of the Rating Agencies, (A) ▇▇▇▇▇'▇ Investors Service
Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Commercial MBS
Monitoring Department, telecopy number (▇▇▇) ▇▇▇-▇▇▇▇, and (B) Fitch, Inc., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Commercial Mortgage
Surveillance; and (x) in the case of any Pooled Mortgage Loan Seller, the
address for notices to such Pooled Mortgage Loan Seller under the related Pooled
Mortgage Loan Purchase Agreement; or as to each such Person such other address
and/or telecopy number as may hereafter be furnished by such Person to the
parties hereto in writing. Any communication required or permitted to be
delivered to a Certificateholder shall be deemed to have been duly given when
mailed first class, postage prepaid, to the address of such Holder as shown in
the Certificate Register.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenant(s), agreement(s), provision(s) or term(s) shall be deemed severable
from the remaining covenants, agreements, provisions or terms of this Agreement
and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the Certificates or the rights of the Holders
thereof.
SECTION 11.07. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto, their respective successors and assigns and, as
third party beneficiaries (with all right to enforce the obligations hereunder
intended for their benefit as if a party hereto), the Underwriters, the
Designated Sub-Servicers and the non-parties referred to in Sections 6.03, 8.05,
and Section 3.22(f) and all such provisions shall inure to the benefit of the
Certificateholders. No other person, including any Borrower, shall be entitled
to any benefit or equitable right, remedy or claim under this Agreement.
-378-
SECTION 11.08. Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.09. Notices to and from the Rating Agencies and the
Depositor.
(a) The Trustee (or, with respect to items (v) and (vii) below, the
Certificate Administrator) shall promptly provide notice to each Rating Agency
and the Depositor (and, with respect to items (i), (ii) and (iii) below, the
RREEF Textron B-Note Holder) with respect to each of the following of which a
Responsible Officer of the Trustee has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation, termination, merger or consolidation of any
Master Servicer or Special Servicer and the appointment of a successor;
(iv) the appointment, resignation or removal of a Fiscal Agent;
(v) any change in the location of the Distribution Account, the
Interest Reserve Account or the Excess Liquidation Proceeds Account;
(vi) any repurchase or substitution of a Mortgage Loan by a Pooled
Mortgage Loan Seller as contemplated by Section 2.03; and
(vii) the final payment to any Class of Certificateholders.
(b) Each Master Servicer shall promptly provide notice to each Rating
Agency and the Depositor with respect to each of the following of which it has
actual knowledge:
(i) the resignation or removal of the Trustee and the appointment of a
successor; and
(ii) any change in the location of its Collection Account.
-379-
(c) Each of the Master Servicers and the Special Servicers shall
promptly furnish (in hard copy format or through use of a Master Servicer's
internet website), to each Rating Agency copies of the following items (in each
case, at or about the same time that it delivers or causes the delivery of such
item to the Trustee):
(i) each of its Annual Performance Certifications;
(ii) each of its Annual Accountants' Reports; and
(iii) each report prepared pursuant to Section 3.09(e).
(d) The Certificate Administrator shall promptly deliver or otherwise
make available to each Rating Agency (in hard copy format or through use of the
Certificate Administrator's internet website) a copy of each Certificateholder
Report forwarded to the Holders of the Certificates (in each case, at or about
the same time that it delivers such Certificateholder Report to such Holders).
Any Restricted Servicer Reports delivered electronically as aforesaid shall be
accessible on the Certificate Administrator's internet website on a restricted
basis.
(e) The parties intend that each Rating Agency provide to the Trustee,
upon request, a listing of the then-current rating (if any) assigned by such
Rating Agency to each Class of Certificates then outstanding.
SECTION 11.10. Notices to Controlling Class Representative.
The Trustee, the Master Servicers and the Special Servicers shall each
deliver to the Controlling Class Representative a copy of each notice or other
item of information such Person is required to deliver to the Rating Agencies
pursuant to Section 11.09, in each case simultaneously with the delivery thereof
to the Rating Agencies, to the extent not already delivered pursuant to this
Agreement.
SECTION 11.11. Complete Agreement.
This Agreement embodies the complete agreement among the parties and
may not be varied or terminated except by a written agreement conforming to the
provisions of Section 11.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
-380-
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
BEAR ▇▇▇▇▇▇▇ COMMERCIAL
MORTGAGE SECURITIES INC.
Depositor
By: ______________________________________
Name:
Title:
PRUDENTIAL ASSET RESOURCES, INC.
a Master Servicer and the RREEF Textron
Special Servicer
By: ______________________________________
Name:
Title:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
a Master Servicer
By: ______________________________________
Name:
Title:
ARCAP SPECIAL SERVICING, INC.
General Special Servicer
By: ______________________________________
Name:
Title:
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.
Solely in its capacity as Certificate
Administrator and Tax Administrator
By: ___________________________________
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION
Trustee
By: ___________________________________
Name:
Title:
ABN AMRO BANK N.V.
Fiscal Agent
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
RREEF Textron B-Note Holder
By: ___________________________________
Name:
Title:
STATE OF ___________________ )
) ss.:
COUNTY OF _________________ )
On the ______ day of ______ 2002, before me, a notary public
in and for said State, personally appeared __________________, personally known
to me to be a _________________ of _________________________________________,
one of the entities that executed the within instrument, and also known to me to
be the person who executed it on behalf of such entity, and acknowledged to me
that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
____________________________________
Notary Public
[Notarial Seal]
EXHIBIT A-1
FORM OF CLASS ▇-▇, ▇-▇, B, C, D, E, F, G, H, J, K, L, M, N, P, X-1 AND X-2 CERTIFICATES
CLASS [ ] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 2002-PBW1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
Pass-Through Rate: [____% Class [Principal Balance] [Notional Amount] of the
per annum][Variable] Class [ ] Certificates as of the Closing Date:
$___________
Closing Date: October 3, 2002 Initial Certificate [Principal Balance] [Notional
Amount] of this Certificate as of the Closing Date:
$___________
First Distribution Date: Aggregate Stated Principal Balance of the Mortgage
November 12, 2002 Loans as of the Closing Date ("Initial Pool Balance"):
$921,181,353
Master Servicer and RREEF Textron Special Servicer: Trustee:
Prudential Asset Resources, Inc. LaSalle Bank National Association.
Master Servicer: Certificate Administrator and Tax Administrator:
▇▇▇▇▇ Fargo Bank, National Association ▇▇▇▇▇ Fargo Bank Minnesota, National Association
General Special Servicer: Fiscal Agent:
ARCap Special Servicing, Inc. ABN AMRO Bank N.V.
Certificate No. [ ] -___ CUSIP No.:________________________________
ISIN No.: ________________
A-1-1
[FOR BOOK-ENTRY CERTIFICATES][UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE CERTIFICATE ADMINISTRATOR OR ANY AGENT THEREOF FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[FOR PRIVATE CERTIFICATES][THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION
OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR ▇▇▇▇▇▇▇
COMMERCIAL MORTGAGE SECURITIES INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO
BANK N.V., ▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, PRUDENTIAL ASSET
RESOURCES, INC., ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, ARCAP SPECIAL
SERVICING, INC., OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
A-1-2
CONDUIT" (A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[FOR SUBORDINATE CERTIFICATES][THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE
CLASSES OF CERTIFICATES OF THE SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
[FOR PRINCIPAL BALANCE CERTIFICATES][THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.]
[FOR NOTIONAL AMOUNT CERTIFICATES][THE OUTSTANDING CERTIFICATE NOTIONAL AMOUNT
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE. THIS CERTIFICATE
DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT ENTITLE THE HOLDER
HEREOF TO DISTRIBUTIONS OF PRINCIPAL.]
[FOR REGULATION S GLOBAL CERTIFICATES][PRIOR TO THE DATE THAT IS 40 DAYS AFTER
THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE CERTIFICATES AND (B)
OCTOBER 3, 2002, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE
BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.]
This certifies that [FOR BOOK-ENTRY CERTIFICATES: CEDE & CO.][FOR
DEFINITIVE CERTIFICATES: [ ]] is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the [principal
balance][notional amount] of this Certificate (its "Certificate [Principal
Balance][Notional Amount]") as of the Closing Date by the aggregate [principal
balance][notional amount] of all the Class [ ] Certificates (their "Class
[Principal Balance][Notional Amount]") as of the Closing Date) in that certain
beneficial ownership interest in the Trust Fund evidenced by all the Class [ ]
Certificates. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as of October 1, 2002 (the
"Agreement"), among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc. as
depositor (the "Depositor," which term includes any successor entity under the
Agreement), Prudential Asset Resources, Inc. ("PAR"), as a master servicer (in
such capacity, a "Master Servicer," which term includes any successor entity
under the Agreement) and as special servicer of the RREEF Textron Portfolio Loan
Pair (in such capacity, the "RREEF Textron Special Servicer," which term
includes any successor entity under the Agreement), ▇▇▇▇▇ Fargo Bank, National
Association ("WFB"), as a master servicer (in such capacity, a "Master
A-1-3
Servicer," which term includes any successor entity under the Agreement), ARCap
Special Servicing, Inc. as special servicer of all the mortgage loans other than
the RREEF Textron Portfolio Loan Pair (in such capacity, the "General Special
Servicer," which term includes any successor entity under the Agreement),
LaSalle Bank National Association, as trustee (the "Trustee," which term
includes any successor entity under the Agreement), ▇▇▇▇▇ Fargo Bank Minnesota,
National Association, as certificate administrator (in such capacity, the
"Certificate Administrator," which term includes any successor entity under the
Agreement) and as tax administrator (in such capacity, the "Tax Administrator,"
which term includes any successor under the Agreement), ABN AMRO Bank N.V., as
fiscal agent (the "Fiscal Agent," which term includes any successor entity under
the Agreement) and The Prudential Insurance Company of America, as holder of the
RREEF Textron B-Note (the "RREEF Textron B-Note Holder," which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned thereto in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the 11th day of such month (or, if such 11th day is
not a Business Day, on the next succeeding Business Day), to the Person in whose
name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to all the Holders of the Class [ ] Certificates on the applicable Distribution
Date pursuant to the Agreement. All distributions made under the Agreement on
this Certificate will be made by the Certificate Administrator by wire transfer
of immediately available funds to the account of the Person entitled thereto at
a bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Certificate Administrator with wiring
instructions no later than five days prior to the related Record Date (which
wiring instructions may be in the form of a standing order applicable to all
subsequent distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any portion of an allocated Realized
Loss or Additional Trust Fund Expense in respect of this Certificate) will be
made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Accounts,
the Reserve Accounts, the Interest Reserve Account, the Excess Liquidation
Proceeds Account, the REO Accounts (if established), and any other accounts
established pursuant to the Agreement may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the
A-1-4
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
[FOR PRINCIPAL BALANCE CERTIFICATES][Any distribution to the Holder of this
Certificate in reduction of the Certificate Principal Balance hereof is binding
on such Holder and all future Holders of this Certificate and any Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such distribution is made upon this Certificate.]
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
[FOR PRIVATE CERTIFICATES][No transfer, sale, pledge or other disposition
of this Certificate or any interest herein shall be made unless that transfer,
sale, pledge or other disposition is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of this Certificate is to be made
without registration under the Securities Act, then (except in limited
circumstances) 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 E-1A to the Agreement; or (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit E-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit E-2A or as Exhibit E-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Certificate Registrar to the
effect that such transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust, the
Depositor, either Master Servicer, either Special Servicer, the Trustee, the
Certificate Administrator, the Tax Administrator, the Fiscal Agent or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.]
[FOR PRIVATE CERTIFICATES][If this Certificate constitutes a Rule 144A
Global Certificate and a transfer of any interest in this Certificate is to be
made without registration under the Securities Act, then (except under limited
circumstances specified in the Agreement) the Certificate Owner desiring to
effect such transfer shall be required to obtain either (i) a certificate from
such Certificate Owner's prospective Transferee substantially in the form
attached as Exhibit E-2C to the Agreement, or (ii) an Opinion of Counsel to the
effect that such prospective Transferee is a Qualified Institutional Buyer and
such transfer may be made without registration under the Securities Act. Except
as discussed below, if this Certificate constitutes a Rule 144A Global
Certificate, then interests herein shall not be transferred to any Person who
takes delivery in the form of an interest in that Global Certificate.]
A-1-5
[FOR PRIVATE CERTIFICATES][Notwithstanding the preceding paragraph, if this
Certificate constitutes a Rule 144A Global Certificate, then interests herein
may be transferred (without delivery of any certificate or Opinion of Counsel
described in the preceding paragraph) to any Person who takes delivery in the
form of a beneficial interest in the Regulation S Global Certificate of the same
Class as this Rule 144A Global Certificate upon delivery to the Certificate
Registrar of (x) a certificate from the Certificate Owner desiring to effect
such transfer substantially in the form attached as Exhibit E-1D to the
Agreement and a certificate from such Certificate Owner's prospective Transferee
substantially in the form attached as Exhibit E-2D to the Agreement and (y) such
written orders and instructions as are required under the applicable procedures
of DTC, Clearstream and/or Euroclear to direct the Trustee to debit the account
of a Depository Participant by a denomination of interests in this Rule 144A
Global Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Regulation S Global Certificate, that is equal
to the denomination of beneficial interests in such Class to be transferred.
Upon delivery to the Certificate Registrar of such certifications and such
orders and instructions, the Trustee, subject to and in accordance with the
applicable procedures of DTC, shall reduce the denomination of this Rule 144A
Global Certificate, and increase the denomination of the related Regulation S
Global Certificate, by the denomination of the beneficial interest in such Class
specified in such orders and instructions.]
[FOR PRIVATE CERTIFICATES][Except as discussed below, if this Certificate
constitutes a Regulation S Global Certificate, then beneficial interests in this
Certificate shall not be transferred to any Person other than a non-United
States Securities Person who takes delivery other than in the form of a
beneficial interest in this Certificate, and the Certificate Owner desiring to
effect such transfer shall be required to obtain from such Certificate Owner's
prospective Transferee a certification substantially in the form attached as
Exhibit E-2D to the Agreement. On or prior to the Release Date, beneficial
interests in any Regulation S Global Certificate may be held only through
Euroclear or Clearstream. After the Release Date, beneficial interests in any
Regulation S Global Certificate may be held through Euroclear, Clearstream or
any other direct account holder at DTC.]
[FOR PRIVATE CERTIFICATES][Notwithstanding the preceding paragraph, if this
Certificate constitutes a Regulation S Global Certificate, then following the
Release Date, interests in this Certificate may be transferred (without delivery
of any certificate described in the preceding paragraph) to any Person who takes
delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for the same Class as this Regulation S Global Certificate upon
delivery to the Certificate Registrar and the Certificate Administrator (i) a
certificate from the Certificate Owner desiring to effect such transfer
substantially in the form attached as Exhibit E-1C to the Agreement and a
certificate from such Certificate Owner's prospective Transferee substantially
in the form attached as Exhibit E-2C to the Agreement and (ii) such written
orders and instructions as are required under the applicable procedures of the
Depository, Clearstream and/or Euroclear to direct the Certificate Administrator
to debit the account of a Depository Participant by a denomination of interests
in this Regulation S Global Certificate, and credit the account of a Depository
Participant by a denomination of interests in such Rule 144A Global Certificate,
that is equal to the denomination of beneficial interests to be transferred.
Upon delivery to the Certificate Administrator of such certifications and such
orders and instructions, the Certificate Administrator, subject to and in
accordance with the applicable procedures of the Depository, shall reduce the
denomination of this Regulation S Global Certificate, and increase
A-1-6
the denomination of the related Rule 144A Global Certificate, by the
denomination of the beneficial interest in such Class specified in such orders
and instructions.]
[FOR PRIVATE CERTIFICATES][Notwithstanding the foregoing, any interest in a
Global Certificate may be transferred by any Certificate Owner holding such
interest to any Person who takes delivery in the form of a Definitive
Certificate of the same Class as such Global Certificate upon delivery to the
Certificate Registrar and the Certificate Administrator of (i) such
certifications and/or opinions as are contemplated above with respect to
transfers of this Certificate in definitive form and (ii) such written orders
and instructions as are required under the applicable procedures of the
Depository, Clearstream and/or Euroclear to direct the Certificate Administrator
to debit the account of a Depository Participant by a denomination of interests
in such Global Certificate. Upon delivery to the Certificate Registrar of the
certifications and/or opinions contemplated above with respect to transfers of
this Certificate in definitive form, the Certificate Administrator, subject to
and in accordance with the applicable procedures of the Depository, shall reduce
the denomination of the subject Global Certificate, and cause a Definitive
Certificate of the same Class as such Global Certificate, and in a denomination
equal to the reduction in the denomination of such Global Certificate, to be
executed, authenticated and delivered in accordance with this Agreement to the
applicable Transferee.]
[FOR PRIVATE CERTIFICATES][None of the Depositor, the Trustee, Certificate
Administrator or the Certificate Registrar is obligated to register or qualify
the Class [ ] Certificates under the Securities Act or any other securities law
or to take any action not otherwise required under the Agreement to permit the
transfer of this Certificate or any interest herein without registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, the Trustee, the Certificate Administrator, the Tax
Administrator, each of the Master Servicers, each of the Special Servicers, the
Fiscal Agent and the Certificate Registrar against any liability that may result
if the transfer is not so exempt or is not made in accordance with such federal
and state laws or the provisions described in the six preceding paragraphs.]
[FOR BOOK-ENTRY CERTIFICATES][The Global Certificates shall be deposited
with the Certificate Administrator as custodian for DTC and registered in the
name of Cede & Co. as nominee of DTC.]
No transfer of this Certificate or any interest herein shall be made (A) to
any retirement plan or other employee benefit plan or arrangement, including
individual retirement accounts and annuities, ▇▇▇▇▇ plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. [FOR PRIVATE CERTIFICATES][Except in limited
circumstances, the Certificate Registrar shall refuse to register the transfer
of this
A-1-7
Certificate (and, if applicable, any Certificate Owner shall refuse to transfer
an interest in this Certificate), unless it has received from the prospective
Transferee either (i) a certification to the effect that such prospective
Transferee is not a Plan and is not directly or indirectly purchasing this
Certificate on behalf of, as named fiduciary of, as trustee of, or with assets
of a Plan; or (ii) a certification to the effect that the purchase and holding
of this Certificate by such prospective Transferee is exempt from the prohibited
transaction provisions of Sections 406(a) and (b) and 407 of ERISA and the
excise taxes on such prohibited transactions imposed under Section 4975 of the
Code, by reason of Sections I and III of Prohibited Transaction Class Exemption
95-60; or (iii) if this Certificate is being acquired by, on behalf of or with
assets of a Plan in reliance upon Prohibited Transaction Exemption 90-30 or
90-29, a certification to the effect that such Plan (X) is an accredited
investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act, (Y)
is not sponsored (within the meaning of Section 3(16)(B) of ERISA) by the
Trustee, the Certificate Administrator, the Tax Administrator, the Depositor,
any Exemption-Favored Party, any Pooled Mortgage Loan Seller, any
Exemption-Favored Party, either Master Servicer, either Special Servicer, any
Sub-Servicer, any Exemption-Favored Party or any Borrower with respect to
Mortgage Loans constituting 5% of the aggregate unamortized principal of all the
Mortgage Loans determined as of the Closing Date, or by an Affiliate of any such
Person, and (Z) agrees that it will obtain from each of its Transferees a
written representation that such Transferee, if a Plan, satisfies the
requirements of the immediately preceding clauses (iii)(X) and (iii)(Y),
together with a written agreement that such Transferee will obtain from each of
its Transferees that are Plans a similar written representation regarding
satisfaction of the requirements of the immediately preceding clauses (iii)(X)
and (iii)(Y); or (iv) a certification of facts and an Opinion of Counsel which
otherwise establish to the reasonable satisfaction of the Certificate Registrar
(or, if applicable, the Certificate Owner effecting the transfer) that such
transfer will not result in a violation of Section 406 or 407 of ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code.]
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
[FOR BOOK-ENTRY CERTIFICATES][Notwithstanding the foregoing, for so long as
this Certificate is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC, transfers of interests
in this Certificate shall be made through the book-entry facilities of DTC, and
accordingly, this Certificate shall constitute a Book-Entry Certificate.]
A-1-8
The Depositor, the Master Servicers, the Special Servicers, the Trustee,
the Certificate Administrator, the Tax Administrator, the Fiscal Agent, the
Certificate Registrar and any agent of the Depositor, the Master Servicers, the
Special Servicers, the Trustee, the Certificate Administrator, the Fiscal Agent
or the Certificate Registrar may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicers, the Special Servicers, the Trustee, the Certificate
Administrator, the Tax Administrator, the Fiscal Agent, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund (ii) the purchase by either
Master Servicer, the General Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund; and (iii) the exchange by the Sole
Certificateholder(s) of all the Certificates for all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, either Master Servicer, either Special Servicer or any single
Controlling Class Certificateholder or group of Controlling Class
Certificateholders to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being 1.0% or less of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicers, the Special Servicers, the
Trustee, the Certificate Administrator, the Tax Administrator and the Fiscal
Agent with the consent of the Holders of Certificates entitled to not less than
51% of the Voting Rights allocated to all of the Classes materially affected by
the amendment and, if affected by the amendment, the RREEF Textron B-Note
Holder. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of any REMIC Pool as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
A-1-9
This Certificate shall be construed in accordance with the laws of the
State of New York applicable to agreements negotiated, made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-1-10
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed on its behalf by the Certificate Registrar.
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
not in its individual capacity but solely as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [ ] Certificates referred to in the
within-mentioned Agreement.
Dated:
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
not in its individual capacity but solely as
Certificate Registrar
By:____________________________________
Authorized Representative
A-1-11
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal
zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
_______________________________________________________________________________.
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to ____________)
and all applicable statements and notices should be mailed to___________________
______________________________________________________________________________.
This information is provided by____________________________________________
____________________________________, the Assignee named above, or______________
__________________________________________________________________, as its
agent.
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS R CERTIFICATES
CLASS R COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2002-PBW1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
Closing Date: October 3, 2002 Percentage Interest evidenced by
this Class R Certificate: ___%
First Distribution Date: Aggregate Stated Principal Balance of the Mortgage
November 12, 2002 Loans as of the Closing Date ("Initial Pool
Balance"): $921,181,353
Master Servicer and RREEF Textron Special Servicer: Trustee:
Prudential Asset Resources, Inc. LaSalle Bank National Association.
Master Servicer: Certificate Administrator and Tax Administrator:
▇▇▇▇▇ Fargo Bank, National Association ▇▇▇▇▇ Fargo Bank Minnesota,
National Association
General Special Servicer: Fiscal Agent:
ARCap Special Servicing, Inc. ABN AMRO Bank N.V.
Certificate No. R-___
A-2-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A "QUALIFIED
INSTITUTIONAL BUYER").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR ▇▇▇▇▇▇▇
COMMERCIAL MORTGAGE SECURITIES INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO
BANK N.V., ▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, PRUDENTIAL ASSET
RESOURCES, INC., ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, ARCAP SPECIAL
SERVICING, INC., OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES
OWNERSHIP OF THE "RESIDUAL INTEREST" IN MULTIPLE "REAL ESTATE MORTGAGE
INVESTMENT CONDUITS" (EACH A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTIONS 860G AND 860D OF THE CODE. CONSEQUENTLY, TRANSFER OF THIS
CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX RELATED TRANSFER RESTRICTIONS
DESCRIBED HEREIN. IF ANY PERSON BECOMES THE REGISTERED HOLDER OF THIS
A-2-2
CERTIFICATE IN VIOLATION OF SUCH TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL
BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT
BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, INCLUDING, BUT NOT LIMITED
TO, THE RECEIPT OF DISTRIBUTIONS, IF ANY, ON THIS CERTIFICATE.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Class R Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of October 1,
2002 (the "Agreement"), among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
as depositor (the "Depositor," which term includes any successor entity under
the Agreement), Prudential Asset Resources, Inc. ("PAR"), as a master servicer
(in such capacity, a "Master Servicer," which term includes any successor entity
under the Agreement) and as special servicer of the RREEF Textron Portfolio Loan
Pair (in such capacity, the "RREEF Textron Special Servicer," which term
includes any successor entity under the Agreement), ▇▇▇▇▇ Fargo Bank, National
Association ("WFB"), as a master servicer (in such capacity, a "Master
Servicer," which term includes any successor entity under the Agreement), ARCap
Special Servicing, Inc. as special servicer of all the mortgage loans other than
the RREEF Textron Portfolio Loan Pair (in such capacity, the "General Special
Servicer," which term includes any successor entity under the Agreement),
LaSalle Bank National Association, as trustee (the "Trustee," which term
includes any successor entity under the Agreement), ▇▇▇▇▇ Fargo Bank Minnesota,
National Association, as certificate administrator (in such capacity, the
"Certificate Administrator," which term includes any successor entity under the
Agreement) and as tax administrator (in such capacity, the "Tax Administrator,"
which term includes any successor under the Agreement), ABN AMRO Bank N.V., as
fiscal agent (the "Fiscal Agent," which term includes any successor entity under
the Agreement) and The Prudential Insurance Company of America, as holder of the
RREEF Textron B-Note (the "RREEF Textron B-Note Holder," which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned thereto in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the 11th day of such month (or, if such 11th day is
not a Business Day, on the next succeeding Business Day), to the Person in whose
name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to all the Holders of the Class R Certificates on the applicable Distribution
Date pursuant to the Agreement. All distributions made under the Agreement on
this Certificate will be made by the Certificate Administrator by wire transfer
of immediately available funds to the account of the Person entitled thereto at
a bank or other entity
A-2-3
having appropriate facilities therefor, if such Certificateholder shall have
provided the Certificate Administrator with wiring instructions no later than
five days prior to the related Record Date (which wiring instructions may be in
the form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any portion of an allocated Realized Loss or Additional
Trust Fund Expense in respect of this Certificate) will be made in like manner,
but only upon presentation and surrender of this Certificate at the offices of
the Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Accounts,
the Reserve Accounts, the Interest Reserve Account, the Excess Liquidation
Proceeds Account, the REO Accounts (if established), and any other accounts
established pursuant to the Agreement may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act, then (except in limited circumstances) 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
E-1A to the Agreement; or (ii) a certificate from the Certificateholder desiring
to effect such transfer substantially in the form attached as Exhibit E-1B to
the Agreement and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached as Exhibit E-2A to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Trustee to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust, the Depositor, the
Master Servicer, either Special Servicer, the Trustee, the Fiscal Agent or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.
None of the Depositor, the Trustee, the Certificate Administrator, the Tax
Administrator or the Certificate Registrar is obligated to register or qualify
the Class R
A-2-4
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of this
Certificate or any interest herein without registration or qualification. Any
Certificateholder or Certificate Owner desiring to effect a transfer of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, the Trustee, the Certificate Administrator, the Tax
Administrator, each of the Master Servicers, each of the Special Servicers, the
Fiscal Agent and the Certificate Registrar against any liability that may result
if the transfer is not so exempt or is not made in accordance with such federal
and state laws or the provisions described in the six preceding paragraphs.
No transfer of this Certificate or any interest herein shall be made except
to a Qualified Institutional Buyer. The Certificate Registrar shall refuse to
register the transfer of this Certificate unless it has received from the
prospective Transferee a certification, substantially in the form attached as
Annex 1 or Annex 2 to Exhibit E-2A to the Agreement, to the effect that such
prospective Transferee is a Qualified Institutional Buyer.
No transfer of this Certificate or any interest herein shall be made (A) to
any retirement plan or other employee benefit plan or arrangement, including
individual retirement accounts and annuities, ▇▇▇▇▇ plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. Except in limited circumstances, the
Certificate Registrar shall refuse to register the transfer of this Certificate
unless it has received from the prospective Transferee either: (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) a certification
to the effect that the purchase and holding of this Certificate by such
prospective Transferee is exempt from the prohibited transaction provisions of
Sections 406 and 407 of ERISA and Section 4975 of the Code under Sections I and
III of Prohibited Transaction Class Exemption 95-60; or (iii) a certification of
facts and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Trustee that such transfer will not result in a violation of
Section 406 or 407 of ERISA or Section 4975 of the Code or result in the
imposition of an excise tax under Section 4975 of the Code. It is hereby
acknowledged that the form of Certification attached to the Agreement as Exhibit
F-1 is acceptable for purposes of the preceding sentence.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by its acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Certificate Administrator and/or the Trustee (i) to
deliver payments to a Person other than such Person and (ii) to negotiate the
terms of any mandatory disposition, to execute all instruments of Transfer and
to do all other things necessary in connection with any such disposition. Each
Person holding or acquiring any Ownership Interest
A-2-5
in this Certificate must be a Permitted Transferee and shall promptly notify the
Trustee and the Tax Administrator of any change or impending change in its
status as a Permitted Transferee. In connection with any proposed Transfer of
any Ownership Interest in this Certificate, the Certificate Registrar shall
require delivery to it, and shall not register the Transfer of this Certificate
until its receipt of, an affidavit and agreement substantially in the form
attached as Exhibit G-1 to the Agreement (a "Transfer Affidavit and Agreement")
from the proposed Transferee, representing and warranting, among other things,
that such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if a Responsible
Officer of either the Certificate Registrar or Trustee has actual knowledge that
the proposed Transferee is not a Permitted Transferee, no Transfer of an
Ownership Interest in this Certificate to such proposed Transferee shall be
effected. In connection therewith, the Certificate Registrar shall not register
the transfer of an Ownership Interest in this Certificate to any entity
classified as a partnership under the Code unless at the time of transfer, all
of its beneficial owners are United States Persons.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest herein unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit G-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Trustee and the Tax
Administrator written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
If a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
acknowledgments, representations, warranties, certifications and/or agreements
with respect to each such account described above in this Certificate.
The provisions of Section 5.02(d) of the Agreement may be modified, added
to or eliminated, provided that there shall have been delivered to the
Certificate Administrator or the Tax Administrator the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not result in an Adverse
Rating Event with respect to any Class of Rated Certificates; and (b) an Opinion
of Counsel, in form and substance satisfactory to the Certificate Administrator
or the Tax Administrator, to the effect that such modification of, addition to
or elimination of such provisions will not cause any REMIC Pool to cease to
qualify as a REMIC or be subject to an entity-level tax caused by the Transfer
of a Class R Certificate to a Person that is not a Permitted
A-2-6
Transferee, or cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a Class R Certificate
to a Person that is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a "Disqualified
Organization", a "Non-United States Person" or a foreign permanent establishment
or fixed base (each within the meaning of an applicable income tax treaty) of a
United States Person. In addition, if such Transferee is classified as a
partnership under the Code, such Transferee can only be a "Permitted Transferee"
if all of its beneficial owners are United States Persons.
A "Disqualified Organization" is any of (i) the United States or a
possession thereof, 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
▇▇▇▇▇▇▇ Mac, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, international organization, or
any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (unless such
organization is subject to the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code and (v) any other Person so
designated by the Certificate Administrator or the Tax Administrator based upon
an Opinion of Counsel that the holding of an Ownership Interest in a Class R
Certificate by such Person may cause the Trust or any Person having an Ownership
Interest in any Class of Certificates (other than such Person) to incur a
liability for any federal tax imposed under the Code that would not otherwise be
imposed but for the Transfer of an Ownership Interest in a Class R Certificate
to such Person. The terms "United States", "State" and "international
organization" shall have the meanings set forth in Section 7701 of the Code or
successor provisions.
A "Non-United States Person" is any Person other than a United States
Person. A "United States Person" is a citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate
whose income 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, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust,
all within the meaning of Section 7701(a)(30) of the Code.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
A-2-7
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
The Depositor, the Master Servicer, each of the Special Servicers, the
Trustee, the Certificate Administrator, the Tax Administrator, the Fiscal Agent,
the Certificate Registrar and any agent of the Depositor, the Master Servicer,
either Special Servicer, the Trustee, the Certificate Administrator, the Tax
Administrator, the Fiscal Agent or the Certificate Registrar may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Master Servicer, either Special
Servicer, the Trustee, the Certificate Administrator, the Tax Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund and (ii) the purchase by the
Master Servicer, either Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, either Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Certificates; however, such right to purchase is subject to the aggregate
Stated Principal Balance of the Mortgage Pool at the time of purchase being less
than 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, each of the Special Servicers,
the Trustee, the Certificate Administrator, the Tax Administrator and the Fiscal
Agent with the consent of the Holders of Certificates entitled to not less than
51% of the Voting Rights allocated to all of the Classes materially affected by
the amendment and, if affected by the amendment, the RREEF Textron B-Note
Holder. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of any REMIC Pool as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-2-8
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the laws of the
State of New York applicable to agreements negotiated, made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-2-9
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed on its behalf by the Certificate Registrar.
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
not in its individual capacity but solely as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the
within-mentioned Agreement.
Dated:
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
not in its individual capacity but solely as
Certificate Registrar
By:____________________________________
Authorized Representative
A-2-10
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:_____________________________________________________________
______________________________________________________________________________.
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to______________________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
__________________________________________) and all applicable statements and
notices should be mailed to ___________________________________________________.
This information is provided by___________________________________________,
the Assignee named above, or __________________________________________________,
as its agent.
A-2-11
EXHIBIT A-22
FORM OF CLASS V CERTIFICATES
CLASS V COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2002-PBW1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool of
multifamily and commercial mortgage loans (the "Mortgage Loans"), such pool
being formed and sold by
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
Closing Date: October 3, 2002 Percentage Interest evidenced by this Class V
Certificate: ______%
First Distribution Date: Aggregate Stated Principal Balance of the Mortgage
November 12, 2002 Loans as of the Closing Date ("Initial Pool
Balance"): $921,181,353
Master Servicer and RREEF Textron Special Servicer: Trustee:
Prudential Asset Resources, Inc. LaSalle Bank National Association
Master Servicer: Certificate Administrator and Tax Administrator:
Well Fargo Bank, National Association ▇▇▇▇▇ Fargo Bank Minnesota,
National Association
General Special Servicer: Fiscal Agent:
ARCap Special Servicing, Inc. ABN AMRO Bank N.V.
Certificate No. V-___
A-3-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A "QUALIFIED
INSTITUTIONAL BUYER").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR ▇▇▇▇▇▇▇
COMMERCIAL MORTGAGE SECURITIES INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO
BANK N.V., ▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, PRUDENTIAL ASSET
RESOURCES, INC., ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, ARCAP SPECIAL
SERVICING, INC., OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS ENTITLED ONLY TO CERTAIN ADDITIONAL INTEREST (IF ANY)
RECEIVED IN RESPECT OF THE ARD LOANS, SUBJECT TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership
A-3-2
interest in the Trust Fund evidenced by all the Class V Certificates. The Trust
Fund was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as of October 1, 2002 (the "Agreement"), among Bear
▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc. as depositor (the "Depositor," which
term includes any successor entity under the Agreement), Prudential Asset
Resources, Inc. ("PAR"), as a master servicer (in such capacity, a "Master
Servicer," which term includes any successor entity under the Agreement) and as
special servicer of the RREEF Textron Portfolio Loan Pair (in such capacity, the
"RREEF Textron Special Servicer," which term includes any successor entity under
the Agreement), ▇▇▇▇▇ Fargo Bank, National Association ("WFB"), as a master
servicer (in such capacity, a "Master Servicer," which term includes any
successor entity under the Agreement), ARCap Special Servicing, Inc. as special
servicer of all the mortgage loans other than the RREEF Textron Portfolio Loan
Pair (in such capacity, the "General Special Servicer," which term includes any
successor entity under the Agreement), LaSalle Bank National Association, as
trustee (the "Trustee," which term includes any successor entity under the
Agreement), ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as certificate
administrator (in such capacity, the "Certificate Administrator," which term
includes any successor entity under the Agreement) and as tax administrator (in
such capacity, the "Tax Administrator," which term includes any successor under
the Agreement), ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent," which
term includes any successor entity under the Agreement) and The Prudential
Insurance Company of America, as holder of the RREEF Textron B-Note (the "RREEF
Textron B-Note Holder," which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
have the respective meanings assigned thereto in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the 11th day of such month (or, if such 11th day is
not a Business Day, on the next succeeding Business Day), to the Person in whose
name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to all the Holders of the Class R Certificates on the applicable Distribution
Date pursuant to the Agreement. All distributions made under the Agreement on
this Certificate will be made by the Certificate Administrator by wire transfer
of immediately available funds to the account of the Person entitled thereto at
a bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Certificate Administrator with wiring
instructions no later than five days prior to the related Record Date (which
wiring instructions may be in the form of a standing order applicable to all
subsequent distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any portion of an allocated Realized
Loss or Additional Trust Fund Expense in respect of this Certificate) will be
made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
A-3-3
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Accounts,
the Reserve Accounts, the Interest Reserve Account, the Excess Liquidation
Proceeds Account, the REO Accounts (if established), and any other accounts
established pursuant to the Agreement may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
This Certificate is issuable in fully registered form only without coupons.
As provided in the Agreement and subject to certain limitations therein set
forth, this Certificate is exchangeable for new Certificates of the same Class
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act, then (except in limited circumstances) 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
E-1A to the Agreement; or (ii) a certificate from the Certificateholder desiring
to effect such transfer substantially in the form attached as Exhibit E-1B to
the Agreement and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached either as Exhibit E-2A or as
Exhibit E-2B to the Agreement; or (iii) an Opinion of Counsel satisfactory to
the Trustee to the effect that such transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust, the Depositor, the Master Servicer, either Special Servicer, the
Trustee, any Fiscal Agent or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective Transferee on which such
Opinion of Counsel is based.
In addition, no transfer, sale, pledge or other disposition of this
Certificate or any interest herein shall be made unless the Certificate
Registrar receives (and, upon receipt, may conclusively rely upon) both: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit E-3A to the Agreement; and (ii) a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit E-3B to the Agreement.
None of the Depositor, the Trustee, the Certificate Administrator, the Tax
Administrator or the Certificate Registrar is obligated to register or qualify
the Class V Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of this Certificate or any interest herein without registration or
qualification. Any Certificateholder or Certificate Owner desiring
A-3-4
to effect a transfer of this Certificate or any interest herein shall, and does
hereby agree to, indemnify the Depositor, the Trustee, the Certificate
Administrator, the Tax Administrator, each of the Master Servicers, each of the
Special Servicers, the Fiscal Agent and the Certificate Registrar against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws or the provisions described in the
six preceding paragraphs.
No transfer of this Certificate or any interest herein shall be made except
to a Qualified Institutional Buyer. The Certificate Registrar shall refuse to
register the transfer of this Certificate unless it has received from the
prospective Transferee a certification, substantially in the form attached as
Annex 1 or Annex 2 to Exhibit E-2A to the Agreement, to the effect that such
prospective Transferee is a Qualified Institutional Buyer.
No transfer of this Certificate or any interest herein shall be made (A) to
any retirement plan or other employee benefit plan or arrangement, including
individual retirement accounts and annuities, ▇▇▇▇▇ plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. Except in limited circumstances, the
Certificate Registrar shall refuse to register the transfer of this Certificate
unless it has received from the prospective Transferee either (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) a certification
to the effect that the purchase and holding of this Certificate by such
prospective Transferee is exempt from the prohibited transaction provisions of
Sections 406 and 407 of ERISA and Section 4975 of the Code under Sections I and
III of Prohibited Transaction Class Exemption 95-60; or (iii) a certification of
facts and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Trustee that such transfer will not result in a violation of
Section 406 or 407 of ERISA or Section 4975 of the Code or result in the
imposition of an excise tax under Section 4975 of the Code. It is hereby
acknowledged that the form of certification attached to the Agreement as Exhibit
F-1 is acceptable for purposes of the preceding sentence.
If a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
acknowledgments, representations, warranties, certifications and/or agreements
with respect to each such account described above in this Certificate.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
A-3-5
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Certificate, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
The Depositor, the Master Servicer, each of the Special Servicers, the
Trustee, the Certificate Administrator, the Tax Administrator, the Fiscal Agent,
the Certificate Registrar and any agent of the Depositor, the Master Servicer,
either Special Servicer, the Trustee, the Certificate Administrator, the Tax
Administrator, the Fiscal Agent or the Certificate Registrar may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Master Servicer, either Special
Servicer, the Trustee, the Certificate Administrator, the Tax Administrator, the
Fiscal Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund and (ii) the purchase by the
Master Servicer, either Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, either Special Servicer or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Certificates; however, such right to purchase is subject to the aggregate
Stated Principal Balance of the Mortgage Pool at the time of purchase being less
than 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, each of the Special Servicers,
the Trustee, the Certificate Administrator, the Tax Administrator and the Fiscal
Agent with the consent of the Holders of Certificates entitled to not less than
51% of the Voting Rights allocated to all of the Classes materially affected by
the amendment and, if affected by the amendment, the RREEF Textron B-Note
Holder. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including
A-3-6
any amendment necessary to maintain the status of any REMIC Pool as a REMIC,
without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the laws of the
State of New York applicable to agreements negotiated, made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-3-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed on its behalf by the Certificate Registrar.
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
not in its individual capacity but solely as
Certificate Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class V Certificates referred to in the
within-mentioned Agreement.
Dated:
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
not in its individual capacity but solely as
Certificate Registrar
By:____________________________________
Authorized Representative
A-3-8
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ________________________________________________________________________
_____________________________________________________________________________
(please print or typewrite name and address including postal
zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:____________________________________________________________
______________________________________________________________________________
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to______________________________________________
for the account of_____________________________________________________________.
Distributions made by check (such check to be made payable to ____________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by______________________________, the Assignee
named above, or __________________________________________________, as its
agent.
A-3-9
EXHIBIT B
LETTERS OF REPRESENTATIONS AMONG DEPOSITOR,
CERTIFICATE ADMINISTRATOR AND INITIAL DEPOSITORY
(DEPOSITORY TRUST COMPANY LOGO)
Book-Entry-Only Collateralized Mortgage Obligations (CMOs) --
Without Owner Option to Redeem/Pass-Through Securities/
and Asset-Backed Securities
LETTER OF REPRESENTATIONS
[To be Completed by Issuer and Agent]
Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
---------------------------------------------------
[Name of Issuer]
▇▇▇▇▇ Fargo Bank Minnesota, National Association
----------------------------------------------------
[Name of Agent]
October 3, 2002
----------------
[Date]
Attention: General Counsel's Office
THE DEPOSITORY TRUST COMPANY
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
RE: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
---------------------------------------------------------------
Commercial Mortgage Pass-Through Certificates, Series 2002-PBW1
---------------------------------------------------------------
Class A-1, Class A-2, Class B, Class C Certificates
---------------------------------------------------------------
[Issue description (the "Securities")]
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain matters
relating to the Securities. Agent shall act as trustee, paying agent, fiscal
agent, or other such agent of Issuer with respect to the Securities. The
Securities have been issued pursuant to a trust indenture, trust agreement,
B-1
pooling and servicing agreement or other such document authorizing the issuance
of the Securities dated October 1, 2002 (the "Document"). *Please see below.
["Underwriter/Placement Agent]
*Bear ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated and ▇▇▇▇▇ Fargo Brokerage Services, LLC
**All obligations hereunder of the Issuer will be performed by Bear ▇▇▇▇▇▇▇
Commercial Mortgage Securities Inc. as Depositor or the Depositor will
cause the Issuer to perform such obligations
is distributing the Securities through The Depository Trust Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit at DTC, and
to act in accordance with its Rules with respect to the Securities, Issuer and
Agent make the following representations to DTC:
1. Prior to closing on the Securities on October 3, 2002 there shall be
deposited with DTC one or more Security certificates registered in the name of
DTC's nominee, Cede & Co., for each stated maturity of the Securities in the
face amounts set forth on Schedule A hereto, the total of which represents 100%
of the principal amount of such Securities. If, however, the aggregate
principal amount of any maturity exceeds $400 million, one certificate shall be
issued with respect to each $400 million of principal amount and an additional
certificate shall be issued with respect to any remaining principal amount.
Each Security certificate shall bear the following legend:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to Issuer 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 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.
Issuer Represents:
[The Security certificate(s) shall remain in Agent's custody as a "Balance
Certificate" subject to the provisions of the Balance Certificate Agreement
between Agent and DTC currently in effect.
On each day on which Agent is open for business and on which it receives
an instruction originated by a DTC participant ("Participant") through DTC's
Deposit/Withdrawal at Custodian ("DWAC") system to increase the Participant's
account by a specified number of Securities (a "Deposit Instruction"), Agent
shall, no later than 6:30 p.m. (Eastern Time) that day, either approve or
cancel the Deposit Instruction through the DWAC system.
On each day on which Agent is open for business and on which it receives
an instruction originated by Participant through the DWAC system to decrease
the Participant's account by a specified number of Securities (a "Withdrawal
Instruction"), Agent shall, no later than 6:30 p.m. (Eastern Time) that day,
either approve or cancel the Withdrawal Instruction through the DWAC system.
B-2
Agent agrees that its approval of a Deposit or Withdrawal Instruction shall
be deemed to be the receipt by DTC of a new reissued or reregistered
certificated Security on registration of transfer to the name of Cede & Co. for
the quantity of Securities evidenced by the Balance Certificate after the
Deposit or Withdrawal Instruction is effected.]
2. Issuer: (a) understands that DTC has no obligation to, and will not,
communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
acknowledges that neither DTC's Participants nor any person having an interest
in the Securities shall be deemed to have notice of the provisions of the
Security certificates by virtue of submission of such certificate(s) to DTC.
3. In the event of any solicitation of consents from or voting by
holders of the Securities, Issuer or Agent shall establish a record date for
such purposes (with no provision for revocation of consents or votes by
subsequent holders) and shall send notice of such record date to DTC no fewer
than 15 calendar days in advance of such record date. Notices to DTC pursuant
to this Paragraph by telecopy shall be directed to DTC's Reorganization
Department, Proxy Unit at (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇. If the party
sending the notice does not receive a telecopy receipt from DTC confirming that
the notice has been received, such party shall telephone (▇▇▇) ▇▇▇-▇▇▇▇.
Notices to DTC pursuant to this Paragraph, by mail or by any other means, shall
be sent to:
Supervisor, Proxy Unit
Reorganization Department
The Depository Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
4. In the event of a full or partial redemption, Issuer or Agent shall
send a notice to DTC specifying: (a) the amount of the redemption or refunding;
(b) in the case of refunding, the maturity date(s) established under the
refunding; and (c) the date such notice is to be distributed to Security
holders (the "Publication Date"). Such notice shall be sent to DTC by a secure
means (e.g., legible telecopy, registered or certified mail, overnight
delivery) in a timely manner designed to assure that such notice is in DTC's
possession no later than the close of business on the business day before or,
if possible, two business days before the Publication Date. Issuer or Agent
shall forward such notice either in a separate secure transmission for each
CUSIP number or in a secure transmission for multiple CUSIP numbers (if
applicable) which includes a manifest or list of each CUSIP number submitted in
that transmission. (The party sending such notice shall have a method to verify
subsequently the use of such means and the timeliness of such notice.) The
Publication Date shall be no fewer than 30 days nor more than 60 days prior to
the redemption date or, in the case of an advance refunding, the date that the
proceeds are deposited in escrow. Notices to DTC pursuant to this Paragraph by
telecopy shall be directed to DTC's Call Notification Department at (516)
227-4164 or (▇▇▇) ▇▇▇-▇▇▇▇. If the party sending the notice does not receive a
telecopy receipt from DTC confirming that the notice has been received, such
party shall telephone (▇▇▇) ▇▇▇-▇▇▇▇. Notices to DTC pursuant to this
Paragraph, by mail or by any other means, shall be sent to:
B-3
Manager, Call Notification Department
The Depository Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
5. In the event of an invitation to tender the Securities (including
mandatory tenders, exchanges, and capital changes), notice by Issuer or Agent to
Security holders shall be sent to DTC specifying the terms of the tender and the
Publication Date of such notice. Such notice shall be sent to DTC by a secure
means (e.g., legible telecopy, registered or certified mail, overnight delivery)
in a timely manner designed to assure that such notice is in DTC's possession no
later than the close of business on the business day before or, if possible, two
business days before the Publication Date. Issuer or Agent shall forward such
notice either in a separate secure transmission for each CUSIP number or in a
secure transmission for multiple CUSIP numbers (if applicable) which includes a
manifest or list of each CUSIP number submitted in that transmission. (The party
sending such notice shall have a method to verify subsequently the use and
timeliness of such notice.) Notices to DTC pursuant to this Paragraph and
notices of other corporate actions by telecopy shall be directed to DTC's
Reorganization Department at (▇▇▇) ▇▇▇-▇▇▇▇. If the party sending the notice
does not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (▇▇▇) ▇▇▇-▇▇▇▇. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
6. It is understood that if the Security holders shall at any time have
the right to tender the Securities to Issuer and require that Issuer repurchase
such holders' Securities pursuant to the Document and Cede & Co., as nominee of
DTC, or its registered assigns, as the record owner, is entitled to tender the
Securities, such tenders will be effected by means of DTC's Repayment Option
Procedures. Under the Repayment Option Procedures, DTC shall receive, during
the applicable tender period, instructions from its Participants to tender
Securities for purchase. Issuer and Agent agree that such tender for purchase
may be made by DTC by means of a book-entry credit of such Securities to the
account of Agent, provided that such credit is made on or before the final day
of the applicable tender period. DTC agrees that promptly after the recording
of any such book-entry credit, it will provide to Agent an Agent Receipt and
Confirmation or the equivalent, in accordance with the Repayment Option
Procedures, identifying the Securities and the aggregate principal amount
thereof as to which such tender for purchase has been made.
Agent shall send DTC notice regarding such optional tender by hand or by a
secure means (e.g., legible facsimile transmission, registered or certified
mail, overnight delivery) in a timely manner designed to assure that such
notice is in DTC's possession no later than the close of business two business
days before the Publication Date. The Publication Date shall be no fewer than
15 days prior to the expiration date of the applicable tender period. Such
notice shall state whether any partial redemption of the Securities is
scheduled to occur during the applicable optional tender
B-4
period. Notices to DTC pursuant to this Paragraph by telecopy shall be directed
to DTC's Put Bond Unit at (▇▇▇)▇▇▇-▇▇▇▇. If the party sending the notice does
not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (▇▇▇)▇▇▇-▇▇▇▇. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Supervisor, Put Bond Unit
Reorganization Department
The Depository Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
7. All notices and payment advices sent to DTC shall contain the CUSIP
number of the Securities.
8. Issuer or Agent shall send DTC written notice with respect to the dollar
amount per $1,000 original face value (or other minimum authorized denomination
if less than $1,000 face value) payable on each payment date allocated as to the
interest and principal portions thereof preferably five, but no fewer than two,
business days prior to such payment date. Such notices, which shall also contain
the current pool factor, any special adjustments to principal/interest rates
(e.g., adjustments due to deferred interest or shortfall), and Agent contact's
name and telephone number, shall be sent by telecopy to DTC's Dividend
Department at (▇▇▇) ▇▇▇ ▇▇▇▇, and receipt of such notices shall be confirmed by
telephoning (▇▇▇) ▇▇▇-▇▇▇▇. Notices to DTC, pursuant to this Paragraph, by mail
or by any other means, shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
9. Issuer represents: [The interest accrual period is record date to
record date.]
10. Issuer or Agent shall provide a written notice of interest payment
information, including the stated coupon rate information, to DTC as soon as the
information is available. Issuer or Agent shall provide such notice directly to
DTC electronically, as previously arranged by Issuer or Agent and DTC. If
electronic transmission has not been arranged, absent any other arrangements
between Issuer or Agent and DTC, such information shall be sent by telecopy to
DTC's Dividend Department at (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇. If the party
sending the notice does not receive a telecopy receipt from DTC confirming that
the notice has been received, such party shall telephone (▇▇▇) ▇▇▇-▇▇▇▇. Notices
to DTC pursuant to this Paragraph, by mail or by any other means, shall be sent
to DTC's Dividend Department as indicated in Paragraph 8.
11. Interest payments and principal payments that are part of periodic
principal-and-interest payments shall be received by Cede & Co., as nominee of
DTC, or its registered assigns, in same-day funds no later than 2:30 p.m.
(Eastern Time) on each payment date. Issuer shall remit by 1:00 p.m. (Eastern
B-5
Time) on the payment date all such interest payments due Agent, or at such
earlier time as may be required by Agent to guarantee that DTC shall receive
payment in same-day funds no later than 2:30 p.m. (Eastern Time) on the payment
date. Absent any other arrangements between Issuer or Agent and DTC, such funds
shall be wired to the Dividend Deposit Account number that will be stamped on
the signature page hereof at the time DTC executes this Letter of
Representations.
12. Issuer or Agent shall provide DTC's Dividend Department, no later
than 12:00 noon (Eastern Time) on the payment date, automated notification of
CUSIP-level detail. If the circumstances prevent the funds paid to DTC from
equaling the dollar amount associated with the detail payments by 12:00 noon
(Eastern Time), Issuer or Agent must provide CUSIP-level reconciliation to DTC
no later than 2:30 p.m. (Eastern Time). Reconciliation must be provided by
either automated means or written format. Such reconciliation notice, if sent
by telecopy, shall be directed to DTC Dividend Department at (▇▇▇) ▇▇▇-▇▇▇▇ and
receipt of such reconciliation notice shall be confirmed by telephoning (212)
855-4430.
13. Maturity and redemption payments allocated with respect to each CUSIP
number shall be received by Cede & Co., as nominee of DTC, or its registered
assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on the
payment date. Issuer shall remit by 1:00 p.m. (Eastern Time) on the payment
date all such maturity and redemption payments due Agent, or at such earlier
time as required by Agent to guarantee that DTC shall receive payment in
same-day funds no later than 2:30 p.m. (Eastern Time) on the payment date.
Absent any other arrangements between Issuer or Agent and DTC, such funds shall
be wired to the Redemption Deposit Account number that will be stamped on the
signature page hereof at the time DTC executes this Letter of Representations.
14. Principal payments (plus accrued interest, if any) as the result of
optional tenders for purchase effected by means of DTC's Repayment Option
Procedures shall be received by Cede & Co., as nominee of DTC, or its
registered assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on
the payment date. Issuer shall remit by 1:00 p.m. (Eastern Time) on the payment
date all such reorganization payments due Agent, or at such earlier time as
required by Agent to guarantee that DTC shall receive payment in same-day funds
no later than 2:30 p.m. (Eastern Time) on the payment date. Absent any other
arrangements between Issuer or Agent and DTC, such funds shall be wired to the
Reorganization Deposit Account number that will be stamped on the signature
page hereof at the time DTC executes this Letter of Representations.
15. Agent shall send DTC all periodic certificate holders remittance
reports with respect to the Securities. If sent by facsimile transmission, such
reports shall be sent to (▇▇▇) ▇▇▇-▇▇▇▇. If the party sending the report does
not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (▇▇▇) ▇▇▇-▇▇▇▇.
16. DTC may direct Issuer or Agent to use any other number or address as
the number or address to which notices or payments of interest or principal may
be sent.
17. In the event of a redemption, acceleration, or any other similar
transaction (e.g., tender made and accepted in response to Issuer's or Agent's
invitation) necessitating a reduction in the aggregate principal amount of
Securities outstanding or an advance refunding of part of the Securities
B-6
outstanding, DTC, in its discretion: (a) may request Issuer or Agent to issue
and authenticate a new Security certificate; or (b) may make an appropriate
notation on the Security certificate indicating the date and amount of such
reduction in principal except in the case of final maturity, in which case the
certificate will be presented to Issuer or Agent prior to payment, if required.
18. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities, Issuer or Agent
shall notify DTC of the availability of certificates. In such event, Issuer or
Agent shall issue, transfer, and exchange certificates in appropriate amounts,
as required by DTC and others.
19. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Agent (at which time DTC will confirm with Issuer or Agent the aggregate
principal amount of Securities outstanding). Under such circumstances, at DTC's
request Issuer and Agent shall cooperate fully with DTC by taking appropriate
action to make available one or more separate certificates evidencing Securities
to any Participant having Securities credited to its DTC accounts.
20. Nothing herein shall be deemed to require Agent to advance funds on
behalf of Issuer.
21. This Letter of Representations may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts together shall constitute but one and the same
instrument.
22. This Letter of Representations shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to
principles of conflicts of law.
23. The sender of each notice delivered to DTC pursuant to this Letter of
Representations is responsible for confirming that such notice was properly
received by DTC.
24. Issuer recognizes that DTC does not in any way undertake to, and shall
not have any responsibility to, monitor or ascertain the compliance of any
transactions in the Securities with the following, as amended from time to time;
(a) any exemptions from registration under the Securities Act of 1933; (b) the
Investment Company Act of 1940; (c) the Employee Retirement Income Security Act
of 1974; (d) the Internal Revenue Code of 1986; (e) any rules of any
self-regulatory organizations (as defined under the Securities Exchange Act of
1934); or (f) any other local, state, or federal laws or regulations thereunder.
25. Issuer hereby authorizes DTC to provide to Agent listings of
Participants' holdings, known as Securities Position Listings ("SPLs") with
respect to the Securities from time to time at the request of the Agent. DTC
charges a fee for such SPLs. This authorization, unless revoked by Issuer, shall
continue with respect to the Securities while any Securities are on deposit
at DTC, until and unless Agent shall no longer be acting. In such event, Issuer
shall provide DTC with similar evidence, satisfactory to DTC, of the
authorization of any successor thereto so to act. Requests for SPLs shall be
sent by telecopy to the Proxy Unit of DTC's Reorganization Department at (212)
855-5181 or (▇▇▇) ▇▇▇-▇▇▇▇. Receipt of such requests shall be confirmed by
B-7
telephoning (▇▇▇) ▇▇▇-▇▇▇▇. Requests for SPLs, sent by mail or by any other
means, shall be directed to the address indicated in Paragraph 3.
26. Issuer and Agent shall comply with the applicable requirements stated
in DTC's Operational Arrangements, as they may be amended from time to time.
DTC's Operational Arrangements are posted on DTC's website at "▇▇▇.▇▇▇.▇▇▇."
27. The following rider(s), attached hereto, are hereby incorporated into
this Letter of Representations:
Notes:
------
A. If there is an Agent (as defined in this
Letter of Representations), Agent as well as
Issuer must sign this Letter. If there is no
Agent, in signing this Letter Issuer itself
undertakes to perform all of the obligations
set forth herein.
B. Schedule B contains statements that DTC
believes accurately describe DTC, the method
of effecting book-entry transfers of securities
distributed through DTC, and certain related
matters.
Very truly yours,
Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
-------------------------------------------------
[Issuer]
By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------------------
[Authorized Officer's Signature]
▇▇▇▇▇ Fargo Bank Minnesota, National Association
------------------------------------------------
[Agent]
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------------
[Authorized Officer's Signature]
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
cc: Underwriter/Placement Agent
Underwriter's/Placement Agent's Counsel
B-8
SCHEDULE A
----------
Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates, Series 2002-PBW1
(Describe Issue)
Certificate Initial
Principal Amount or Pass-Through
Class CUSIP Number Notional Amount Maturity(1) Rate(2)
------------------------------- ------------------ -------------------------------- ---------------- ------------------------------
Class A-1 07383F MM 7 $371,811,000 December 2011 3.97%
Class A-2 07383F MM 5 $385,855,000 August 2012 4.72%
Class B 07383F MP 0 $26,483,000 September 2012 4.87%
Class C 07383F MQ 8 $31,089,000 September 2012 4.97%
------------------------------
(1) The maturity date in the specified month will be the 11th calendar day of such month or, if such 11th calendar day is not a
business day, then the next succeeding business day.
(2) Approximate.
B-9
SCHEDULE B
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(Prepared by DTC -- bracketed material may be applicable only to certain issues)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities
will be issued as fully-registered securities registered in the name of Cede &
Co. (DTC's partnership nominee) or such other name as may be requested by an
authorized representative of DTC. One fully-registered Security certificate will
be issued for [each issue of] the Securities, [each] in the aggregate principal
amount of such issue, and will be deposited with DTC. [If, however, the
aggregate principal amount of [any] issue exceeds $400 million, one certificate
will be issued with respect to each $400 million of principal amount and an
additional certificate will be issued with respect to any remaining principal
amount of such issue.]
2. DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within
the meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Direct Participants")
deposit with DTC. DTC also facilitates the settlement among Direct
Participants of securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry changes in
Direct Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. Direct Participants include securities
brokers and dealers, banks, trust companies, clearing corporations, and
certain other organizations. DTC is owned by a number of its Direct Participants
and by the New York Stock Exchange, Inc., the American Stock Exchange LLC, and
the National Association of Securities Dealers, Inc. Access to the DTC system
is also available to others such as securities brokers and dealers, banks, and
trust companies that clear through or maintain a custodial relationship with a
Direct Participant, either directly or indirectly ("Indirect Participants").
The Rules applicable to DTC and its Direct and Indirect Participants are on
file with the Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Securities on
DTC's records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Direct and Indirect Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interests in Securities, except in the event that use of the book-entry system
for the Securities is discontinued.
4. To facilitate subsequent transfers, all Securities deposited by Direct
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. or such other name as may be requested by an authorized
representative of DTC. The deposit of Securities with DTC and their
registration in the name of Cede & Co. or such other nominee do not effect any
change in beneficial ownership. DTC has no knowledge of the actual Beneficial
Owners of the Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Securities are credited, which may or may
not be the Beneficial Owners. The Direct and Indirect Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
5. Conveyance of notices and other communications by DTC to Direct
B-10
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time. [Beneficial Owners of Securities may wish to
take certain steps to augment transmission to them of notices of significant
events with respect to the Securities, such as redemptions, tenders, defaults,
and proposed amendments to the security documents. Beneficial Owners of
Securities may wish to ascertain that the nominee holding the Securities for
their benefit has agreed to obtain and transmit notices to Beneficial Owners, or
in the alternative, Beneficial Owners may wish to provide their names and
addresses to the registrar and request that copies of the notices be provided
directly to them.]
[6. Redemption notices shall be sent to DTC. If less than all of the
Securities within an issue are being redeemed, DTC's practice is to determine
by lot the amount of the interest of each Direct Participant in such issue to
be redeemed.]
7. Neither DTC nor Cede & Co. (nor such other DTC nominee) will consent or
vote with respect to the Securities. Under its usual procedures, DTC mails an
Omnibus Proxy to Issuer as soon as possible after the record date. The Omnibus
Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Securities are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
8. Redemption proceeds, distributions, and divided payments on the
Securities will be made to Cede & Co., or such other nominee as may be
requested by an authorized representative of DTC. DTC's practice is to credit
Direct Participants' accounts, upon DTC's receipt of funds and corresponding
detail information from Issuer or Agent on payable date in accordance with
their respective holdings shown on DTC's records. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of
such Participant and not of DTC, Agent, or Issuer, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment of
redemption proceeds, distributions, and dividends to Cede & Co. (or such other
nominee as may be requested by an authorized representative of DTC) is the
responsibility of Issuer or Agent, disbursement of such payments to Direct
Participants shall be the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners shall be the responsibility of Direct and
Indirect Participants.
[9. A Beneficial Owner shall give notice to elect to have its Securities
purchased or tendered, through its Participant, to [Tender/Remarketing] Agent,
and shall effect delivery of such Securities by causing the Direct Participant
to transfer the Participant's interest in the Securities, on DTC's records, to
[Tender/Remarketing] Agent. The requirement for physical delivery of Securities
in connection with an optional tender or a mandatory purchase will be deemed
satisfied when the ownership rights in the Securities are transferred by Direct
Participants on DTC's records and followed by a book-entry credit of tendered
Securities to [Tender/Remarketing] Agent's DTC account.]
10. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to
Issuer or Agent. Under such circumstances, in the event that a successor
securities depository is not obtained, Security certificates are required to be
printed and delivered.
11. Issuer may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that Issuer believes to be reliable, but
Issuer takes no responsibility for the accuracy thereof.
B-11
EXHIBIT-B
LETTERS OF REPRESENTATIONS AMONG DEPOSTOR,
CERTIFICATE ADMINISTRATOR AND INITIAL DEPOSITORY
(DEPOSITORY TRUST COMPANY LOGO)
Book-Entry-Only Collateralized Mortgage Obligations (CMOs) --
Without Owner Option to Redeem/Pass-Through Securities/
and Asset-Backed Securities
LETTER OF REPRESENTATIONS
[To be Completed by Issuer and Agent]
Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities, Inc.
----------------------------------------------------
[Name of Issuer]
▇▇▇▇▇ Fargo Bank Minnesota, National Association
----------------------------------------------------
[Name of Agent]
October 3, 2002
----------------
[Date]
Attention: General Counsel's Office
THE DEPOSITORY TRUST COMPANY
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
RE: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
---------------------------------------------------------------
Commercial Mortgage Pass-Through Certificates, Series 2002-PBW1
---------------------------------------------------------------
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 and
---------------------------------------------------------------
Class P
---------------------------------------------------------------
[Issue description (the "Securities")]
B-12
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain matters
relating to the Securities. Agent shall act as trustee, paying agent, fiscal
agent, or other such agent of Issuer with respect to the Securities. The
Securities have been issued pursuant to a trust indenture, trust agreement,
pooling and servicing agreement or other such document authorizing the issuance
of the Securities dated October 1, 2002 (the "Document"). *Please see below.
["Underwriter/Placement Agent]
*Bear ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated and ▇▇▇▇▇ Fargo Brokerage Services, LLC
**All obligations hereunder of the Issuer will be performed by Bear ▇▇▇▇▇▇▇
Commercial Mortgage Securities Inc. as Depositor or the Depositor will
cause the Issuer to perform such obligations
is distributing the Securities through The Depository Trust Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit at DTC, and
to act in accordance with its Rules with respect to the Securities, Issuer and
Agent make the following representations to DTC:
1. Prior to closing on the Securities on December 27, 2001 there shall be
deposited with DTC one or more Security certificates registered in the name of
DTC's nominee, Cede & Co., for each stated maturity of the Securities in the
face amounts set forth on Schedule A hereto, the total of which represents 100%
of the principal amount of such Securities. If, however, the aggregate
principal amount of any maturity exceeds $400 million, one certificate shall be
issued with respect to each $400 million of principal amount and an additional
certificate shall be issued with respect to any remaining principal amount.
Each Security certificate shall bear the following legend:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to Issuer 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 is made to Cede & Co. or to such
B-13
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.
Issuer Represents:
[The Security certificate(s) shall remain in Agent's custody as a "Balance
Certificate" subject to the provisions of the Balance Certificate Agreement
between Agent and DTC currently in effect.
On each day on which Agent is open for business and on which it receives
an instruction originated by a DTC participant ("Participant") through DTC's
Deposit/Withdrawal at Custodian ("DWAC") system to increase the Participant's
account by a specified number of Securities (a "Deposit Instruction"), Agent
shall, no later than 6:30 p.m. (Eastern Time) that day, either approve or
cancel the Deposit Instruction through the DWAC system.
On each day on which Agent is open for business and on which it receives
an instruction originated by Participant through the DWAC system to decrease
the Participant's account by a specified number of Securities (a "Withdrawal
Instruction"), Agent shall, no later than 6:30 p.m. (Eastern Time) that day,
either approve or cancel the Withdrawal Instruction through the DWAC system.
Agent agrees that its approval of a Deposit or Withdrawal Instruction shall
be deemed to be the receipt by DTC of a new reissued or reregistered
certificated Security on registration of transfer to the name of Cede & Co. for
the quantity of Securities evidenced by the Balance Certificate after the
Deposit or Withdrawal Instruction is effected.]
2. Issuer: (a) understands that DTC has no obligation to, and will not,
communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
acknowledges that neither DTC's Participants nor any person having an interest
in the Securities shall be deemed to have notice of the provisions of the
Security certificates by virtue of submission of such certificate(s) to DTC.
3. In the event of any solicitation of consents from or voting by
holders of the Securities, Issuer or Agent shall establish a record date for
such purposes (with no provision for revocation of consents or votes by
subsequent holders) and shall send notice of such record date to DTC no fewer
than 15 calendar days in advance of such record date. Notices to DTC pursuant
to this Paragraph by telecopy shall be directed to DTC's Reorganization
Department, Proxy Unit at (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇. If the party
sending the notice does not receive a telecopy receipt from DTC confirming that
the notice has been received, such party shall telephone (▇▇▇) ▇▇▇-▇▇▇▇.
Notices to DTC pursuant to this Paragraph, by mail or by any other means, shall
be sent to:
Supervisor, Proxy Unit
Reorganization Department
The Depository Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
4. In the event of a full or partial redemption, Issuer or Agent shall
B-14
send a notice to DTC specifying: (a) the amount of the redemption or refunding;
(b) in the case of refunding, the maturity date(s) established under the
refunding; and (c) the date such notice is to be distributed to Security
holders (the "Publication Date"). Such notice shall be sent to DTC by a secure
means (e.g., legible telecopy, registered or certified mail, overnight
delivery) in a timely manner designed to assure that such notice is in DTC's
possession no later than the close of business on the business day before or,
if possible, two business days before the Publication Date. Issuer or Agent
shall forward such notice either in a separate secure transmission for each
CUSIP number or in a secure transmission for multiple CUSIP numbers (if
applicable) which includes a manifest or list of each CUSIP number submitted in
that transmission. (The party sending such notice shall have a method to verify
subsequently the use of such means and the timeliness of such notice.) The
Publication Date shall be no fewer than 30 days nor more than 60 days prior to
the redemption date or, in the case of an advance refunding, the date that the
proceeds are deposited in escrow. Notices to DTC pursuant to this Paragraph by
telecopy shall be directed to DTC's Call Notification Department at (516)
227-4164 or (▇▇▇) ▇▇▇-▇▇▇▇. If the party sending the notice does not receive a
telecopy receipt from DTC confirming that the notice has been received, such
party shall telephone (▇▇▇) ▇▇▇-▇▇▇▇. Notices to DTC pursuant to this
Paragraph, by mail or by any other means, shall be sent to:
Manager, Call Notification Department
The Depository Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
5. In the event of an invitation to tender the Securities (including
mandatory tenders, exchanges, and capital changes), notice by Issuer or Agent to
Security holders shall be sent to DTC specifying the terms of the tender and the
Publication Date of such notice. Such notice shall be sent to DTC by a secure
means (e.g., legible telecopy, registered or certified mail, overnight delivery)
in a timely manner designed to assure that such notice is in DTC's possession no
later than the close of business on the business day before or, if possible, two
business days before the Publication Date. Issuer or Agent shall forward such
notice either in a separate secure transmission for each CUSIP number or in a
secure transmission for multiple CUSIP numbers (if applicable) which includes a
manifest or list of each CUSIP number submitted in that transmission. (The party
sending such notice shall have a method to verify subsequently the use and
timeliness of such notice.) Notices to DTC pursuant to this Paragraph and
notices of other corporate actions by telecopy shall be directed to DTC's
Reorganization Department at (▇▇▇) ▇▇▇-▇▇▇▇. If the party sending the notice
does not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (▇▇▇) ▇▇▇-▇▇▇▇. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
6. It is understood that if the Security holders shall at any time have
the right to tender the Securities to Issuer and require that Issuer repurchase
such holders' Securities pursuant to the Document and Cede & Co., as nominee of
DTC, or its registered assigns, as the record owner, is entitled to tender the
B-15
Securities, such tenders will be effected by means of DTC's Repayment Option
Procedures. Under the Repayment Option Procedures, DTC shall receive, during
the applicable tender period, instructions from its Participants to tender
Securities for purchase. Issuer and Agent agree that such tender for purchase
may be made by DTC by means of a book-entry credit of such Securities to the
account of Agent, provided that such credit is made on or before the final day
of the applicable tender period. DTC agrees that promptly after the recording
of any such book-entry credit, it will provide to Agent an Agent Receipt and
Confirmation or the equivalent, in accordance with the Repayment Option
Procedures, identifying the Securities and the aggregate principal amount
thereof as to which such tender for purchase has been made.
Agent shall send DTC notice regarding such optional tender by hand or by a
secure means (e.g., legible facsimile transmission, registered or certified
mail, overnight delivery) in a timely manner designed to assure that such notice
is in DTC's possession no later than the close of business two business days
before the Publication Date. The Publication Date shall be no fewer than 15 days
prior to the expiration date of the applicable tender period. Such notice shall
state whether any partial redemption of the Securities is scheduled to occur
during the applicable optional tender period. Notices to DTC pursuant to this
Paragraph by telecopy shall be directed to DTC's Put Bond Unit at (▇▇▇)▇▇▇-▇▇▇▇.
If the party sending the notice does not receive a telecopy receipt from DTC
confirming that the notice has been received, such party shall telephone
(▇▇▇)▇▇▇-▇▇▇▇. Notices to DTC pursuant to this Paragraph, by mail or by any
other means, shall be sent to:
Supervisor, Put Bond Unit
Reorganization Department
The Depository Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
7. All notices and payment advices sent to DTC shall contain the CUSIP
number of the Securities.
8. Issuer or Agent shall send DTC written notice with respect to the dollar
amount per $1,000 original face value (or other minimum authorized denomination
if less than $1,000 face value) payable on each payment date allocated as to the
interest and principal portions thereof preferably five, but no fewer than two,
business days prior to such payment date. Such notices, which shall also contain
the current pool factor, any special adjustments to principal/interest rates
(e.g., adjustments due to deferred interest or shortfall), and Agent contact's
name and telephone number, shall be sent by telecopy to DTC's Dividend
Department at (▇▇▇) ▇▇▇ ▇▇▇▇, and receipt of such notices shall be confirmed by
telephoning (▇▇▇) ▇▇▇-▇▇▇▇. Notices to DTC, pursuant to this Paragraph, by mail
or by any other means, shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
9. Issuer represents: [The interest accrual period is record date to
record date.]
B-16
10. Issuer or Agent shall provide a written notice of interest payment
information, including the stated coupon rate information, to DTC as soon as the
information is available. Issuer or Agent shall provide such notice directly to
DTC electronically, as previously arranged by Issuer or Agent and DTC. If
electronic transmission has not been arranged, absent any other arrangements
between Issuer or Agent and DTC, such information shall be sent by telecopy to
DTC's Dividend Department at (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇. If the party
sending the notice does not receive a telecopy receipt from DTC confirming that
the notice has been received, such party shall telephone (▇▇▇) ▇▇▇-▇▇▇▇. Notices
to DTC pursuant to this Paragraph, by mail or by any other means, shall be sent
to DTC's Dividend Department as indicated in Paragraph 8.
11. Interest payments and principal payments that are part of periodic
principal-and-interest payments shall be received by Cede & Co., as nominee of
DTC, or its registered assigns, in same-day funds no later than 2:30 p.m.
(Eastern Time) on each payment date. Issuer shall remit by 1:00 p.m. (Eastern
Time) on the payment date all such interest payments due Agent, or at such
earlier time as may be required by Agent to guarantee that DTC shall receive
payment in same-day funds no later than 2:30 p.m. (Eastern Time) on the payment
date. Absent any other arrangements between Issuer or Agent and DTC, such funds
shall be wired to the Dividend Deposit Account number that will be stamped on
the signature page hereof at the time DTC executes this Letter of
Representations.
12. Issuer or Agent shall provide DTC's Dividend Department, no later
than 12:00 noon (Eastern Time) on the payment date, automated notification of
CUSIP-level detail. If the circumstances prevent the funds paid to DTC from
equaling the dollar amount associated with the detail payments by 12:00 noon
(Eastern Time), Issuer or Agent must provide CUSIP-level reconciliation to DTC
no later than 2:30 p.m. (Eastern Time). Reconciliation must be provided by
either automated means or written format. Such reconciliation notice, if sent
by telecopy, shall be directed to DTC Dividend Department at (▇▇▇) ▇▇▇-▇▇▇▇ and
receipt of such reconciliation notice shall be confirmed by telephoning (212)
855-4430.
13. Maturity and redemption payments allocated with respect to each CUSIP
number shall be received by Cede & Co., as nominee of DTC, or its registered
assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on the
payment date. Issuer shall remit by 1:00 p.m. (Eastern Time) on the payment
date all such maturity and redemption payments due Agent, or at such earlier
time as required by Agent to guarantee that DTC shall receive payment in
same-day funds no later than 2:30 p.m. (Eastern Time) on the payment date.
Absent any other arrangements between Issuer or Agent and DTC, such funds shall
be wired to the Redemption Deposit Account number that will be stamped on the
signature page hereof at the time DTC executes this Letter of Representations.
14. Principal payments (plus accrued interest, if any) as the result of
optional tenders for purchase effected by means of DTC's Repayment Option
Procedures shall be received by Cede & Co., as nominee of DTC, or its
registered assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on
the payment date. Issuer shall remit by 1:00 p.m. (Eastern Time) on the payment
date all such reorganization payments due Agent, or at such earlier time as
required by Agent to guarantee that DTC shall receive payment in same-day funds
no later than 2:30 p.m. (Eastern Time) on the payment date. Absent any other
arrangements between Issuer or Agent and DTC, such funds shall be wired to the
B-17
Reorganization Deposit Account number that will be stamped on the signature
page hereof at the time DTC executes this Letter of Representations.
15. Agent shall send DTC all periodic certificate holders remittance
reports with respect to the Securities. If sent by facsimile transmission, such
reports shall be sent to (▇▇▇) ▇▇▇-▇▇▇▇. If the party sending the report does
not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (▇▇▇) ▇▇▇-▇▇▇▇.
16. DTC may direct Issuer or Agent to use any other number or address as
the number or address to which notices or payments of interest or principal may
be sent.
17. In the event of a redemption, acceleration, or any other similar
transaction (e.g., tender made and accepted in response to Issuer's or Agent's
invitation) necessitating a reduction in the aggregate principal amount of
Securities outstanding or an advance refunding of part of the Securities
outstanding, DTC, in its discretion: (a) may request Issuer or Agent to issue
and authenticate a new Security certificate; or (b) may make an appropriate
notation on the Security certificate indicating the date and amount of such
reduction in principal except in the case of final maturity, in which case the
certificate will be presented to Issuer or Agent prior to payment, if required.
18. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities, Issuer or Agent
shall notify DTC of the availability of certificates. In such event, Issuer or
Agent shall issue, transfer, and exchange certificates in appropriate amounts,
as required by DTC and others.
19. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Agent (at which time DTC will confirm with Issuer or Agent the aggregate
principal amount of Securities outstanding). Under such circumstances, at DTC's
request Issuer and Agent shall cooperate fully with DTC by taking appropriate
action to make available one or more separate certificates evidencing Securities
to any Participant having Securities credited to its DTC accounts.
20. Nothing herein shall be deemed to require Agent to advance funds on
behalf of Issuer.
21. This Letter of Representations may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts together shall constitute but one and the same
instrument.
22. This Letter of Representations shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to
principles of conflicts of law.
23. The sender of each notice delivered to DTC pursuant to this Letter of
Representations is responsible for confirming that such notice was properly
received by DTC.
24. Issuer recognizes that DTC does not in any way undertake to, and shall
not have any responsibility to, monitor or ascertain the compliance of any
transactions in the Securities with the following, as amended from time to time;
B-18
(a) any exemptions from registration under the Securities Act of 1933; (b) the
Investment Company Act of 1940; (c) the Employee Retirement Income Security Act
of 1974; (d) the Internal Revenue Code of 1986; (e) any rules of any
self-regulatory organizations (as defined under the Securities Exchange Act of
1934); or (f) any other local, state, or federal laws or regulations thereunder.
25. Issuer hereby authorizes DTC to provide to Agent listings of
Participants' holdings, known as Securities Position Listings ("SPLs") with
respect to the Securities from time to time at the request of the Agent. DTC
charges a fee for such SPLs. This authorization, unless revoked by Issuer, shall
continue with respect to the Securities while any Securities are on deposit
at DTC, until and unless Agent shall no longer be acting. In such event, Issuer
shall provide DTC with similar evidence, satisfactory to DTC, of the
authorization of any successor thereto so to act. Requests for SPLs shall be
sent by telecopy to the Proxy Unit of DTC's Reorganization Department at (212)
855-5181 or (▇▇▇) ▇▇▇-▇▇▇▇. Receipt of such requests shall be confirmed by
telephoning (▇▇▇) ▇▇▇-▇▇▇▇. Requests for SPLs, sent by mail or by any other
means, shall be directed to the address indicated in Paragraph 3.
26. Issuer and Agent shall comply with the applicable requirements stated
in DTC's Operational Arrangements, as they may be amended from time to time.
DTC's Operational Arrangements are posted on DTC's website at "▇▇▇.▇▇▇.▇▇▇."
27. The following rider(s), attached hereto, are hereby incorporated into
this Letter of Representations:
Rider A: Representation for Rule 144A Securities
-------------------------------------------------------------------------------
Rider B: Representations for Securities Eligible for Transfer Pursuant to
Regulation S
Notes:
------
A. If there is an Agent (as defined in this
Letter of Representations), Agent as well as
Issuer must sign this Letter. If there is no
Agent, in signing this Letter Issuer itself
undertakes to perform all of the obligations
set forth herein.
B. Schedule B contains statements that DTC
believes accurately describe DTC, the method
of effecting book-entry transfers of securities
distributed through DTC, and certain related
matters.
Very truly yours,
Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
-------------------------------------------------
[Issuer]
By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------------------
[Authorized Officer's Signature]
▇▇▇▇▇ Fargo Bank Minnesota, National Association
------------------------------------------------
[Agent]
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------------
[Authorized Officer's Signature]
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
cc: Underwriter/Placement Agent
Underwriter's/Placement Agent's Counsel
B-19
SCHEDULE A
----------
Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates, Series 2002-PBW1
(Describe Issue)
Certificate Initial
Principal Amount or Pass-Through
Class CUSIP Number Notional Amount Maturity(1) Rate(2)
------------------------------ -------------------- ------------------------------ --------------------- --------------------
Class X-1 (3)(4)(5) No. 1 07383F MR 6 $921,174,882 March 2017 0.23%
Class X-1 (5)(6) No. 2 U0743B ER 1 $0 March 2017 0.23%
Class X-2 (3)(4)(5) No. 1 07383F MS 4 $839,869,000 October 2010 2.51%
Class X-2 (5)6) No. 2 U0743B ES 9 $0 October 2010 2.51%
Class D (3)(5) No. 1 07383F MT 2 $8,060,000 September 2012 5.05%
Class D (5)(6) No. 2 U0743B ET 7 $0 September 2012 5.05%
Class E (3)(5) No. 1 07383F MU 9 $9,211,000 September 2012 5.44%
Class E (5)(6) No. 2 U0743B EU 4 $0 September 2012 5.44%
Class F (3)(5) No. 1 07383F MV 7 $13,817,000 September 2012 5.49%
Class F (5)(6) No. 2 U0743B EV 2 $0 September 2012 5.49%
Class G (3)(5) No. 1 07383F MW 5 $13,817,000 September 2012 5.83%
Class G (5)(6) No. 2 U0743B EW 0 $0 September 2012 5.83%
Class H (3)(5) No. 1 07383F MX 3 $16,120,000 September 2012 6.00%
Class H (5)(6) No. 2 U0743B EX 8 $0 September 2012 6.00%
Class J (3)(5) No. 1 07383F MY 1 $10,363,000 September 2012 6.00%
Class J (5)(6) No. 2 U0743B EY 6 $0 September 2012 6.00%
Class K (3)(5) No. 1 07383F MZ 8 $3,454,000 September 2012 6.00%
Class K (5)(6) No. 2 U0743B EZ 3 $0 September 2012 6.00%
Class L (3)(5) No. 1 07383F NA 2 $5,757,000 September 2012 6.00%
Class L (5)(6) No. 2 U0743B FA 7 $0 September 2012 6.00%
Class M (3)(5) No. 1 07383F NB 0 $9,211,000 October 2012 6.00%
Class M (5)(6) ▇▇. ▇ ▇▇▇▇▇▇ ▇▇ ▇ $0 October 2012 6.00%
Class N (3)(5) No. 1 07383F NC 8 $2,302,000 October 2012 6.00%
Class N (5)(6) No. 2 U0743B FC 3 $0 October 2012 6.00%
Class P (3)(5) No. 1 07383F ND 6 $13,824,882 March 2017 6.00%
Class P (5)(6) No. 2 U0743B FD 1 $0 March 2017 6.00%
------------------------------
(1) The maturity date in the specified month will be the 11th calendar day of such month or, if such 11th calendar day is not a
business day, then the next succeeding business day.
(2) Approximate.
(3) Rule 144A Securities.
(4) Notional Amount.
(5) At Closing. The combined principal amount or notional amount, as applicable, of the Rule 144A global notes and the
Regulation S global notes will not exceed $921,174,882 for the Class X-1 Certificates, $839,869,000 for the Class X-2
Certificates, $8,060,000 for the Class D Certificates, $9,211,000 for the Class E Certificates, $13,817,000 for the Class F
Certificates, $13,817,000 for the Class G Certificates, $16,120,000 for the Class H Certificates, $10,363,000 for the Class
J Certificates, $3,454,000 for the Class K Certificates, $5,757,000 for the Class L Certificates, $9,211,000 for the Class M
Certificates, $2,302,000 for the Class N Certificates and $13,824,882 for the Class P Certificates.
(6) Regulation S Securities.
B-20
SCHEDULE B
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(Prepared by DTC -- bracketed material may be applicable only to certain issues)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities
will be issued as fully-registered securities registered in the name of Cede &
Co. (DTC's partnership nominee) or such other name as may be requested by an
authorized representative of DTC. One fully-registered Security certificate will
be issued for [each issue of] the Securities, [each] in the aggregate principal
amount of such issue, and will be deposited with DTC. [If, however, the
aggregate principal amount of [any] issue exceeds $400 million, one certificate
will be issued with respect to each $400 million of principal amount and an
additional certificate will be issued with respect to any remaining principal
amount of such issue.]
2. DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within
the meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Direct Participants")
deposit with DTC. DTC also facilitates the settlement among Direct
Participants of securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry changes in
Direct Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. Direct Participants include securities
brokers and dealers, banks, trust companies, clearing corporations, and
certain other organizations. DTC is owned by a number of its Direct Participants
and by the New York Stock Exchange, Inc., the American Stock Exchange LLC, and
the National Association of Securities Dealers, Inc. Access to the DTC system
is also available to others such as securities brokers and dealers, banks, and
trust companies that clear through or maintain a custodial relationship with a
Direct Participant, either directly or indirectly ("Indirect Participants").
The Rules applicable to DTC and its Direct and Indirect Participants are on
file with the Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Securities on
DTC's records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
B-21
interests in the Securities are to be accomplished by entries made on the books
of Direct and Indirect Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interests in Securities, except in the event that use of the book-entry system
for the Securities is discontinued.
4. To facilitate subsequent transfers, all Securities deposited by Direct
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. or such other name as may be requested by an authorized
representative of DTC. The deposit of Securities with DTC and their
registration in the name of Cede & Co. or such other nominee do not effect any
change in beneficial ownership. DTC has no knowledge of the actual Beneficial
Owners of the Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Securities are credited, which may or may
not be the Beneficial Owners. The Direct and Indirect Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time. [Beneficial Owners of Securities may wish to
take certain steps to augment transmission to them of notices of significant
events with respect to the Securities, such as redemptions, tenders, defaults,
and proposed amendments to the security documents. Beneficial Owners of
Securities may wish to ascertain that the nominee holding the Securities for
their benefit has agreed to obtain and transmit notices to Beneficial Owners, or
in the alternative, Beneficial Owners may wish to provide their names and
addresses to the registrar and request that copies of the notices be provided
directly to them.]
[6. Redemption notices shall be sent to DTC. If less than all of the
Securities within an issue are being redeemed, DTC's practice is to determine
by lot the amount of the interest of each Direct Participant in such issue to
be redeemed.]
7. Neither DTC nor Cede & Co. (nor such other DTC nominee) will consent or
vote with respect to the Securities. Under its usual procedures, DTC mails an
Omnibus Proxy to Issuer as soon as possible after the record date. The Omnibus
Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Securities are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
8. Redemption proceeds, distributions, and divided payments on the
Securities will be made to Cede & Co., or such other nominee as may be
requested by an authorized representative of DTC. DTC's practice is to credit
Direct Participants' accounts, upon DTC's receipt of funds and corresponding
detail information from Issuer or Agent on payable date in accordance with
their respective holdings shown on DTC's records. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of
such Participant and not of DTC, Agent, or Issuer, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment of
redemption proceeds, distributions, and dividends to Cede & Co. (or such other
nominee as may be requested by an authorized representative of DTC) is the
B-22
responsibility of Issuer or Agent, disbursement of such payments to Direct
Participants shall be the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners shall be the responsibility of Direct and
Indirect Participants.
[9. A Beneficial Owner shall give notice to elect to have its Securities
purchased or tendered, through its Participant, to [Tender/Remarketing] Agent,
and shall effect delivery of such Securities by causing the Direct Participant
to transfer the Participant's interest in the Securities, on DTC's records, to
[Tender/Remarketing] Agent. The requirement for physical delivery of Securities
in connection with an optional tender or a mandatory purchase will be deemed
satisfied when the ownership rights in the Securities are transferred by Direct
Participants on DTC's records and followed by a book-entry credit of tendered
Securities to [Tender/Remarketing] Agent's DTC account.]
10. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to
Issuer or Agent. Under such circumstances, in the event that a successor
securities depository is not obtained, Security certificates are required to be
printed and delivered.
11. Issuer may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that Issuer believes to be reliable, but
Issuer takes no responsibility for the accuracy thereof.
[DTC LOGO]
REPRESENTATIONS FOR RULE 144A SECURITIES --
TO BE INCLUDED IN DTC LETTER OF REPRESENTATIONS
(Class X-1, Class X-2, Class E, Class F, and Class G)
1. Issuer represents that at the time of initial registration in the name
of DTC's nominee, Cede & Co., the Securities were Legally or Contractually
Restricted Securities,(1) eligible for transfer under Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act"), and identified by a
CUSIP or CINS number assigned to any securities of the same class that were not
Legally or Contractually Restricted Securities. Issuer shall ensure that a
CUSIP or CINS identification number is obtained for all unrestricted securities
of the same class that is different from any CUSIP or CINS identification
number assigned to a Legally or Contractually Restricted Security of such
class, and shall notify DTC promptly in the event that it is unable to do so.
Issuer represents that it has agreed to comply with all applicable information
requirements of Rule 144A.
2. Issuer represents that the Securities are:
B-23
[an issue of nonconvertible debt securities or nonconvertible preferred stock
which is rated in one of the top four categories by a nationally recognized
statistical rating organization ("Investment Grade Securities").]
3. If the Securities are not Investment-Grade Securities, Issuer and Agent
acknowledge that if such Securities cease to be included in a SRO Rule 144A
System during any period in which such Securities are Legally or Contractually
Restricted Securities, such Securities shall no longer be eligible for DTC's
services. Furthermore, DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving reasonable
notice to Issuer or Agent. Under any of the aforementioned circumstances, at
DTC's request, Issuer and Agent shall cooperate fully with DTC by taking
appropriate action to make available one or more separate certificates
evidencing Securities to any DTC Participant ("Participant") having Securities
credited to its DTC accounts.
4. Issuer and Agent acknowledge that, so long as Cede & Co. is a record
owner of the Securities, Cede & Co. shall be entitled to all applicable voting
rights and receive the full amount of all distributions payable with respect
thereto. Issuer and Agent acknowledge that DTC shall treat any Participant
having Securities credited to its DTC accounts as entitled to the full benefits
of ownership of such Securities.
------------
(1)A "Legally Restricted Security" is a security that is a restricted
security, as defined in Rule 144(a)(3). A "Contractually Restricted Security"
is a security that upon issuance and continually thereafter can only be sold
pursuant to Regulation S under the Securities Act, Rule 144A, Rule 144, or in a
transaction exempt from the registration requirements of the Securities Act
pursuant to Section 4 of the Securities Act and not involving any public
offering; provided, however, that once the security is sold pursuant to the
provisions of Rule 144, including Rule 144(k), it will thereby cease to be a
"Contractually Restricted Security." For purposes of this definition, in order
for a depositary receipt to be considered a "Legally or Contractually
Restricted Security," the underlying security must also be a "Legally or
Contractually Restricted Security."
Without limiting the generality of the preceding sentence, Issuer and Agent
acknowledge that DTC shall treat any Participant having Securities credited to
its DTC accounts as entitled to receive distributions (and voting rights, if
any) in respect of the Securities, and to receive from DTC certificates
evidencing Securities. Issuer and Agent recognize that DTC does not in any way
undertake to, and shall not have any responsibility to, monitor or ascertain
the compliance of any transactions in the Securities with any of the
provisions: (a) of Rule 144A; (b) of other exemptions from registration under
the Securities Act or any other state or federal laws; or (c) of the offering
documents.
[DTC LOGO]
REPRESENTATIONS FOR RULE 144A SECURITIES --
TO BE INCLUDED IN DTC LETTER OF REPRESENTATIONS
(Class H, Class J, Class K, Class L, Class M,
B-24
Class N and Class P Certificates)
1. Issuer represents that at the time of initial registration in the name
of DTC's nominee, Cede & Co., the Securities were Legally or Contractually
Restricted Securities,(1) eligible for transfer under Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act"), and identified by a
CUSIP or CINS number assigned to any securities of the same class that were not
Legally or Contractually Restricted Securities. Issuer shall ensure that a
CUSIP or CINS identification number is obtained for all unrestricted securities
of the same class that is different from any CUSIP or CINS identification
number assigned to a Legally or Contractually Restricted Security of such
class, and shall notify DTC promptly in the event that it is unable to do so.
Issuer represents that it has agreed to comply with all applicable information
requirements of Rule 144A.
2. Issuer represents that the Securities are:
[included within PORTAL, a Self-Regulatory Organization System approved by the
Securities and Exchange Commission for the reporting of quotation and trade
information of securities eligible for transfer pursuant to Rule 144A) an "SRO
Rule 144A System")].
3. If the Securities are not Investment-Grade Securities, Issuer and Agent
acknowledge that if such Securities cease to be included in an SRO Rule 144A
System during any period in which such Securities are Legally or Contractually
Restricted Securities, such Securities shall no longer be eligible for DTC's
services. Furthermore, DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving reasonable
notice of Issuer and Agent. Under any of the aforementioned circumstances, at
DTC's request, Issuer or Agent shall cooperate fully with DTC by taking
appropriate action to make available one or more separate certificates
evidencing Securities to any DTC Participant ("Participant") having Securities
credited to its DTC accounts.
4. Issuer and Agent acknowledge that, so long as Cede & Co. is a record
owner of the Securities, Cede & Co. shall be entitled to all applicable voting
rights and receive the full amount of all distributions payable with respect
thereto. Issuer and Agent acknowledge that DTC shall treat any Participant
having Securities credited to its DTC accounts as entitled to the full
benefits of ownership of such Securities.
----------------------
(1) A "Legally Restricted Security" is a security that is a restricted
security, as defined in Rule 144(a)(3). A "Contractually Restricted Security"
is a security that upon issuance and continually thereafter can only be sold
pursuant to Regulation S under the Securities Act, Rule 144A, Rule 144, or in a
transaction exempt from the registration requirements of the Securities Act
pursuant to Section 4 of the Securities Act and not involving any public
offering; provided, however, that once the security is sold pursuant to the
provisions of Rule 144, including Rule 144(k), it will thereby cease to be a
"Contractually Restricted Security." For purposes of this definition, in order
for a depositary receipt to be considered a "Legally or Contractually
Restricted Security," the underlying security must also be a "Legally or
Contractually Restricted Security."
Without limiting the generality of the preceding sentence, Issuer and Agent
acknowledge that DTC shall treat any Participant having Securities credited to
its DTC accounts as entitled to receive distributions (and voting rights, if
any) in respect of the Securities, and to receive from DTC certificates
evidencing Securities. Issuer and Agent recognize that DTC does not in any way
undertake to, and shall not have any responsibility to, monitor or ascertain
the compliance of any transactions in the Securities with any of the
provisions: (a) of Rule 144A; (b) of other exemptions from registration under
the Securities Act or any other state or federal securities laws; or (c) of the
offering documents.
B-25
[DEPOSITORY TRUST COMPANY LOGO]
REPRESENTATIONS FOR SECURITIES ELIGIBLE FOR TRANSFER PURSUANT TO REGULATION S
WHERE ISSUER HAS REQUESTED A TEMPORARY "CHILL" ON DELIVER ORDERS--
TO BE INCLUDED IN DTC LETTER OF REPRESENTATIONS
(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 and Class P)
Issuer has requested that, with respect to the Securities that are eligible
for transfer pursuant to Regulation S, which have been identified by a separate
CUSIP number (the "Regulation S Securities"), DTC not effect book-entry
deliveries (except deliveries via DTC's Deposit/Withdrawal at Custodian DWAC
system in Participant accounts maintained by banks that act as depositaries for
Cedel and Euroclear) until November 12, 2002.
In the event that Issuer desires an extension or shortening of this
"Deliver Order Chill," Issuer or Agent(1) shall send DTC a notice requesting
that the Deliver Order Chill be eliminated as of a specified date. Such notice
shall be sent to DTC by a secure means (e.g., legible telecopy, registered or
certified mail, overnight delivery) in a timely manner designed to assure that
such notice is in DTC's possession no later than the close of business two
business days prior to the date specified for elimination of the Deliver Order
Chill. If sent by telecopy, such notice shall be sent to (▇▇▇)▇▇▇-▇▇▇▇ or
(▇▇▇)▇▇▇-▇▇▇▇. Issuer or Agent shall confirm DTC's receipt of such telecopy by
telephoning DTC's Underwriting Department at (▇▇▇)▇▇▇-▇▇▇▇. If delivered by hand
or sent by mail or overnight delivery, such notice shall be sent to:
Manager, Eligibility Section
Underwriting Department
The Depository Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
-------------------
(1) Agent shall be defined as Depositary, Trustee, Trust Company, Issuing
Agent and/or Paying Agent as such definition applies in the DTC Letter of
Representations to which this rider may be attached.
B-26
EXHIBIT C-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
LaSalle Bank National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Asset Backed Securities Trust
Services Group--Bear ▇▇▇▇▇▇▇, 2002-PBW1
Re: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2002-PBW1
------------------------------------------------------------
In connection with the administration of the Mortgage Files held by or on
behalf of you as trustee under a certain Pooling and Servicing Agreement, dated
as of October 1, 2002 (the "Pooling and Servicing Agreement"), among Bear
▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc. as depositor, Prudential Asset
Resources, Inc. as a master servicer (in such capacity, a "Master Servicer") and
as RREEF Textron special servicer, ▇▇▇▇▇ Fargo Bank, National Association, as a
master servicer (in such capacity, a "Master Servicer"), ARCap Special
Servicing, Inc. as general special servicer, ▇▇▇▇▇ Fargo Bank Minnesota,
National Association, as Certificate Administrator and as Tax Administrator, ABN
AMRO Bank N.V., as fiscal agent, and The Prudential Insurance Company of America
as RREEF Textron B-Note holder and you as trustee (in such capacity, the
"Trustee"), the undersigned as Master Servicer with respect to the following
described Mortgage Loan hereby requests a release of the Mortgage File (or the
portion thereof specified below) held by or on behalf of you as Trustee with
respect to such Mortgage Loan for the reason indicated below.
Property Name:
Address:
Prospectus No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. Mortgage Loan paid in full. The undersigned hereby certifies that
all amounts received in connection with the Mortgage Loan that
are required to be credited to the Collection Account pursuant to
the Pooling and Servicing Agreement, have been or will be so
credited.
______ 2. Other. (Describe) _____________________________________________
________________________________________________________________
C-1-1
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing Agreement and will be returned to you or
your designee within ten days of our receipt thereof, unless the Mortgage Loan
has been paid in full, in which case the Mortgage File (or such portion thereof)
will be retained by us permanently.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
[ ]
as a Master Servicer
By:___________________________________
Name:
Title:
C-1-2
EXHIBIT C-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
LaSalle Bank National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Asset Backed Securities Trust
Services Group--Bear ▇▇▇▇▇▇▇, 2002-PBW1
Re: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2002-PBW1
------------------------------------------------------------
In connection with the administration of the Mortgage Files held by or on
behalf of you as trustee under a certain Pooling and Servicing Agreement, dated
as of October 1, 2002 (the "Pooling and Servicing Agreement"), among Bear
▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc. as depositor, Prudential Asset
Resources, Inc. as a master servicer and as RREEF Textron special servicer (in
such capacity, the "RREEF Textron Special Servicer"), ▇▇▇▇▇ Fargo Bank, National
Association, as a master servicer, ARCap Special Servicing, Inc. as general
special servicer (in such capacity, the "General Special Servicer"), ▇▇▇▇▇ Fargo
Bank Minnesota, National Association, as Certificate Administrator and as Tax
Administrator, ABN AMRO Bank N.V., as fiscal agent, and The Prudential Insurance
Company of America as RREEF Textron B-Note holder and you as trustee (in such
capacity, the "Trustee"), the undersigned as [RREEF Textron][General] Special
Servicer with respect to the following described Mortgage Loan hereby requests a
release of the Mortgage File (or the portion thereof specified below) held by or
on behalf of you as Trustee with respect to such Mortgage Loan for the reason
indicated below.
Property Name:
Address:
Prospectus No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. The Mortgage Loan is being foreclosed.
______ 2. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing Agreement and will be returned to you or
your designee within ten days of our
C-2-1
receipt thereof, unless the Mortgage Loan is being foreclosed, in which case the
Mortgage File (or such portion thereof) will be returned when no longer required
by us for such purpose.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
[ ]
as [RREEF Textron][General] Special Servicer
By: ________________________________
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CERTIFICATE ADMINISTRATOR REPORT
[See Attached Report]
D-1
EXHIBIT D-2
FORM OF CMSA SERVICER WATCH LIST CRITERIA
------------------------------------------------------------------------------------------------------------------------
Property Type: ALL
------------------------------------------------------------------------------------------------------------------------
Reference Criteria Review Threshold Release Threshold
Code
------------------------------------------------------------------------------------------------------------------------
FINANCIAL CONDITIONS
------------------------------------------------------------------------------------------------------------------------
1 A Delinquent P&I Payments (greater than or equal to) 2 Current
payments. Due
------------------------------------------------------------------------------------------------------------------------
1 B Delinquent taxes. Servicer has knowledge that the Taxes are brought current
taxes are more than 30 days past including all interest and
due penalties
------------------------------------------------------------------------------------------------------------------------
1 C Delinquent or Forced Placed The earlier of 30 days delinquent Receipt of proof of satisfactory
Insurance or insurance is forced placed insurance in force
------------------------------------------------------------------------------------------------------------------------
1 D Outstanding servicing advances (greater than) Servicing Advances have been repaid
(L38 and/or L39) 30 days delinquent
------------------------------------------------------------------------------------------------------------------------
1 E DSCR Absolute Level based on (less than) 1.10;(less than DSCR above threshold or at
normalized Net Cash Flow. Use or equal to) 1.20 for healthcare servicer's discretion after 3 mos.
yr. End normalized numbers or & lodging; exclude CTL, ground
use the most recent trailing leases and single tenant NNN
12 mos. Normalized or most
recent ytd normalized if
available. (Ytd normalized
should only be used if the
property is not impacted by
seasonality issues).
------------------------------------------------------------------------------------------------------------------------
1 F DSCR Decrease from U/W. (less than or equal to) 75% UW DSCR above threshold or at
Absolute Level based on DSCR; Excludes CTL, ground servicer's discretion after 3 mos.
normalized Net Cash Flow. Use leases and single tenant NNN.
yr. End normalized numbers or
use the most recent trailing 12
mos. Normalized or most recent
ytd normalized if available.
(Ytd normalized should only be
used the property is not
impacted by seasonality
issues).
------------------------------------------------------------------------------------------------------------------------
1 G Floater DSCR - DSCR Decrease DSCR (less than) .95 or (less than DSCR above threshold or at
from U/W or absolute level or equal to) 70% U/W stablized NCF servicer's discretion after 3 mos.
based on annualized Net Cash number. Excludes CTL, ground
Flow. Absolute Level based on leases and single tenant NNN
annualized normalized Net Cash
Flow. Use yr. End normalized
numbers for the most recent
trailing 12 mos. Normalized or
most recent ytd normalized if
available. (Ytd normalized
should only be used the
property is not impacted by
seasonality issues).
------------------------------------------------------------------------------------------------------------------------
1 H Defaulted or matured senior When notice received by Servicer Default cured or lien paid off
lien and/or mechanics lien in
excess of 5% of UPB.
------------------------------------------------------------------------------------------------------------------------
D-2
------------------------------------------------------------------------------------------------------------------------
Property Type: ALL
------------------------------------------------------------------------------------------------------------------------
Reference Code Criteria Review Threshold Release Threshold
------------------------------------------------------------------------------------------------------------------------
1 I Defaulted, matured, or When notice received by Servicer Default has been cured or loan
discovery of previously assumed by subordinate lienholder
undisclosed, subordinate lien or mezzanine debt is approved by
including mezzanine debt the Servicer.
------------------------------------------------------------------------------------------------------------------------
1 J Any unplanned draw on a LOC or Any Occurrence After funds or LOC replaced if
reserve to pay debt service. required by the documents
------------------------------------------------------------------------------------------------------------------------
BORROWER ISSUES
------------------------------------------------------------------------------------------------------------------------
2 A Substantive required repairs If required repair not completed Satisfactory verification that
reserved for at closing or within 60 days following the due repairs have been completed
otherwise disclosed to Servicer date (including extensions
not completed by due date. approved by Servicer)
------------------------------------------------------------------------------------------------------------------------
2 B Remediation or O & M plan Any knowledge of deficiency that When plan deficiencies have been
deficiencies/non-compliance adversely affects the cured
reservied for at closing or performance/value of the property.
otherwise disclosed to Servicer
------------------------------------------------------------------------------------------------------------------------
2 C Occurrence of servicing trigger Any Occurrence Cure of the event that required
event in the mortgage loan action under the mortgage
documents (for example: documents, or satisfying relevant
Springing Lockbox, Management mortgage loan provisions or after
or Franchise change based on the establishment of reserve, LOC
minimum NOI/DSCR threshold or lockbox.
levels)
------------------------------------------------------------------------------------------------------------------------
2 D Unsubordinated or subordinated When notice received by Servicer When default cured
ground lease default
------------------------------------------------------------------------------------------------------------------------
2 E Expiration of unsubordinated Any Occurrence New lease or option has been
ground lease default within exercised
6 months
------------------------------------------------------------------------------------------------------------------------
2 F Operating license or franchise When notice received by Servicer New franchise or license in place,
agreement default or default under franchise or
license has been cured
------------------------------------------------------------------------------------------------------------------------
2 G Bankruptcy of Borrower/owner, Upon receipt of notice by Servicer Bankruptcy resolved or six months
principal backer or guarantor after bankruptcy is filed, whichever
bankrupcy that comes to the occurs first.
knowledge of Lender/Servicer
------------------------------------------------------------------------------------------------------------------------
2 H Federal/State Survey for Servicer has not received a new Annual survey submitted or
Nursing Homes that require the survey within 18 months of the deficiency cured
report per the loan documents. last survey received by the
Servicer or the latest survey
indicates a deficiency level of F
or higher
------------------------------------------------------------------------------------------------------------------------
PROPERTY CONDITION ISSUES
------------------------------------------------------------------------------------------------------------------------
3 A Inspection reveals Poor or Not Any Occurrence Determination by Servicer in its
Accessible condition as defined discretion that property
by the MBA/CMSA Property deficiencies have been cured, or
Inspection Form access allowed and inspection
completed
------------------------------------------------------------------------------------------------------------------------
3 B Inspection reveals new and The Servicer becomes aware in Determination by Servicer in its
uninsured potentially harmful ordinary course of an inspection. discretion that property
environmental issue deficiencies have been cured
------------------------------------------------------------------------------------------------------------------------
D-2
------------------------------------------------------------------------------------------------------------------------
Property Type: ALL
------------------------------------------------------------------------------------------------------------------------
Reference Code Criteria Review Threshold Release Threshold
------------------------------------------------------------------------------------------------------------------------
3 C When notice received by lender When Servicer becomes aware of a Determination by Servicer in its
of a property affected by major casualty or condemnation equal to discretion that all necessary
casualty or condemnation the lesser of 10% of UPB or repairs have been completed
proceeding affecting future $500,000 satisfactorily or that
cashflows. condemnation proceedings have been
completed and that the asset can
perform at satisfactory levels
------------------------------------------------------------------------------------------------------------------------
LEASE ROLLOVER, TENANT ISSUES AND VACANCY
------------------------------------------------------------------------------------------------------------------------
4 A Occupancy decrease (excludes (less than) 80% of UW When condition no longer exists
lodging)
------------------------------------------------------------------------------------------------------------------------
4 B Reduced EGI for all property (less than) 80% U/W EGI and (less DSCR above threshold
types (including lodging) Use than) 1.10 DSCR all property
yr. End normalized numbers or types except use (less than) 80%
the most recent trailing 12 U/W EGI and (less than) 1.20 for
mos. Normalized or most recent healthcare and lodging
ytd normalized if available.
(Ytd normalized should only be
used if the property is not
impacted by seasonality issues).
------------------------------------------------------------------------------------------------------------------------
4 C Single tenant or any tenant Single tenant or any one tenant When condition no longer exists
with a lease (greater than) (greater than) 30% NRA; Excludes
30% NRA expiring within the Multifamily, Lodging, Healthcare,
next 12 months. MH Park & Self Storage as well as
fully amortizing CTL loans when
the lease expires co-terminus with
the loan.
------------------------------------------------------------------------------------------------------------------------
4 D Any top 3 tenant with a lease Cumulative lease expirations When condition no longer exists
expiring that occupies (greater within the next 12 months are
than) 5% of the NRA and the (greater than) 30% of the NRA and
combination of those expiring each underlying lease of the
leases within the next 12 Cumulative lease expirations is
months that are (greater than) (greater than or equal to) 5%
30% of the NRA.
------------------------------------------------------------------------------------------------------------------------
4 E Bankruptcy of major tenant, (greater than) 30% NRA; Excludes When condition no longer exists
licenser or franchiser. Multifamily, Lodging, MH Park &
Self Storage; For Healthcare
bankruptcy of tenant under master
lease or of management company
------------------------------------------------------------------------------------------------------------------------
4 F Major tenant lease is in (greater than) 30% NRA and (less When condition no longer exists
default, terminated or is than) 1.20 DSCR; Excludes
dark Multifamily, Lodging MH Park &
Self Storage; For Healthcare
failure to comply with Regulatory
Requirements
------------------------------------------------------------------------------------------------------------------------
MATURITY
------------------------------------------------------------------------------------------------------------------------
5 A Pending loan maturity or (less than) 90 days Until loans is extended or paid
anticipated repayment date with off, or for ARD loans not other WL
balloon balance due trigger or event has occurred.
------------------------------------------------------------------------------------------------------------------------
OTHER
------------------------------------------------------------------------------------------------------------------------
6 A Any other situation that As determined by Servicer When condition no longer exists
indicates an increased level of
default risk that may create
potential losses to investors.
------------------------------------------------------------------------------------------------------------------------
▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF ARCAP INTEREST ON ADVANCE RECONCILIATION REPORT
[The report shall set forth, for each Mortgage Loan for which any Advance
Interest has been paid, (i) the amount of Advance Interest, (ii) the amount of
Default Charges available to offset such Advance Interest (per Section 3.26 of
the Pooling and Servicing Agreement) and (iii) the net amount of such Advance
Interest giving effect to such offset.]
▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF ARCAP MORTGAGE LOANS DELINQUENT REPORT
FORM OF MORTGAGE LOANS DELINQUENT REPORT
MORTGAGE LOANS DELINQUENCY REPORT
As of Month End ______________
Deal Name
OUTSTANDING OUTSTANDING
LOAN LOAN PRO-SUP PROPERTY ENDING SCHEDULED LATE UNALLOCATED P & I SERVICING PAID
NBR OFFICER ID NAME SCH.PRIN.BAL. PAYMENT FEES SUSPENSE ADVANCES ADVANCES TO DATE
010012213 abby 34 XYZ 519,504.30 5,059.04 787.73 0.00 10,118.00 400.00 01/01/01
Building
SPECIALLY SERVICED LOANS
------------------------
010003938 an 43 xxx 541,866.64 6,461.77 6,718.74 0.00 10/10/00
FIRST
DUE GRACE
DATE DAYS COMMENTS
11/01/2000 6 2/26/01: Servicer has
begun legal action.
Borrower states that
additional time is
needed to become
current. Servicer
will not stop legal
action until loan is
brought completely
current.
2/22/01: Drafted final
default letter for
approval by
management. Pending
management approval,
will also instruct
Servicer counsel to
send final default
notice.
06/01/1998 11 Loan in Special Servicing
D-4
010007088 an 44 bbb 1,638,421.35 12,354.52 3,989.05 0.00
010003604 an 45 ccc 2,994,388.87 33,671.76 11,785.13 388,686.54
10/10/00 12/01/1998 8 Loan in Special Servicing
10/10/00 03/01/1999 6 Loan in Special Servicing
▇-▇
▇▇▇▇▇▇▇ ▇-▇
▇▇▇▇ ▇▇ ▇&▇ ADVANCES AS OF REMITTANCE DATE REPORT
-------------------------
[DEAL NAME] ADVANCES DETAIL REPORT
-------------------------
[DEAL SERIES]
DISTRIBUTION
DATE : [INSERT]
[TO BE COMPLETED AS OF MASTER
SERVICER REMITTANCE DATE]
-----------------------------------------------------------------------------------------------------------------------------------
LOAN NUMBER TAB BORROWERS NAME PAID TO DATE PRINCIPAL GROSS INTEREST ADMIN FEE ASER NET T & I
No ADVANCE ADVANCE BALANCE PORTION AMOUNT INTEREST ADVANCE
BALANCE ADVANCE
-----------------------------------------------------------------------------------------------------------------------------------
600870400 1 20020811 0.00 0.00 0.00 0.00 0.00 0.00
760990097 89 20020811 0.00 0.00 0.00 0.00 0.00 7,460.98
760990098 39 20020711 5,708.56 77,391.17 883.98 0.00 76,531.27 6,214.51
760990102 76 20020801 0.00 0.00 0.00 0.00 0.00 0.00
760990103 93 20020801 0.00 0.00 0.00 0.00 0.00 9,972.44
760990104 126 20020801 0.00 0.00 0.00 0.00 0.00 0.00
760990105 133 20020801 0.00 0.00 0.00 0.00 0.00 489.92
760990106 136 20020801 0.00 0.00 0.00 0.00 0.00 6,690.23
760990107 141 20020801 0.00 0.00 0.00 0.00 0.00 0.00
760990108 145 20020801 0.00 0.00 0.00 0.00 0.00 0.00
760990109 147 20020801 0.00 0.00 0.00 0.00 0.00 0.00
760990110 148 20020801 0.00 0.00 0.00 0.00 0.00 0.00
760990111 149 20020801 0.00 0.00 0.00 0.00 0.00 0.00
760990112 151 20020701 559.41 1,782.62 22.90 0.00 1,760.34 210.80
760990113 152 20020801 0.00 0.00 0.00 0.00 0.00 0.00
760990114 153 20020801 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------
TOTALS 407,688.51 3,130,430.63 115,912.02 309,874.83 3,058,306.35 75,983.56
=================================================================================================================
-----------------------------------------------------------------------------
LOAN NUMBER SERVICING INTEREST TOTAL ACTUAL
ADVANCE BALANCE ON ADVANCES ADVANCE PRINCIPAL
BALANCE BALANCE
-----------------------------------------------------------------------------
600870400 0.00 0.00 0.00 56,512,902.73
760990097 0.00 7.37 7,468.35 2,929,416.29
760990098 0.00 2.43 88,456.77 9,985,957.42
760990102 0.00 0.00 0.00 3,761,012.41
760990103 0.00 12.77 9,985.21 2,803,257.05
760990104 0.00 0.00 0.00 941,159.09
760990105 0.00 0.00 489.92 771,476.12
760990106 0.00 2.61 6,692.84 616,418.03
760990107 0.00 0.00 0.00 453,773.61
760990108 0.00 0.00 0.00 386,501.23
760990109 0.00 0.00 0.00 363,656.33
760990110 0.00 0.00 0.00 339,723.38
760990111 0.00 0.00 0.00 320,585.07
760990112 0.00 0.19 2,530.74 258,767.18
760990113 0.00 0.00 0.00 232,616.39
760990114 0.00 0.00 0.00 229,279.44
----------------------------------------------------------------
125,718.09 35,893.62 3,393,715.30 1,130,423,517.45
================================================================
D-5
EXHIBIT D-6
ARCAP NAMING CONVENTION FOR ELECTRONIC FILE DELIVERY
ARCap Naming Convention for Electronic File Delivery
Deal Name - Prospectus Loan I.D. - Statement Type - Statement Date - Months
Covered by Statement
For Example:
JPM2000C10-00001.1-OS-12312000-12
JPM2000C10-00001.2-OS-12312000-12
JPM2000C10-00001.1-OSAR-12312000-12
JPM2000C10-00001.1-FS-12312000-12
JPM2000C10-00001.1-RR-12312000
DLJ2000CKP1-00150.1-OS-12312000-12
DLJ2000CKP1-00001.1-OSAR-12312000-12
DLJ2000CKP1-00001.1-FS-12312000-12
DLJ2000CKP1-00001.1-RR-12312000
DLJ2000CKP1-00001.1-PI-12312000
Please note there should not be any special characters in the Deal Name, i.e. no
spaces, no dashes, no underscores, etc.
The Prospectus I.D. should have five leading characters, a decimal point, and
the Property # (1,2,3,etc).
The Statement Types are: OS - Operating Statement (PDF or TIF format)
OSAR- Operating Statement Analysis
Report & NOI ADJ Worksheet (Excel
Format named individually, not rolling format)
FS - Borrower Financial Statement (PDF or TIF)
RR - Rent Roll (Excel or PDF or TIF)
PI-- Property Inspection (Excel format)
HS- Healthcare Survey
FR- Franchise Annual Compliance Report
The Statement Date should be eight characters long - MODAYEAR where MO = months
from 01 to 12, DAY = day of month from 01 to 31, YEAR = year such as 1999 or
2000 or 2001.
The Months Covered by the Statement should range from 01 to 12.
D-6
EXHIBIT D-7
CONTROLLING CLASS CERTIFICATEHOLDER'S REPORTS CHECKLIST
------------------------------------------- ------------------ -------------------- ---------------------------------
Information Format Frequency
------------------------------------------- ------------------ -------------------- ---------------------------------
Property Operating Statement Actual PDF/TIF Quarterly per Section 3.12/4.02 of
PSA
------------------------------------------- ------------------ -------------------- ---------------------------------
Property Rent Roll Actual PDF/TIF Quarterly per Section 3.12/4.02 of
PSA
------------------------------------------- ------------------ -------------------- ---------------------------------
Other Financials as required by loan Actual PDF/TIF Per Section 3.12/4.02 of PSA
documents
------------------------------------------- ------------------ -------------------- ---------------------------------
Property Inspection Actual PDF/TIF Within 30 days of annual or
other inspection per Section
3.12 of PSA
------------------------------------------- ------------------ -------------------- ---------------------------------
P&I Advances as of Remittance Date Monthly Excel Master Servicer Remittance Date
Report (1)
------------------------------------------- ------------------ -------------------- ---------------------------------
Mortgage Loans Delinquent Report (2) Monthly Excel End of each month per Section
4.02 of PSA
------------------------------------------- ------------------ -------------------- ---------------------------------
Interest on Advance Reconciliation Report Monthly Excel Distribution Date
------------------------------------------- ------------------ -------------------- ---------------------------------
CMSA Setup File (Issuer/Trustee/Servicer) CMSA IRP Access/Excel Monthly/Distribution Date
------------------------------------------- ------------------ -------------------- ---------------------------------
CMSA Property File CMSA IRP Access/Excel Monthly/Distribution Date
------------------------------------------- ------------------ -------------------- ---------------------------------
CMSA Loan Periodic Update File CMSA IRP Access/Excel Monthly/Distribution Date
------------------------------------------- ------------------ -------------------- ---------------------------------
CMSA Financial File CMSA IRP Access/Excel Monthly/Distribution Date
------------------------------------------- ------------------ -------------------- ---------------------------------
Distribution Statement (Trustee) Monthly Excel/PDF Monthly/Distribution Date
------------------------------------------- ------------------ -------------------- ---------------------------------
CMSA Bond File (Trustee) CMSA IRP Access/Excel Monthly/Distribution Date
------------------------------------------- ------------------ -------------------- ---------------------------------
CMSA Collateral File (Trustee) CMSA IRP Access/Excel Monthly/Distribution Date
------------------------------------------- ------------------ -------------------- ---------------------------------
CMSA Supplemental Reports CMSA IRP Access/Excel Monthly/Distribution Date
------------------------------------------- ------------------ -------------------- ---------------------------------
Operating Statement Analysis Report CMSA IRP Access/Excel Monthly/Distribution Date
------------------------------------------- ------------------ -------------------- ---------------------------------
NOI Adjustment Worksheet CMSA IRP Access/Excel Monthly/Distribution Date
------------------------------------------- ------------------ -------------------- ---------------------------------
Documentation Exceptions Report (Trustee) Quarterly Access/Excel Monthly/Distribution Date
------------------------------------------- ------------------ -------------------- ---------------------------------
Footnotes:
(1) On the Master Servicer Remittance Date following the Determination Date
for the related Distribution Date, a list of all loans delinquent and requiring
a P&I Advance as of the P&I Advance Date.
(2) As of the last day of the month (30th), for all delinquencies reported in
#1 above, a list of a) all mortgage loans which remain delinquent for such
Distribution period (along with the number of days delinquent) accompanied with
any reason, in Master Servicer's opinion, for the mortgage loans continued
delinquency, along with an explanation of Master Servicer's attempts to cure.
(3) ARCap requests that the above information be organized in ascending
Prospectus Loan I.D. order and forwarded on each of the above listed dates via
E-Mail to the following address or all reports and data files shall be available
via the Servicer's or Trustee's Website.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Director Bond/Mortgage Surveillance President
ARCap REIT, Inc. ARCap REIT, Inc.
▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
(972) 580-1688 ext. 29 (972) 580-1688 ext. 11
D-7
EXHIBIT E-1A
FORM I OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
HELD IN PHYSICAL FORM
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, National Association
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Trust 2002-PBW1
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2002-PBW1, Class
______ Certificates [having an initial aggregate Certificate
[Principal Balance] [Notional Amount] as of
October 3, 2002 (the "Closing Date") of $__________]
[evidencing a ____% Percentage Interest in the related
Class] (the "Transferred Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
______________ (the "Transferor") to _________________ (the "Transferee") of the
captioned Certificates (the "Transferred Certificates") pursuant to Section 5.02
of the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of October 1, 2002 among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities
Inc., as Depositor, Prudential Asset Resources, Inc., as a Master Servicer and
RREEF Textron Special Servicer, ▇▇▇▇▇ Fargo Bank, National Association, as a
Master Servicer, ARCap Special Servicing, Inc., as General Special Servicer,
LaSalle Bank National Association, as Trustee, ▇▇▇▇▇ Fargo Bank Minnesota,
National Association, as Certificate Administrator and as Tax Administrator, ABN
AMRO Bank N.V., as Fiscal Agent, and The Prudential Insurance Company of
America, as RREEF Textron B-Note Holder. All capitalized terms used herein and
not otherwise defined shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificates with
the full right to transfer such Certificates free from any and all claims and
encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a
E-1A-1
Transferred Certificate or any other similar security to any person in any
manner, (b) solicited any offer to buy or accept a transfer, pledge or other
disposition of any Transferred Certificate, any interest in a Transferred
Certificate or any other similar security from any person in any manner, (c)
otherwise approached or negotiated with respect to any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security with any
person in any manner, (d) made any general solicitation with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security by means of general advertising or in any other manner, or (e)
taken any other action with respect to any Transferred Certificate, any interest
in a Transferred Certificate or any other similar security, which (in the case
of any of the acts described in clauses (a) through (e) hereof) would constitute
a distribution of the Transferred Certificates under the Securities Act of 1933,
as amended (the "Securities Act"), or would render the disposition of the
Transferred Certificates a violation of Section 5 of the Securities Act or any
state securities laws, or would require registration or qualification of the
Transferred Certificates pursuant to the Securities Act or any state securities
laws.
3. The Transferor and any person acting on behalf of the Transferor in this
matter reasonably believe that the Transferee is a "qualified institutional
buyer" as that term is defined in Rule 144A ("Rule 144A") under the Securities
Act (a "Qualified Institutional Buyer") purchasing for its own account or for
the account of another person that is itself a Qualified Institutional Buyer. In
determining whether the Transferee is a Qualified Institutional Buyer, the
Transferor and any person acting on behalf of the Transferor in this matter has
relied upon the following method(s) of establishing the Transferee's ownership
and discretionary investments of securities (check one or more):
-- (a) The Transferee's most recent publicly available financial
statements, which statements present the information as of a date
within 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. purchaser and within 18 months
preceding such date of sale in the case of a foreign purchaser; or
-- (b) The most recent publicly available information appearing in
documents filed by the Transferee with the Securities and Exchange
Commission or another United States federal, state, or local
governmental agency or self-regulatory organization, or with a
foreign governmental agency or self-regulatory organization, which
information is as of a date within 16 months preceding the date of
sale of the Transferred Certificates in the case of a U.S. purchaser
and within 18 months preceding such date of sale in the case of a
foreign purchaser; or
-- (c) The most recent publicly available information appearing in a
recognized securities manual, which information is as of a date
within 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. purchaser and within 18 months
preceding such date of sale in the case of a foreign purchaser; or
-- (d) A certification by the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of the
Transferee, specifying the amount of securities owned and invested
on a discretionary basis by the Transferee as of a specific date on
or since the close of the Transferee's most recent fiscal year, or,
in the case of a Transferee that is a member of a "family of
E-1A-2
investment companies", as that term is defined in Rule 144A, a
certification by an executive officer of the investment adviser
specifying the amount of securities owned by the "family of
investment companies" as of a specific date on or since the close of
the Transferee's most recent fiscal year.
-- (e) Other. (Please specify brief description of method)
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
4. The Transferor and any person acting on behalf of the Transferor
understand that in determining the aggregate amount of securities owned and
invested on a discretionary basis by an entity for purposes of establishing
whether such entity is a Qualified Institutional Buyer:
(a) the following instruments and interests shall be excluded:
securities of issuers that are affiliated with such entity; securities
that are part of an unsold allotment to or subscription by such entity,
if such entity is a dealer; securities of issuers that are part of such
entity's "family of investment companies", if such entity is a
registered investment company; bank deposit notes and certificates of
deposit; loan participations; repurchase agreements; securities owned
but subject to a repurchase agreement; and currency, interest rate and
commodity swaps;
(b) the aggregate value of the securities shall be the cost of such
securities, except where the entity 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 may be valued at market;
and
(c) securities owned by subsidiaries of the entity that are
consolidated with the entity in its financial statements prepared in
accordance with generally accepted accounting principles may be
included if the investments of such subsidiaries are managed under the
direction of the entity, except that, unless the entity is a reporting
company under Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, securities owned by such subsidiaries may not be
included if the entity itself is a majority-owned subsidiary that would
be included in the consolidated financial statements of another
enterprise.
5. The Transferor or a person acting on its behalf has taken reasonable
steps to ensure that the Transferee is aware that the Transferor is relying on
the exemption from the provisions of Section 5 of the Securities Act provided by
Rule 144A.
E-1A-3
6. The Transferor or a person acting on its behalf has furnished, or caused
to be furnished, to the Transferee all information regarding (a) the Depositor,
(b) the Transferred Certificates and distributions thereon, (c) the nature,
performance and servicing of the Mortgage Loans, (d) the Pooling and Servicing
Agreement, and (e) all related matters, that the Transferee has requested.
Very truly yours,
-------------------------------------------
(Transferor)
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
E-1A-4
EXHIBIT E-1B
FORM II OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
HELD IN PHYSICAL FORM
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, National Association
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Trust 2002-PBW1
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2002-PBW1, Class ______ Certificates [having an initial
aggregate Certificate [Principal Balance] [Notional
Amount] as of October 3, 2002 (the "Closing Date") of
$__________] [evidencing a ____% Percentage Interest in
the related Class] (the "Transferred Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
______________ (the "Transferor") to _________________ (the "Transferee") of the
captioned Certificates (the "Transferred Certificates") pursuant to Section 5.02
of the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of October 1, 2002 among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities
Inc., as Depositor, Prudential Asset Resources, Inc., as a Master Servicer and
RREEF Textron Special Servicer, ▇▇▇▇▇ Fargo Bank, National Association, as a
Master Servicer, ARCap Special Servicing, Inc., as General Special Servicer,
LaSalle Bank National Association, as Trustee, ▇▇▇▇▇ Fargo Bank Minnesota,
National Association, as Certificate Administrator and as Tax Administrator, ABN
AMRO Bank N.V., as Fiscal Agent, and The Prudential Insurance Company of
America, as RREEF Textron B-Note Holder. All capitalized terms used herein and
not otherwise defined shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificates with
the full right to transfer such Certificates free from any and all claims and
encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a
E-1B-1
Transferred Certificate or any other similar security to any person in any
manner, (b) solicited any offer to buy or accept a transfer, pledge or other
disposition of any Transferred Certificate, any interest in a Transferred
Certificate or any other similar security from any person in any manner, (c)
otherwise approached or negotiated with respect to any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security with any
person in any manner, (d) made any general solicitation with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security by means of general advertising or in any other manner, or (e)
taken any other action with respect to any Transferred Certificate, any interest
in a Transferred Certificate or any other similar security, which (in the case
of any of the acts described in clauses (a) through (e) hereof) would constitute
a distribution of the Transferred Certificates under the Securities Act of 1933,
as amended (the "Securities Act"), would render the disposition of the
Transferred Certificates a violation of Section 5 of the Securities Act or any
state securities laws, or would require registration or qualification of the
Transferred Certificates pursuant to the Securities Act or any state securities
laws.
Very truly yours,
-------------------------------------------
(Transferor)
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
E-1B-2
EXHIBIT E-1C
FORM OF TRANSFEROR CERTIFICATE FOR CERTAIN TRANSFERS OF
INTERESTS IN RULE 144A GLOBAL CERTIFICATES
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, National Association
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Trust 2002-PBW1
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2002-PBW1, Class ______ Certificates [having an initial
aggregate Certificate [Principal Balance] [Notional
Amount] as of October 3, 2002 (the "Closing Date") of
$__________] [evidencing a ____% Percentage Interest in
the related Class] (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee")
through our respective Depository Participants of the Transferor's beneficial
ownership interest (currently maintained on the books and records of The
Depository Trust Company ("DTC") and the Depository Participants) in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of October 1, 2002 (the "Pooling and Servicing Agreement"), among Bear
▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., as Depositor, Prudential Asset
Resources, Inc., as a Master Servicer and RREEF Textron Special Servicer, ▇▇▇▇▇
Fargo Bank, National Association, as a Master Servicer, ARCap Special Servicing,
Inc., as General Special Servicer, LaSalle Bank National Association, as
Trustee, ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as Certificate
Administrator and as Tax Administrator, ABN AMRO Bank N.V., as Fiscal Agent, and
The Prudential Insurance Company of America, as RREEF Textron B-Note Holder. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, 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.
E-1C-1
2. Neither the Transferor nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation with
respect to any Transferred Certificate, any interest in a Transferred
Certificate or any other similar security by means of general advertising or in
any other manner, or (e) taken any other action with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security, which (in the case of any of the acts described in clauses (a) through
(e) hereof) would constitute a distribution of the Transferred Certificates
under the Securities Act of 1933, as amended (the "Securities Act"), would
render the disposition of the Transferred Certificates a violation of Section 5
of the Securities Act or any state securities laws, or would require
registration or qualification of the Transferred Certificates pursuant to the
Securities Act or any state securities laws.
Very truly yours,
-------------------------------------------
(Transferor)
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
E-1C-2
EXHIBIT E-1D
FORM OF TRANSFEROR CERTIFICATE FOR CERTAIN TRANSFERS OF
INTERESTS IN REGULATION S GLOBAL CERTIFICATES
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, National Association
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Trust 2002-PBW1
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2002-PBW1, Class ______ Certificates [having an initial
aggregate Certificate [Principal Balance] [Notional
Amount] as of October 3, 2002 (the "Closing Date") of
$__________] [evidencing a ____% Percentage Interest in
the related Class] (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee")
through our respective Depository Participants of the Transferor's beneficial
ownership interest (currently maintained on the books and records of The
Depository Trust Company ("DTC") and the Depository Participants) in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of October 1, 2002 (the "Pooling and Servicing Agreement"), among Bear
▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., as Depositor, Prudential Asset
Resources, Inc., as a Master Servicer and RREEF Textron Special Servicer, ▇▇▇▇▇
Fargo Bank, National Association, as a Master Servicer, ARCap Special Servicing,
Inc., as General Special Servicer, LaSalle Bank National Association, as
Trustee, ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as Certificate
Administrator and as Tax Administrator, ABN AMRO Bank N.V., as Fiscal Agent, and
The Prudential Insurance Company of America, as RREEF Textron B-Note Holder. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, 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.
E-1D-1
2. At the time the buy order was originated, the Transferor reasonably
believed that the Transferee was outside the United States, its territories and
possessions.
3. If the Transferor is a distributor (within the meaning of Rule 902(d)
under the Securities Act of 1933, as amended (the "Securities Act")) with
respect to the Transferred Certificates, or an affiliate of such a distributor
or of the Depositor, or a person acting on behalf of such a distributor, the
Depositor or any affiliate of such distributor or of the Depositor, then:
(a) the sale of the Transferred Certificates by the Transferor
to the Transferee will be executed in, on or through a physical trading
floor of an established foreign securities exchange that is located
outside the United States, its territories and possessions;
(b) no directed selling efforts (within the meaning of Rule
902(c) under the Securities Act) have been made in the United States,
its territories and possessions, with respect to the Transferred
Certificates by the Transferor, any of its affiliates, or any person
acting on behalf of any of the foregoing;
(c) all offers and sales, if any, of the Transferred
Certificates by or on behalf of the Transferor prior to the expiration
of the distribution compliance period specified in category 2 or 3
(paragraph (b)(2) or (b)(3)) in Rule 903 under the Securities Act, as
applicable, have been and will be made only in accordance with the
provisions of Rule 903 or Rule 904 under the Securities Act, pursuant
to registration of the Transferred Certificates under the Securities
Act, or pursuant to an available exemption from the registration
requirements of the Securities Act;
(d) all offering materials and documents (other than press
releases), if any, used in connection with offers and sales of the
Transferred Certificates by or on behalf of the Transferor prior to the
expiration of the distribution compliance period specified in category
2 or 3 (paragraph (b)(2) or (b)(3)) in Rule 903 under the Securities
Act, as applicable, complied with the requirements of Rule 902(g)(2)
under the Securities Act; and
(e) if the Transferee is a distributor, a dealer or a person
receiving a selling concession, a fee or other remuneration and the
offer or sale of the Transferred Certificates thereto occurs prior to
the expiration of the applicable 40-day distribution compliance period,
the Transferor has sent a confirmation or other notice to the
Transferee that the Transferee is subject to the same restrictions on
offers and sales that apply to a distributor.
4. If the Transferor is not a distributor with respect to the Transferred
Certificates or an affiliate of such a distributor or of the Depositor or acting
on behalf of such a distributor, the Depositor or any affiliate of such a
distributor or of the Depositor, then:
(a) the sale of the Transferred Certificates by the Transferor
to the Transferee will be executed in, on or through the facilities of
a designated offshore securities market described in paragraph (b) of
Rule 902 under the Securities Act, and neither the
E-1D-2
Transferor nor anyone acting on its behalf knows that such transaction
has been prearranged with a buyer in the United States, its territories
and possessions;
(b) no directed selling efforts (within the meaning of Rule
902(c) under the Securities Act) have been made in the United States,
its territories and possessions, with respect to the Transferred
Certificates by the Transferor, any of its affiliates, or any person
acting on behalf of any of the foregoing; and
(c) if the Transferee is a dealer or a person receiving a
selling concession, a fee or other remuneration and the offer or sale
of the Transferred Certificates thereto occurs prior to the expiration
of the applicable 40-day distribution compliance period, the Transferor
has sent a confirmation or other notice to the Transferee stating that
the Transferred Certificates may be offered and sold during the
distribution compliance period only in accordance with the provisions
of Regulation S under the Securities Act, pursuant to registration of
the Transferred Certificates under the Securities Act or pursuant to an
available exemption from the registration requirements of the
Securities Act.
Very truly yours,
-------------------------------------------
(Transferor)
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
E-1D-3
EXHIBIT E-2A
FORM I OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF
NON-REGISTERED CERTIFICATES HELD IN PHYSICAL FORM
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, National Association
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Trust 2002-PBW1
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2002-PBW1, Class ______ Certificates [having an initial
aggregate Certificate [Principal Balance] [Notional
Amount] as of October 3, 2002 (the "Closing Date") of
$__________] [evidencing a ____% Percentage Interest in
the related Class] (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee")
through our respective Depository Participants of the Transferor's beneficial
ownership interest (currently maintained on the books and records of The
Depository Trust Company ("DTC") and the Depository Participants) in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of October 1, 2002 (the "Pooling and Servicing Agreement"), among Bear
▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., as Depositor, Prudential Asset
Resources, Inc., as a Master Servicer and RREEF Textron Special Servicer, ▇▇▇▇▇
Fargo Bank, National Association, as a Master Servicer, ARCap Special Servicing,
Inc., as General Special Servicer, LaSalle Bank National Association, as
Trustee, ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as Certificate
Administrator and as Tax Administrator, ABN AMRO Bank N.V., as Fiscal Agent, and
The Prudential Insurance Company of America, as RREEF Textron B-Note Holder. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, 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
E-2A-1
the sale to it is being made in reliance on Rule 144A. The Transferee is
acquiring the Transferred Certificates for its own account or for the account of
another Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases for its
own account or for the account of another Qualified Institutional Buyer and to
whom notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A, or (b) pursuant to another exemption from registration
under the Securities Act.
2. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Transferred Certificates and distributions thereon, (c) the
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust Fund created pursuant thereto, and (e) all
related matters, that it has requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
-------------------------------------------
(Transferor)
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
-------------------------------------------
(Nominee)
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
E-2A-2
ANNEX 1 TO EXHIBIT E-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the mortgage pass-through certificates being transferred (the
"Transferred Certificates") as described in the Transferee certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A")
because (i) the Transferee [each of the Transferee's equity owners] owned and/or
invested on a discretionary basis $______________________(1) in securities
(other than the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in accordance
with Rule 144A) and (ii) the Transferee satisfies the criteria in the category
marked below.
-- Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986.
-- Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any state, U.S. territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the state or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. bank, and not more than 18 months
preceding such date of sale in the case of a foreign bank or
equivalent institution.
-- Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar
------------------------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee or
any such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or any such equity owner, as the case may be, must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
E-2A-3
institution, which is supervised and examined by a state or federal
authority having supervision over any such institutions or is a
foreign savings and loan association or equivalent institution and
(b) has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months preceding the
date of sale of the Transferred Certificates in the case of a U.S.
savings and loan association, and not more than 18 months preceding
such date of sale in the case of a foreign savings and loan
association or equivalent institution.
-- Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
-- Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
-- State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
-- ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
-- Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
-- QIB Subsidiary. All of the Transferee's equity owners are "qualified
institutional buyers" within the meaning of Rule 144A.
-- Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
3. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee did not
include (i) securities of issuers that are affiliated with such Person, (ii)
securities that are part of an unsold allotment to or subscription by such
Person, if such Person is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
E-2A-4
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee used the
cost of such securities to such Person, unless such Person reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of such Person, but only if such subsidiaries
are consolidated with such Person in its financial statements prepared in
accordance with generally accepted accounting principles and if the investments
of such subsidiaries are managed under such Person's direction. However, such
securities were not included if such Person is a majority-owned, consolidated
subsidiary of another enterprise and such Person is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee may be in reliance on Rule 144A.
--- --- Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
Print Name of Transferee
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
Date:
----------------------------------
E-2A-5
ANNEX 2 TO EXHIBIT E-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the mortgage pass-through certificates (the "Transferred
Certificates") described in the Transferee certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933, as amended ("Rule 144A") because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee alone
owned and/or invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Transferee or the Transferee's Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
-- The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
-- The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
E-2A-6
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
--- --- Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
Print Name of Transferee or Adviser
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
IF AN ADVISER:
Print Name of Transferee
Date:
----------------------------------
E-2A-7
EXHIBIT E-2B
FORM II OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF
NON-REGISTERED CERTIFICATES HELD IN PHYSICAL FORM
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, National Association
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Trust 2002-PBW1
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2002-PBW1, Class ______ Certificates [having an initial
aggregate Certificate [Principal Balance] [Notional
Amount] as of October 3, 2002 (the "Closing Date") of
$__________] [evidencing a ____% Percentage Interest in
the related Class] (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee")
through our respective Depository Participants of the Transferor's beneficial
ownership interest (currently maintained on the books and records of The
Depository Trust Company ("DTC") and the Depository Participants) in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of October 1, 2002 (the "Pooling and Servicing Agreement"), among Bear
▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., as Depositor, Prudential Asset
Resources, Inc., as a Master Servicer and RREEF Textron Special Servicer, ▇▇▇▇▇
Fargo Bank, National Association, as a Master Servicer, ARCap Special Servicing,
Inc., as General Special Servicer, LaSalle Bank National Association, as
Trustee, ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as Certificate
Administrator and as Tax Administrator, ABN AMRO Bank N.V., as Fiscal Agent, and
The Prudential Insurance Company of America, as RREEF Textron B-Note Holder. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. Transferee is acquiring the Transferred Certificates for its own account
for investment and not with a view to or for sale or transfer in connection with
any distribution thereof, in whole or in part, in any manner which would violate
the Securities Act of 1933, as amended (the "Securities Act"), or any applicable
state securities laws.
E-2B-1
2. Transferee understands that (a) the Transferred Certificates have not
been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the Depositor,
the Trustee, Certificate Administrator or the Certificate Registrar is obligated
so to register or qualify the Transferred Certificates, and (c) neither the
Transferred Certificates nor any security issued in exchange therefor or in lieu
thereof may be resold or transferred unless it is (i) registered pursuant to the
Securities Act and registered or qualified pursuant to any applicable state
securities laws or (ii) sold or transferred in a transaction which is exempt
from such registration and qualification and the Certificate Registrar has
received (A) a certificate from the prospective transferor substantially in the
form attached as Exhibit E-1A to the Pooling and Servicing Agreement; (B) a
certificate from the prospective transferor substantially in the form attached
as Exhibit E-1B to the Pooling and Servicing Agreement and a certificate from
the prospective transferee substantially in the form attached either as Exhibit
E-2A or as Exhibit E-2B to the Pooling and Servicing Agreement; or (C) an
Opinion of Counsel satisfactory to the Certificate Registrar that the transfer
may be made without registration under the Securities Act, together with the
written certification(s) as to the facts surrounding the transfer from the
prospective transferor and/or prospective transferee upon which such Opinion of
Counsel is based.
3. The Transferee understands that it may not sell or otherwise transfer
the Transferred Certificates, any security issued in exchange therefor or in
lieu thereof or any interest in the foregoing except in compliance with the
provisions of Section 5.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, 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 5.02 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO
(A) ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
THAT IS SUBJECT TO SECTION 406 OR 407 OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
E-2B-2
[THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT
BEEN REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY
ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY,
THIS CERTIFICATE MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT TO [(1)] A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT (A "QUALIFIED INSTITUTIONAL BUYER")
[OR (2) AN ACCREDITED INVESTOR WITHIN THE MEANING OF PARAGRAPH (1),
(2), (3) OR (7) OF RULE 501(a) OF REGULATION D UNDER THE SECURITIES ACT
OR AN ENTITY IN WHICH ALL THE EQUITY OWNERS CONSTITUTE ENTITIES
DESCRIBED IN SUCH PARAGRAPHS].]
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation by
means of general advertising or in any other manner, or (e) taken any other
action, that (in the case of any of the acts described in clauses (a) through
(e) above) would constitute a distribution of the Transferred Certificates under
the Securities Act, would render the disposition of the Transferred Certificates
a violation of Section 5 of the Securities Act or any state securities law or
would require registration or qualification of the Transferred Certificates
pursuant thereto. The Transferee will not act, nor has it authorized nor will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to the Transferred Certificates, any interest in the Transferred
Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Transferred Certificates and distributions thereon, (c)
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust Fund created pursuant thereto and (e) all
related matters, that it has requested.
6. The Transferee (a) is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities Act or an
entity in which all the equity owners come within such paragraphs or an
"accredited investor" within the meaning of paragraph (5) or (6) of such Rule
501(a) that is a person involved in the organization or operation of the Trust
(and, in the case of such an "accredited investor" within the meaning of
paragraph (5) or (6) of such Rule 501(a)), (i) the offer and sale of the
applicable Certificates to such investor was made solely within the State of New
York, (ii) the applicable Certificates are Non-Registered Certificates and (iii)
such investor is a director, officer or employee of an Underwriter that was an
initial purchaser from the Depositor of all or a portion of the Class of
Certificates to which such applicable Certificates belong) and (b) has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Transferred
Certificates; the Transferee has sought such accounting, legal and
E-2B-3
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.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
-------------------------------------------
(Transferee)
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
-------------------------------------------
(Nominee)
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
E-2B-4
EXHIBIT E-2C
FORM OF TRANSFEREE CERTIFICATE FOR CERTAIN
TRANSFERS OF INTERESTS IN RULE 144A GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2002-PBW1, Class __ Certificates having an initial
aggregate Certificate [Principal Balance] [Notional
Amount] as of October 3, 2002 (the "Closing Date") of
$[__________] (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
_________________ (the "Transferor") to _________________ (the "Transferee")
through our respective Depository Participants of the Transferor's beneficial
ownership interest (currently maintained on the books and records of The
Depository Trust Corporation ("DTC") and the Depository Participants) in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of October 1, 2002 (the "Pooling and Servicing Agreement"), among Bear
▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., as depositor (the "Depositor"),
Prudential Asset Resources, Inc., as a master servicer and as the RREEF Textron
Special Servicer, ▇▇▇▇▇ Fargo Bank National Association, as a master servicer,
ARCap Special Servicing Inc. as general special servicer, LaSalle Bank National
Association as trustee (the "Trustee"), ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as certificate administrator and as tax administrator, ABN AMRO
Bank N.V. as fiscal agent, and The Prudential Insurance Company of America, as
RREEF Textron B-Note holder. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
and agrees with you, and for the benefit of the Depositor, the Trustee and the
Certificate Registrar that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the
"Securities Act") and has completed one of the forms of certification
to that effect attached hereto as Annex 1 and Annex 2. The Transferee
is aware that the Transfer to it of the Transferor's interest in the
Transferred Certificates is being made in reliance on Rule 144A. The
Transferee is acquiring such interest in the Transferred Certificates
for its own account or for the account of a Qualified Institutional
Buyer.
E-2C-1
2. The Transferee understands that (a) the Transferred
Certificates have not been and will not be registered under the
Securities Act or registered or qualified under any applicable state
securities laws, (b) none of the Depositor, the Trustee, Certificate
Administrator or the Certificate Registrar is obligated so to register
or qualify the Transferred Certificates, and (c) neither the
Transferred Certificates nor any security issued in exchange therefor
or in lieu thereof may be resold or transferred unless it is (i)
registered pursuant to the Securities Act and registered or qualified
pursuant any applicable state securities laws or (ii) sold or
transferred in transactions which are exempt from such registration and
qualification and the Transferor desiring to effect such transfer has
received either (A) a certificate from the prospective transferee
substantially in the form attached either as Exhibit E-2C to the
Pooling and Servicing Agreement or as Exhibit E-2D to the Pooling and
Servicing Agreement or (B) an opinion of counsel satisfactory to the
Transferor to the effect that such transfer may be made without
registration under the Securities Act.
3. The Transferee understands that it may not sell or
otherwise transfer any Transferred Certificate, any security issued in
exchange therefor or in lieu thereof or any interest in the foregoing
except in compliance with the provisions of Section 5.02 of the Pooling
and Servicing Agreement, which provisions it has carefully reviewed,
and that each Transferred Certificate will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH
DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE
MADE (A) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT
THAT IS SUBJECT TO SECTION 406 OR 407 OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF, ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
[THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN
INTEREST HAS NOT BEEN REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY
ACT"). ACCORDINGLY, THIS CERTIFICATE MAY
E-2C-2
NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO (1) A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT (A "QUALIFIED INSTITUTIONAL BUYER") OR (2) AN ACCREDITED
INVESTOR WITHIN THE MEANING OF PARAGRAPH (1), (2), (3) OR (7) OF RULE
501(a) OF REGULATION D UNDER THE SECURITIES ACT OR AN ENTITY IN WHICH
ALL THE EQUITY OWNERS ARE DESCRIBED BY SUCH PARAGRAPHS (AN
"INSTITUTIONAL ACCREDITED INVESTOR").]
4. The Transferee has been furnished with all information
regarding (a) The Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the nature, performance and servicing of the
Mortgage Loans, (d) the Pooling and Servicing Agreement, and (e) all
related matters, that it has requested.
Very truly yours,
-------------------------------------------
(Transferee)
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
E-2C-3
ANNEX 1 TO EXHIBIT E-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and for the benefit of Prudential Securities Secured Financing
Corporation with respect to the mortgage pass-through certificates being
transferred in book-entry form (the "Transferred Certificates") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity acquiring interests in the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A")
because (i) [the Transferee] [each of the Transferee's equity owners] owned
and/or invested on a discretionary basis $______________________(1) in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
-- Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986.
-- Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any State, U.S. territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. bank, and not more than 18 months
preceding such date of sale for a foreign bank or equivalent
institution.
-- Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority
---------------------------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless
Transferee or any such equity owner, as the case may be, is a dealer,
and, in that case, Transferee or such equity owner, as the case may be,
must own and/or invest on a discretionary basis at least $10,000,000 in
securities.
E-2C-4
having supervision over any such institutions or is a foreign
savings and loan association or equivalent institution and (b) has
an audited net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements, a copy of which is attached
hereto, as of a date not more than 16 months preceding the date of
sale of the Transferred Certificates in the case of a U.S. savings
and loan association, and not more than 18 months preceding such
date of sale in the case of a foreign savings and loan association
or equivalent institution.
-- Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
-- Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
-- State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
-- ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
-- Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
-- QIB Subsidiary. All of the Transferee's equity owners are "qualified
institutional buyers" within the meaning of Rule 144A.
-- Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
3. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee did
not include (i) securities of issuers that are affiliated with such Person, (ii)
securities that are part of an unsold allotment to or subscription by such
Person, if such Person is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any such Person, the Transferee used
the cost of such securities to such Person, unless such Person reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market.
E-2C-5
Further, in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of such Person, but only if such subsidiaries
are consolidated with such Person in its financial statements prepared in
accordance with generally accepted accounting principles and if the investments
of such subsidiaries are managed under such Person's direction. However, such
securities were not included if such Person is a majority-owned, consolidated
subsidiary of another enterprise and such Person is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Transferred
Certificates are relying and will continue to rely on the statements made herein
because one or more Transfers to the Transferee may be in reliance on Rule 144A.
--- --- Will the Transferee be acquiring interests in the
Yes No Transferred Certificates only for the Transferee's own
account?
6. If the answer to the foregoing question is "no", then in each case where
the Transferee is acquiring any interest in the Transferred Certificates for an
account other than its own, such account belongs to a third party that is itself
a "qualified institutional buyer" within the meaning of Rule 144A, and the
"qualified institutional buyer" status of such third party has been established
by the Transferee through one or more of the appropriate methods contemplated by
Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's acquisition of any interest in of
the Transferred Certificates will constitute a reaffirmation of this
certification as of the date of such acquisition. In addition, if the Transferee
is a bank or savings and loan as provided above, the Transferee agrees that it
will furnish to such parties any updated annual financial statements that become
available on or before the date of such acquisition, promptly after they become
available.
8. Capitalized terms used but not defined herein have the meanings ascribed
thereto in the Pooling and Servicing Agreement pursuant to which the Transferred
Certificates were issued.
-------------------------------------------
(Transferee)
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
E-2C-6
ANNEX 2 TO EXHIBIT E-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and for the benefit of Prudential Securities Secured Financing
Corporation with respect to the mortgage pass-through certificates being
transferred in book-entry form (the "Transferred Certificates") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity acquiring interests in the Transferred Certificates (the "Transferee")
or, if the Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A")
because the Transferee is part of a Family of Investment Companies (as defined
below), is an executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
-- The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
-- The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment
E-2C-7
Companies, (ii) bank deposit notes and certificates of deposit, (iii) loan
participations, (iv) repurchase agreements, (v) securities owned but subject to
a repurchase agreement and (vi) currency, interest rate and commodity swaps. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Transferee, or owned by the Transferee's Family
of Investment Companies, the securities referred to in this paragraph were
excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
Transfers to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be acquiring interests in the
Yes No Transferred Certificates only for the Transferee's
own account?
6. If the answer to the foregoing question is "no", then in each case where
the Transferee is acquiring any interest in the Transferred Certificates for an
account other than its own, such account belongs to a third party that is itself
a "qualified institutional buyer" within the meaning of Rule 144A, and the
"qualified institutional buyer" status of such third party has been established
by the Transferee through one or more of the appropriate methods contemplated by
Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's acquisition of any interest in the Transferred
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such acquisition.
8. Capitalized terms used but not defined herein have the meanings ascribed
thereto in the Pooling and Servicing Agreement pursuant to which the Transferred
Certificates were issued.
-------------------------------------------
(Transferee or Adviser)
By:
-------------------------------------
Name:
Title:
IF AN ADVISER:
Print Name of Transferee
Date:
E-2C-8
EXHIBIT E-2D
FORM OF TRANSFEREE CERTIFICATE FOR
TRANSFERS OF INTERESTS IN REGULATION S GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2002-PBW1, Class __ Certificates having an initial
aggregate Certificate [Principal Balance] [Notional
Amount] as of October 3, 2002 (the "Closing Date") of
$[__________] (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
_________________ (the "Transferor") to _________________ (the "Transferee")
through our respective Depository Participants of the Transferor's beneficial
ownership interest (currently maintained on the books and records of The
Depository Trust Corporation ("DTC") and the Depository Participants) in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of October 1, 2002 (the "Pooling and Servicing Agreement"), among Bear
▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., as depositor (the "Depositor"),
Prudential Asset Resources, Inc., as a master servicer and as the RREEF Textron
Special Servicer, ▇▇▇▇▇ Fargo Bank National Association, as a master servicer,
ARCap Special Servicing Inc. as general special servicer, LaSalle Bank National
Association as trustee (the "Trustee"), ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as certificate administrator and as tax administrator, ABN AMRO
Bank N.V. as fiscal agent, and The Prudential Insurance Company of America, as
RREEF Textron B-Note holder. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
and agrees with you, and for the benefit of the Depositor, the Trustee and the
Certificate Registrar that:
1. The Transferee is acquiring the Transferor's beneficial
ownership interest in 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 Transferred
Certificates have not been and will not be registered under the
Securities Act or registered or qualified under any applicable state
securities laws, (b) none of the Depositor, the Trustee, Certificate
Administrator or the Certificate Registrar is obligated so to register
or qualify the
E-2D-1
Transferred Certificates, and (c) neither the Transferred Certificates
nor any security issued in exchange therefor or in lieu thereof may be
resold or transferred unless it is (i) registered pursuant to the
Securities Act and registered or qualified pursuant any applicable
state securities laws, or (ii) is sold or transferred in transactions
which are exempt from such registration and qualification and the
Transferor desiring to effect such transfer has received either (A) a
certificate from the prospective transferee substantially in the form
attached either as Exhibit E-2C to the Pooling and Servicing Agreement
or as Exhibit E-2D to the Pooling and Servicing Agreement or (B) an
opinion of counsel satisfactory to the Transferor to the effect that
such transfer may be made without registration under the Securities
Act.
3. The Transferee understands that it may not sell or
otherwise transfer any Transferred Certificate, any security issued in
exchange therefor or in lieu thereof or any interest in the foregoing
except in compliance with the provisions of Section 5.02 of the Pooling
and Servicing Agreement, which provisions it has carefully reviewed,
and that each Transferred Certificate will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH
DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE
MADE (A) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT
THAT IS SUBJECT TO SECTION 406 OR 407 OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF, ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
[THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN
INTEREST HAS NOT BEEN REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY
ACT"). ACCORDINGLY, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO [(1)] A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT (A "QUALIFIED INSTITUTIONAL BUYER") [OR (2) AN
ACCREDITED
E-2D-2
INVESTOR WITHIN THE MEANING OF PARAGRAPH (1), (2), (3) OR (7) OF RULE
501(a) OF REGULATION D UNDER THE SECURITIES ACT OR AN ENTITY IN WHICH
ALL THE EQUITY OWNERS ARE DESCRIBED BY SUCH PARAGRAPHS (AN
"INSTITUTIONAL ACCREDITED INVESTOR")].]
4. 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 Transferred Certificate or
any other similar security with any person in any manner, (d) made any
general solicitation with respect to any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security
by means of general advertising or in any other manner, or (e) taken
any other action with respect to any Transferred Certificate, any
interest in 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.
5. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the Pooling and Servicing Agreement and the
Trust Fund created pursuant thereto, (d) the nature, performance and
servicing of the Mortgage Loans, and (e) all related matters, that it
has requested.
E-2D-3
6. 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
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
investment and can afford a complete loss of such investment.
Very truly yours,
By:
-----------------------------------
Name:
Title:
E-2D-4
EXHIBIT E-3A
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFER OF THE EXCESS SERVICING FEE RIGHTS
[Date]
Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates,
Series 2002-PBW1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Excess Servicing Fee Right established under the Pooling and Servicing
Agreement, dated as of October 1, 2002 (the "Pooling and Servicing Agreement"),
among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., as depositor (the
"Depositor"), Prudential Asset Resources, Inc. as a master servicer and as RREEF
Textron special servicer, ▇▇▇▇▇ Fargo Bank, National Association, as a master
servicer, ARCap Special Servicing, Inc., as general special servicer, LaSalle
Bank National Association, as trustee, ▇▇▇▇▇ Fargo Bank Minnesota, National
Association as certificate administrator and as tax administrator, ABN AMRO Bank
N.V. as fiscal agent and The Prudential Insurance Company of America, as RREEF
Textron B-Note holder. All capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Depositor, that:
1. The Transferor is the lawful owner of the Excess Servicing Rights, with
the full right to transfer the Excess Servicing Fee Right free from any and all
claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of the Excess Servicing Fee
Right, any interest in the Excess Servicing Fee Right or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of the Excess Servicing Fee Right, any
interest in the Excess Servicing Fee Right or any other similar security from
any person in any manner, (c) otherwise approached or negotiated with respect to
the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right
or any other similar security with any person in any manner, (d) made any
general solicitation with respect to the Excess Servicing Fee Right, any
interest in the Excess Servicing Fee Right or any other similar security by
means of general advertising or in any other manner, or (e) taken any other
action, which (in
E-3A-1
the case of any of the acts described in clauses (a) through (e) hereof) would
constitute a distribution of the Excess Servicing Fee Right under the Securities
Act of 1933, as amended (the "Securities Act"), or would render the disposition
of the Excess Servicing Fee Right a violation of Section 5 of the Securities Act
or any state securities laws, or would require registration or qualification of
the Excess Servicing Fee Right pursuant to the Securities Act or any state
securities laws.
Very truly yours,
By:
-----------------------------------
Name:
Title:
E-3A-2
EXHIBIT E-3B
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFER OF THE EXCESS SERVICING FEE RIGHTS
[Date]
Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Prudential Asset Resources, Inc. [or successor master servicer]
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, National Association [or successor master servicer]
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates,
Series 2002-PBW1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Excess Servicing Fee Right established under the Pooling and Servicing
Agreement, dated as of October 1, 2002 (the "Pooling and Servicing Agreement"),
among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., as depositor (the
"Depositor"), Prudential Asset Resources, Inc. as a master servicer and as RREEF
Textron special servicer, ▇▇▇▇▇ Fargo Bank, National Association, as a master
servicer, ARCap Special Servicing, Inc., as general special servicer, LaSalle
Bank National Association, as trustee, ▇▇▇▇▇ Fargo Bank Minnesota, National
Association as certificate administrator and as tax administrator, ABN AMRO Bank
N.V. as fiscal agent and The Prudential Insurance Company of America, as RREEF
Textron B-Note holder. All capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
the Depositor, a Master Servicer and a Master Servicer, that:
1. The Transferee is acquiring the Excess Servicing Fee Right for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
E-3B-1
2. The Transferee understands that (a) the Excess Servicing Fee Right has
not been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the Depositor,
the Trustee, Certificate Administrator or the Certificate Registrar is obligated
so to register or qualify the Excess Servicing Fee Right, and (c) the Excess
Servicing Fee Right may not be resold or transferred unless it is (i) registered
pursuant to the Securities Act and registered or qualified pursuant any
applicable state securities laws or (ii) sold or transferred in transactions
which are exempt from such registration and qualification and (A) the Depositor
has received a certificate from the prospective transferor substantially in the
form attached as Exhibit E-3A to the Pooling and Servicing Agreement, and (B)
each of the Master Servicers and the Depositor have received a certificate from
the prospective transferee substantially in the form attached as Exhibit E-3B to
the Pooling and Servicing Agreement.
3. The Transferee understands that it may not sell or otherwise transfer
the Excess Servicing Fee Right or any interest therein except in compliance with
the provisions of Section 3.11 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred the Excess Servicing Fee
Right, any interest in the Excess Servicing Fee Right or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
pledge, disposition or other transfer of the Excess Servicing Fee Right, any
interest in the Excess Servicing Fee Right or any other similar security from
any person in any manner, (c) otherwise approached or negotiated with respect to
the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right
or any other similar security with any person in any manner, (d) made any
general solicitation with respect to the Excess Servicing Fee Right, any
interest in the Excess Servicing Fee Right or any other similar security by
means of general advertising or in any other manner, or (e) taken any other
action with respect to the Excess Servicing Fee Right, any interest in the
Excess Servicing Fee Right or any other similar security, which (in the case of
any of the acts described in clauses (a) through (e) above) would constitute a
distribution of the Excess Servicing Fee Right under the Securities Act, would
render the disposition of the Excess Servicing Fee Right a violation of Section
5 of the Securities Act or any state securities law or would require
registration or qualification of the Excess Servicing Fee Right pursuant
thereto. The Transferee will not act, nor has it authorized or will it authorize
any person to act, in any manner set forth in the foregoing sentence with
respect to the Excess Servicing Fee Right, any interest in the Excess Servicing
Fee Right or any other similar security.
5. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Excess Servicing Fee Right and payments thereon, (c) the
Pooling and Servicing Agreement and the Trust Fund created pursuant thereto, (d)
the nature, performance and servicing of the Mortgage Loans, and (e) all related
matters, that it has requested.
6. The Transferee is (a) a "qualified institutional buyer" within the
meaning of Rule 144A under the Securities Act or (b) an "accredited investor" as
defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the
Securities Act or an entity in which all of the equity owners come within such
paragraphs. The Transferee has such knowledge and
E-3B-2
experience in financial and business matters as to be capable of evaluating the
merits and risks of an investment in the Excess Servicing Fee Right; the
Transferee has sought such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision; and the Transferee is able to
bear the economic risks of such investment and can afford a complete loss of
such investment.
7. The Transferee agrees (i) to keep all information relating
to the Trust and the Trust Fund, and made available to it by each Master
Servicer, confidential, (ii) not to use or disclose such information in any
manner which could result in a violation of any provision of the Securities Act
or would require registration of the Excess Servicing Fee Right or any
Certificate pursuant to the Securities Act, and (iii) not to disclose such
information, and to cause its officers, directors, partners employees, agents or
representatives not to disclose such information, in any manner whatsoever, in
whole or in part, to any other Person other than such holder's auditors, legal
counsel and regulators, except to the extent such disclosure is required by law,
court order or other legal requirement or to the extent such information is of
public knowledge at the time of disclosure by such holder or has become
generally available to the public other than as a result of disclosure by such
holder; provided, however, that such holder may provide all or any part of such
information to any other Person who is contemplating an acquisition of the
Excess Servicing Fee Right if, and only if, such Person (x) confirms in writing
such prospective acquisition and (y) agrees in writing to keep such information
confidential, not to use or disclose such information in any manner which could
result in a violation of any provision of the Securities Act or would require
registration of the Excess Servicing Fee Right or any Certificates pursuant to
the Securities Act and not to disclose such information, and to cause its
officers, directors, partners, employees, agents or representatives not to
disclose such information, in any manner whatsoever, in whole or in part, to any
other Person other than such Persons' auditors, legal counsel and regulators.
8. The Transferee acknowledges that the holder of the Excess
Servicing Fee Right shall not have any rights under the Pooling and Servicing
Agreement except as set forth in Section 3.11(a) of the Pooling and Servicing
Agreement, and that the Excess Servicing Fee Rate may be reduced to the extent
provided in the Pooling and Servicing Agreement.
Very truly yours,
By:
-----------------------------------
Name:
Title:
E-3B-3
EXHIBIT F-1
FORM OF TRANSFEREE CERTIFICATE IN CONNECTION WITH ERISA
(NON-REGISTERED CERTIFICATES AND NON-INVESTMENT GRADE
CERTIFICATES HELD IN FULLY REGISTERED, CERTIFICATED FORM)
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, National Association
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Trust 2002-PBW1
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2002-PBW1, Class ______ Certificates [having an initial
aggregate Certificate [Principal Balance] [Notional
Amount] as of October 3, 2002 (the "Closing Date") of
$__________] [evidencing a ____% Percentage Interest in
the related Class] (the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Transferred Certificates pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of October
1, 2002 among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., as Depositor,
Prudential Asset Resources, Inc., as Master Servicer and RREEF Textron Special
Servicer, ▇▇▇▇▇ Fargo Bank, National Association, as a Master Servicer, ARCap
Special Servicing, Inc., as General Special Servicer, LaSalle Bank National
Association, as Trustee, ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as
Certificate Administrator and as Tax Administrator, ABN AMRO Bank N.V., as
Fiscal Agent, and The Prudential Insurance Company of America, as RREEF Textron
B-Note Holder. All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you as Certificate
Registrar, as follows (check the applicable paragraph):
-- The Transferee is neither (A) a retirement plan or other employee
benefit plan or arrangement, including an individual retirement
account or annuity, a ▇▇▇▇▇ plan or a collective investment fund or
separate account in which such plans, accounts or arrangements are
invested, including an insurance company general account, that is
subject to ERISA or Section 4975 of the Code (each, a "Plan"), nor
(B) a Person who is
F-1-1
directly or indirectly purchasing the Transferred Certificates on
behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or
-- The Transferee is using funds from an insurance company general
account to acquire the Transferred Certificates, however, the
purchase and holding of such Certificates by such Person is exempt
from the prohibited transaction provisions of Section 406 of ERISA
and Section 4975 of the Code under Sections I and III of Prohibited
Transaction Class Exemption 95-60.
-- The Transferred Certificates are Class ___ Certificates, an interest
in which is being acquired by or on behalf of a Plan in reliance on
one of the individual prohibited transaction exemptions issued by
the U.S. Department of Labor to __________________ (PTE 90-30 or
90-29), and such Plan (X) is an accredited investor as defined in
Rule 501(a)(1) of Regulation D of the Securities Act, (Y) is not
sponsored (within the meaning of Section 3(16)(B) of ERISA) by the
Trustee, the Depositor, the Fiscal Agent, the Mortgage Loan Seller,
either Master Servicer, either Special Servicer, any Sub-Servicer,
any Exemption-Favored Party or any Borrower with respect to any
Mortgage Loan or group of Mortgage Loans that represents more than
5% of the aggregate unamortized principal balance of the Mortgage
Loans determined on the date of the initial issuance of the
Certificates, or by an Affiliate of any such Person, and (Z) agrees
that it will obtain from each of its Transferees to which it
transfers an interest in the Transferred Certificates, a written
representation that such Transferee, if a Plan, satisfies the
requirements of the immediately preceding clauses (X) and (Y),
together with a written agreement that such Transferee will obtain
from each of its Transferees that are Plans a similar written
representation regarding satisfaction of the requirements of the
immediately preceding clauses (X) and (Y).
Very truly yours,
[TRANSFEREE]
By:
-----------------------------------
Name:
Title:
F-1-2
EXHIBIT F-2
FORM OF TRANSFEREE CERTIFICATE IN CONNECTION WITH ERISA
(NON-REGISTERED CERTIFICATES HELD IN BOOK ENTRY FORM)
[Date]
[TRANSFEROR]
Re: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2002-PBW1, Class ____ Certificates [having an initial
aggregate [Principal Balance] [Notional Amount] as of
October 3, 2002 (the "Closing Date") of $__________]
(the "Transferred Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
______________________ (the "Transferor") to _________________ (the
"Transferee") through our respective DTC Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Corporation ("DTC") and the Depository Participants) in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of October 1, 2002 (the "Pooling and Servicing Agreement"), among Bear
▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., as Depositor, Prudential Asset
Resources, Inc., as a Master Servicer and RREEF Textron Special Servicer, ▇▇▇▇▇
Fargo Bank, National Association, as a Master Servicer, ARCap Special Servicing
Inc., as General Special Servicer, LaSalle Bank National Association, as
Trustee, ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as Certificate
Administrator and Tax Administrator, ABN AMRO Bank N.V., as Fiscal Agent, and
The Prudential Insurance Company of America, as RREEF Textron B-Note Holder. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you as follows (check
the applicable paragraph):
-- The Transferee is neither (A) a retirement plan, an employee benefit
plan or other retirement arrangement, including an individual
retirement account or annuity, a ▇▇▇▇▇ plan or a collective
investment fund or separate account in which such plans, accounts or
arrangements are invested, including an insurance company general
account, that is subject to Section 406 of ERISA or Section 4975 of
the Code (each, a "Plan"), nor (B) a Person who is directly or
indirectly purchasing an interest in the Transferred Certificates on
behalf of, as named fiduciary of, as trustee of, or with assets of,
a Plan;
-- The Transferee is using funds from an insurance company general
account to acquire an interest in the Transferred Certificates,
however, the purchase and holding of such
F-2-1
interest by such Person is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code
under Sections I and III of Prohibited Transaction Class Exemption
95-60; or
--- The Transferred Certificates are Class ____ Certificates, an
interest in which is being acquired by or on behalf of a Plan in
reliance on one of the individual prohibited transaction exemptions
issued by the U.S. Department of Labor to __________________ (PTE
90-30 or 90-29), and such Plan (X) is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act, (Y)
is not sponsored (within the meaning of Section 3(16)(B) of ERISA)
by the Trustee, the Depositor, the Fiscal Agent, the Mortgage Loan
Seller, either Master Servicer, either Special Servicer, any
Sub-Servicer, any Exemption-Favored Party or any Borrower with
respect to any Mortgage Loan or group of Mortgage Loans that
represents more than 5% of the aggregate unamortized principal
balance of the Mortgage Loans determined on the date of the initial
issuance of the Certificates, or by an Affiliate of any such Person,
and (Z) agrees that it will obtain from each of its Transferees to
which it transfers an interest in the Transferred Certificates, a
written representation that such Transferee, if a Plan, satisfies
the requirements of the immediately preceding clauses (X) and (Y),
together with a written agreement that such Transferee will obtain
from each of its Transferees that are Plans a similar written
representation regarding satisfaction of the requirements of the
immediately preceding clauses (X) and (Y).
[TRANSFEREE]
By:
-------------------------
Name:
Title:
F-2-2
EXHIBIT G-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF CLASS R 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 ▇▇▇▇▇▇▇ Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2002-PBW1, Class R, evidencing a __% Percentage Interest in such Class (the
"Residual Interest 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 pursuant to which the Residual Interest 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, a possession of the United States, Non-United
States Tax Person, domestic partnership whose beneficial interests are not all
held by United States Person (as defined below) or a foreign permanent
establishment or fixed base (each within the meaning of an applicable income tax
treaty) of a United States Person. (For this purpose, a "Disqualified
Organization" means the United States, any state or political subdivision
thereof, any agency or instrumentality of any of the foregoing (other than an
instrumentality, all of the activities of which are subject to tax and, except
for the Federal Home Loan Mortgage Corporation, a majority of whose board of
directors is not selected by any such governmental entity) or any foreign
government, international organization or any agency or instrumentality of such
foreign government or organization, any rural electric or telephone cooperative,
or any organization (other than certain farmers' cooperatives) that is generally
exempt from federal income tax unless such organization is subject to the tax on
unrelated business taxable income).
3. The Transferee is aware (i) of the tax that would be imposed under the
Code on transfers of the Residual Interest Certificates to non-Permitted
Transferees; (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,
G-1-1
such Person does not have actual knowledge that the affidavit is false; and (iv)
that the Residual Interest Certificates may be a "noneconomic residual interest"
within the meaning of Treasury regulation Section 1.860E-1(c) and that the
transferor of a noneconomic residual interest will remain liable for any taxes
due with respect to the income on such residual interest, unless no significant
purpose of the transfer is to enable the transferor to impede the assessment or
collection of tax.
4. The Transferee is aware of the tax imposed on a "pass-through entity"
holding the Residual Interest Certificates if at any time during the taxable
year of the pass-through entity a non-Permitted Transferee is the record holder
of an interest in such entity. (For this purpose, a "pass-through entity"
includes a regulated investment company, a real estate investment trust or
common trust fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not register
any transfer of the Residual Interest Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
6. The Transferee consents to any additional restrictions or arrangements
that shall be deemed necessary upon advice of counsel to constitute a reasonable
arrangement to ensure that the Residual Interest Certificates will only be
owned, directly or indirectly, by a Permitted Transferee. In addition, the
Transferee will honor all of the restrictions set forth herein upon any
subsequent transfer of the Residual Interest Certificates.
7. The Transferee's taxpayer identification number is _________________.
8. The Transferee has reviewed the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement, a description of which provisions is set forth
in the Residual Interest Certificates (in particular, clause (ii)(A) of Section
5.02(d) which authorizes the Trustee to deliver payments on the Residual
Interest Certificates to a Person other than the Transferee and clause (ii)(B)
of Section 5.02(d) which authorizes the Trustee to negotiate a mandatory sale of
the Residual Interest Certificates, in either case, in the event that the
Transferee holds such Residual Interest Certificates in violation of Section
5.02(d)); and the Transferee expressly agrees to be bound by and to comply with
such provisions.
9. No purpose of the Transferee relating to its purchase or any sale of the
Residual Certificates is or will be to impede the assessment or collection of
any tax.
10. The Transferee will not cause income with respect to the Residual
Interest Certificates to be attributable to a foreign permanent establishment or
fixed base (with the meaning of an applicable income tax treaty) of the
Transferee or any other United States Person.
11. For purposes of Treasury Regulations Section 1.860E-1: [Check the
statement that applies]
G-1-2
-- the present value of the anticipated tax liabilities associated with
holding the Residual Interest Certificates, as applicable, does not
exceed the sum of:
i. the present value of any consideration given to the
Transferee to acquire such Residual Interest Certificates;
ii. the present value of the expected future distributions on
such Residual Interest Certificates; and
iii. the present value of the anticipated tax savings associated
with holding such Residual Interest Certificates as the
related REMIC generates losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of
the Code (but the tax rate in Section 55(b)(1)(B) of the Code may be
used in lieu of the highest rate specified in Section 11(b) of the
Code if the Transferee has been subject to the alternative minimum
tax under Section 55 of the Code in the preceding two years and will
compute its taxable income in the current taxable year using the
alternative minimum tax rate) and (ii) present values are computed
using a discount rate equal to the short-term Federal rate
prescribed by Section 1274(d) of the Code for the month of the
transfer and the compounding period used by the Transferee;
-- the transfer of the Residual Interest Certificates complies with
U.S. Treasury Regulations Sections 1.860E-1(c)(5) and (6) and,
accordingly,
i. the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to
which the income from the Residual Interest Certificates will
only be taxed in the United States,
ii. at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the
transfer, the Transferee had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S. Treasury
Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
iii. the Transferee will transfer the Residual Interest
Certificates only to another "eligible corporation," as
defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the
requirements of Sections 1.860E-1(c)(4)(i), (ii) and (iii)
and Section 1.860E-1(c)(5) of the U.S. Treasury Regulations;
and
G-1-3
iv. the Transferee determined the consideration paid to it to
acquire the Residual Interest Certificates based on
reasonable market assumptions (including, but not limited to,
borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax rates
and other factors specific to the Transferee) that it has
determined in good faith.
-- none of the above.
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.
For purposes of this Affidavit, a "United States Person" is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in, or under the laws of, the United States or any
political subdivision thereof, an estate whose income from sources without the
United States is includible in gross income for United States federal income tax
purposes regardless of its connection with the conduct of a trade or business
within the United States or a trust as to which (i) a court in the United States
is able to exercise primary supervision over the administration of the trust and
(ii) one or more United States fiduciaries have the right to control all
substantial decisions of the trust.
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,
attested by its [Assistant] Secretary, this ______ day of ______________.
[NAME OF TRANSFEREE]
By:
--------------------------------
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
---------------------------
[Assistant] Secretary
Personally appeared before me the above-named ____________________, known
or proved to me to be the same person who executed the foregoing instrument and
to be the ____________________ of the Transferee, and acknowledged to me that
he/she executed the same as his/her free act and deed and the free act and deed
of the Transferee
G-1-4
Subscribed and sworn before me this ______ day of
__________________, ________.
---------------------------
NOTARY PUBLIC
COUNTY OF
-------------------------
STATE OF
-------------------------
My Commission expires the _________ day of ___________, 20__.
G-1-5
EXHIBIT G-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
CLASS R CERTIFICATES
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, National Association
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Trust 2002-PBW1
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series
2002-PBW1, Class R Certificates, evidencing a ____%
Percentage Interest in such Class (the "Residual
Interest Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Transferred Certificates pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of October
1, 2002 among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., as Depositor,
Prudential Asset Resources, Inc., as Master Servicer and RREEF Textron Special
Servicer, ▇▇▇▇▇ Fargo Bank, National Association, as a Master Servicer, ARCap
Special Servicing, Inc., as General Special Servicer, LaSalle Bank National
Association, as Trustee, ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as
Certificate Administrator and as Tax Administrator, ABN AMRO Bank N.V., as
Fiscal Agent, and The Prudential Insurance Company of America, as RREEF Textron
B-Note Holder. All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferor hereby certifies, represents and warrants to you as Certificate
Registrar, as follows (check the applicable paragraph):
1. No purpose of the Transferor relating to the transfer of the Residual
Interest Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to you a
Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement as Exhibit G-1. The Transferor does not know or believe that
any representation contained therein is false.
G-2-1
3. The Transferor has at the time of this transfer conducted a reasonable
investigation of the financial condition of the Transferee (or the beneficial
owners of the Transferee if the Transferee is classified as a partnership under
the Code) as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and,
as a result of that investigation, the Transferor has determined that the
Transferee has historically paid its debts as they became due and has found no
significant evidence to indicate that the Transferee will not continue to pay
its debts as they become due in the future. The Transferor understands that the
transfer of the Residual Interest Certificates may not be respected for United
States income tax purposes (and the Transferor may continue to be liable for
United States income taxes associated therewith) unless the Transferor has
conducted such an investigation.
Very truly yours,
By:
------------------------------
(Transferor)
Name:
Title:
G-2-2
EXHIBIT H-1
FORM OF NOTICE AND ACKNOWLEDGMENT
CONCERNING REPLACEMENT OF SPECIAL SERVICER
[Date]
▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: __________________
Fitch, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: __________________
Re: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2002-PBW1
------------------------------------------------------------
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 3.25 of the
Pooling and Servicing Agreement, dated as of October 1, 2002 (the "Agreement")
among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., as Depositor, Prudential
Asset Resources, Inc., as a Master Servicer and as RREEF Textron Special
Servicer, ▇▇▇▇▇ Fargo Bank, National Association, as a Master Servicer, ARCap
Special Servicing Inc., as General Special Servicer, the undersigned as Trustee,
▇▇▇▇▇ Fargo Bank Minnesota, National Association, as Certificate Administrator
and as Tax Administrator, ABN AMRO Bank N.V., as Fiscal Agent, and The
Prudential Insurance Company of America, as RREEF Textron B-Note Holder, and
relating to Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2002-PBW1 (the "Certificates").
Capitalized terms used but not otherwise defined herein shall have respective
meanings assigned to them in the Agreement.
Notice is hereby given that ____________________________________
has designated ________________________________ to serve as the [RREEF Textron]
[General] Special Servicer under the Agreement.
The designation of ____________________________ as [RREEF Textron]
[General] Special Servicer will become final if certain conditions are met and
each Rating Agency delivers to LaSalle Bank National Association, the trustee
under the Agreement (the "Trustee"), written confirmation that if the person
designated to become the [RREEF Textron] [General] Special Servicer were to
serve as such, such event would not result in an Adverse Rating Event with
respect to any Class of the Certificates. Accordingly, such confirmation is
hereby requested as soon as possible.
H-1-1
Please acknowledge receipt of this notice by signing the enclosed
copy of this notice where indicated below and returning it to the Trustee, in
the enclosed stamped self-addressed envelope.
Very truly yours,
LASALLE BANK NATIONAL ASSOCIATION
__________________________________
Name:
Title:
Receipt acknowledged:
▇▇▇▇▇'▇ INVESTORS SERVICE, INC.
By: ____________________________
Name:
Title:
Date:
FITCH, INC.
By: ____________________________
Name:
Title:
Date:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
[CERTIFICATE ADMINISTRATOR]
[TRUSTEE]
[MASTER SERVICER]
[SPECIAL SERVICERS]
[DEPOSITOR]
Re: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2002-PBW1
------------------------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 3.25 of the Pooling and Servicing Agreement,
dated as of October 1, 2002 relating to Bear ▇▇▇▇▇▇▇ Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series 2002-PBW1
(the "Agreement"), the undersigned hereby agrees with all the other parties to
the Agreement that the undersigned shall serve as [RREEF Textron] [General]
Special Servicer under, and as defined in, the Agreement. The undersigned hereby
acknowledges and agrees that, as of the date hereof, it is and shall be a party
to the Agreement and bound thereby to the full extent indicated therein in the
capacity of [RREEF Textron] [General] Special Servicer. The undersigned hereby
makes, as of the date hereof, the representations and warranties set forth in
Section 2.06 of the Agreement, with the following corrections with respect to
type of entity and jurisdiction of organization: ____________________.
___________________________
By:________________________
Name:
Title:
H-2-1
EXHIBIT I
FORM OF UCC-1 FINANCING STATEMENT
DEBTOR:
Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
SECURED PARTY:
LaSalle Bank National Association
as Trustee for the registered holders of
Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through
Certificates, Series 2002-PBW1
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Asset Backed Securities Trust
Services Group--Bear ▇▇▇▇▇▇▇, 2002-PBW1
TEXT:
See Exhibit I Attached Hereto
I-1
EXHIBIT I to EXHIBIT I
----------------------
This Exhibit I is attached to and incorporated in a financing
statement pertaining to Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc. as
depositor (referred to as the "Debtor" for the purpose of this financing
statement only), and LaSalle Bank National Association as trustee for the
holders of the Series 2002-PBW1 Certificates (referred to as the "Secured Party"
for purposes of this financing statement only), under that certain Pooling and
Servicing Agreement, dated as of October 1, 2002 (the "Pooling and Servicing
Agreement"), among the Debtor as depositor, the Secured Party as trustee,
Prudential Asset Resources, Inc. as a master servicer (in such capacity, the
"Master Servicer") and special servicer for the RREEF Textron Mortgage Loan Pair
(in such capacity, the "RREEF Textron Special Servicer"), ▇▇▇▇▇ Fargo Bank,
National Association, as a Master Servicer, ARCap Special Servicing, Inc. as
special servicer for all mortgage loans other then the RREEF Textron Mortgage
Loan Pair (in such capacity, the "General Special Servicer"), ▇▇▇▇▇ Fargo Bank
Minnesota, National Association, as Certificate Administrator and as Tax
Administrator, ABN AMRO Bank N.V. as Fiscal Agent, and The Prudential Insurance
Company of America as RREEF Textron B-note holder, relating to the issuance of
the Debtor's Commercial Mortgage Pass-Through Certificates, Series 2002-PBW1
(collectively, the "Series 2002-PBW1 Certificates"). Capitalized terms used
herein and not defined shall have the respective meanings given to them in the
Pooling and Servicing Agreement. The attached financing statement covers all of
the Debtor's right (including the power to convey title thereto), title and
interest in and to the Trust Fund created pursuant to the Pooling and Servicing
Agreement, consisting of the following:
1. The mortgage notes or other evidence of indebtedness
of a borrower (the "Mortgage Notes") with respect to
the mortgage loans (the "Mortgage Loans") listed on
the Schedule of Mortgage Loans to the Pooling and
Servicing Agreement, which Schedule of Mortgage Loans
is attached hereto as Exhibit A;
2. The related mortgages, deeds of trust or other
similar instruments securing such Mortgage Notes (the
"Mortgages");
3. With respect to each Mortgage Note and each Mortgage,
each other legal, credit and servicing document
related to such Mortgage Note and Mortgage
(collectively, with such related Mortgage Note and
Mortgage, the "Mortgage Loan Documents");
4. (a) the Collection Account maintained by each of the
Master Servicers pursuant to the Pooling and
Servicing Agreement, (b) all funds from time to time
on deposit in each Collection Account, (c) the
investments of any such funds consisting of
securities, instruments or other obligations, and (d)
the general intangibles consisting of the contractual
right to payment, including, without limitation, the
right to payments of principal and interest and the
right to enforce the related payment obligations,
arising from or under any such investments;
5. All REO Property;
I-2
6. (a) the respective REO Accounts required to be
maintained by the Special Servicers pursuant to the
Pooling and Servicing Agreement, (b) all funds from
time to time on deposit in each REO Account, (c) the
investments of any such funds consisting of
securities, instruments or other obligations, and (d)
the general intangibles consisting of the contractual
right to payment, including, without limitation, the
right to payments of principal and interest and the
right to enforce the related payment obligations,
arising from or under any such investments;
7. (a) the Servicing Account(s) and Reserve Account(s)
required to be maintained by the Master Servicers or
Special Servicers pursuant to the Pooling and
Servicing Agreement, and (b) all funds from time to
time on deposit in the Servicing Account(s) and
Reserve Account(s);
8. (a) the Excess Liquidation Proceeds Account(s) and
the Interest Reserve Account(s) required to be
maintained by the Certificate Administrator pursuant
to the Pooling and Servicing Agreement, and (b) all
funds from time to time on deposit in the Excess
Liquidation Proceeds Account(s) and the Interest
Reserve Account(s);
9. (a) the REO Account(s) required to be maintained by a
Special Servicer pursuant to the Pooling and
Servicing Agreement, and (b) all funds from time to
time on deposit in the REO Account(s);
10. a) the Distribution Account required to be maintained
by the Certificate Administrator on behalf of the
Secured Party pursuant to the Pooling and Servicing
Agreement, (b) all funds from time to time on deposit
in the Distribution Account, (c) the investments of
any such funds consisting of securities, instruments
or other obligations, and (d) the general intangibles
consisting of the contractual right to payment,
including, without limitation, the right to payments
of principal and interest and the right to enforce
the related payment obligations, arising from or
under any such investments;
11. The Mortgage Loan Purchase Agreements and all rights
of the Debtor thereunder.
12. All insurance policies, including the right to
payments thereunder, with respect to the Mortgage
Loans required to be maintained pursuant to the
Mortgage Loan Documents and the Pooling and Servicing
Agreement, transferred to the Trust and to be
serviced by the Master Servicer or Special Servicer;
and
13. All income, payments, products and proceeds of any of
the foregoing, together with any additions thereto or
substitutions therefor.
I-3
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS
CONTEMPLATED BY THE POOLING AND SERVICING AGREEMENT TO
CONSTITUTE A SALE OF THE INTEREST IN THE MORTGAGE NOTES, THE
RELATED MORTGAGES AND THE OTHER MORTGAGE LOAN DOCUMENTS, AND
THIS FILING SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT A
SALE HAS NOT OCCURRED. THE REFERENCES HEREIN TO MORTGAGE NOTES
SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT ANY MORTGAGE NOTE
IS NOT AN INSTRUMENT WITHIN THE MEANING OF THE UNIFORM
COMMERCIAL CODE OR THAT A FILING IS NECESSARY TO PERFECT THE
OWNERSHIP OR SECURITY INTEREST OF THE SECURED PARTY IN ANY
MORTGAGE NOTE, MORTGAGE OR OTHER MORTGAGE LOAN DOCUMENT. IN
ADDITION, THE REFERENCES HEREIN TO SECURITIES, INSTRUMENTS AND
OTHER OBLIGATIONS SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT
ANY SUCH SECURITY, INSTRUMENT OR OTHER OBLIGATION IS NOT AN
INSTRUMENT, A CERTIFICATED SECURITY OR AN UNCERTIFICATED
SECURITY WITHIN THE MEANING OF THE UNIFORM COMMERCIAL CODE, AS
IN EFFECT IN ANY APPLICABLE JURISDICTION, NOR SHOULD THIS
FINANCING STATEMENT BE CONSTRUED AS A CONCLUSION THAT A FILING
IS NECESSARY TO PERFECT THE OWNERSHIP OR SECURITY INTEREST OF
THE SECURED PARTY IN THE CONTRACTUAL RIGHT TO PAYMENT,
INCLUDING, WITHOUT LIMITATION, THE RIGHT TO PAYMENTS OF
PRINCIPAL AND INTEREST AND THE RIGHT TO ENFORCE THE RELATED
PAYMENT OBLIGATIONS, ARISING FROM OR UNDER ANY SUCH SECURITY,
INSTRUMENT OR OTHER OBLIGATION (INCLUDING, WITHOUT LIMITATION,
ANY PERMITTED INVESTMENT). WITH RESPECT TO THE FOREGOING, THIS
FILING IS MADE ONLY IN THE EVENT OF CONTRARY ASSERTIONS BY
THIRD PARTIES.
I-4
EXHIBIT A TO EXHIBIT I TO EXHIBIT I
SCHEDULE OF MORTGAGE LOANS
[See Schedule I]
I-5
EXHIBIT J-1
INFORMATION REQUEST FROM CERTIFICATEHOLDER
OR CERTIFICATE OWNER
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, National Association
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration (CMBS)
Re: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates,
Series 2002-PBW1
-------------------------------------------------
In accordance with the Pooling and Servicing Agreement, dated
as of October 1, 2002 (the "Pooling and Servicing Agreement"), among Bear
▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc. as Depositor, Prudential Asset
Resources, Inc. as a Master Servicer and as RREEF Textron Special Servicer,
▇▇▇▇▇ Fargo Bank, National Association, as a Master Servicer, ARCap Special
Servicing, Inc. as General Special Servicer, LaSalle Bank National Association
as Trustee, ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as Certificate
Administrator and as Tax Administrator, ABN AMRO Bank N.V. as Fiscal Agent, and
The Prudential Insurance Company of America as RREEF Textron B-Note Holder, with
respect to the Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc. Commercial
Mortgage Pass-Through Certificates, Series 2002-PBW1 (the "Certificates"), the
undersigned hereby certifies and agrees as follows:
1. The undersigned is a [holder] [beneficial holder] of
$___________ aggregate [Certificate Principal
Balance/Certificate Notional Amount] of the Class
____ Certificates.
2. The undersigned is requesting access to the following
information (the "Information"):
___ The information on the Master Servicer's
Internet Website pursuant to Section 3.12(d)
of the Pooling and Servicing Agreement.
___ The information on the Certificate
Administrator's Internet Website pursuant to
Section 4.02(a) of the Pooling and Servicing
Agreement.
___ The information identified on the schedule
attached hereto pursuant to Section 8.12(b)
of the Pooling and Servicing Agreement.
J-1-1
3. In consideration of the Certificate Administrator's
disclosure to the undersigned of the Information, the
undersigned will keep the Information confidential
(except from such outside persons as are assisting it
in evaluating the Information), and such Information
will not, without the prior written consent of the
Certificate Administrator, be disclosed by the
undersigned or by its officers, directors, partners
employees, agents or representatives (collectively,
the "Representatives") in any manner whatsoever, in
whole or in part; provided that the undersigned may
provide all or any part of the Information to any
other person or entity that holds or is contemplating
the purchase of any Certificate or interest therein,
but only if such person or entity confirms in writing
such ownership interest or prospective ownership
interest and agrees to keep it confidential; and
provided that the undersigned may provide all or any
part of the Information to its auditors, legal
counsel and regulators.
4. The undersigned will not use or disclose the
Information in any manner which could result in a
violation of any provision of the Securities Act of
1933, as amended (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended, or would
require registration of any Non-Registered
Certificate (as defined in the Pooling and Servicing
Agreement) pursuant to Section 5 of the Securities
Act.
All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be
signed hereto by its duly authorized officer, as of the day and year written
above.
_______________________________
[CERTIFICATEHOLDER] [BENEFICIAL
HOLDER OF A CERTIFICATE]
By: ___________________________
Name:
Title:
Telephone No.:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
INFORMATION REQUEST FROM PROSPECTIVE INVESTOR
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, National Association
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration (CMBS)
Re: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates,
Series 2002-PBW1
--------------------------------------------------
In accordance with the Pooling and Servicing Agreement, dated
as of October 1, 2002 (the "Pooling and Servicing Agreement"), among Bear
▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc. as Depositor, Prudential Asset
Resources, Inc. as a Master Servicer and as RREEF Textron Special Servicer,
▇▇▇▇▇ Fargo Bank, National Association, as a Master Servicer, ARCap Special
Servicing, Inc. as General Special Servicer, LaSalle Bank National Association
as Trustee, ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as Certificate
Administrator and as Tax Administrator, ABN AMRO Bank N.V. as Fiscal Agent, and
The Prudential Insurance Company of America as RREEF Textron B-Note Holder, with
respect to the Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc. Commercial
Mortgage Pass-Through Certificates, Series 2002-PBW1 (the "Certificates"), the
undersigned hereby certifies and agrees as follows:
1. The undersigned is contemplating an investment in the
Class ____ Certificates.
2. The undersigned is requesting access to the following
information (the "Information") for use in evaluating
such possible investment:
___ The information on the Master Servicer's
Internet Website pursuant to Section 3.12(d)
of the Pooling and Servicing Agreement.
___ The information on the Certificate
Administrator's Internet Website pursuant to
Section 4.02(a) of the Pooling and Servicing
Agreement.
___ The information identified on the
schedule attached hereto pursuant to Section
8.12(b) of the Pooling and Servicing
Agreement.
3. In consideration of the Certificate Administrator's
disclosure to the undersigned of the Information, the
undersigned will keep the Information
J-2-1
confidential (except from such outside persons as are
assisting it in making the investment decision
described in paragraphs 1 and 2), and such
Information will not, without the prior written
consent of the Certificate Administrator, be
disclosed by the undersigned or by its officers,
directors, partners employees, agents or
representatives (collectively, the "Representatives")
in any manner whatsoever, in whole or in part;
provided that in the event the undersigned purchases
any Certificate or any interest in any Certificate,
the undersigned may provide all or any part of the
Information to any other person or entity that holds
or is contemplating the purchase of any Certificate
or interest therein, but only if such person or
entity confirms in writing such ownership interest or
prospective ownership interest and agrees to keep it
confidential; and provided that the undersigned may
provide all or any part of the Information to its
auditors, legal counsel and regulators.
4. The undersigned will not use or disclose the
Information in any manner which could result in a
violation of any provision of the Securities Act of
1933, as amended (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended, or would
require registration of any Non-Registered
Certificate (as defined in the Pooling and Servicing
Agreement) pursuant to Section 5 of the Securities
Act.
All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be
signed hereto by its duly authorized officer, as of the day and year written
above.
[PROSPECTIVE PURCHASER]
By: ___________________________
Name:
Title:
Telephone No.:
J-2-2
EXHIBIT K
FORM OF POWER OF ATTORNEY BY TRUSTEE
RECORDING REQUESTED BY:
[NAME OF MASTER SERVICER
OR SPECIAL SERVICER]
AND WHEN RECORDED MAIL TO:
[ADDRESS OF MASTER SERVICER OR
SPECIAL SERVICER]
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL ASSOCIATION,
as trustee for Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2002-PBW1 ("Trustee"), under that
certain Pooling and Servicing Agreement dated as of October 1, 2002 (the
"Pooling and Servicing Agreement"), does hereby nominate, constitute and appoint
[NAME OF MASTER SERVICER OR SPECIAL SERVICER], as [Master Servicer] [Special
Servicer] under the Pooling and Servicing Agreement ("[SHORT NAME]"), as its
true and lawful attorney-in-fact for it and in its name, place, stead and for
its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable [SHORT NAME] to service and administer the applicable Mortgage Loans (as
defined in the Pooling and Servicing Agreement) in connection with the
performance by [SHORT NAME] of its duties as Master Servicer under the Pooling
and Servicing Agreement, giving and granting unto [SHORT NAME] full power and
authority to do and perform any and every act necessary, requisite, or proper in
connection with the foregoing and hereby ratifying, approving or confirming all
that [SHORT NAME] shall lawfully do or cause to be done by virtue hereof.
K-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 ▇▇▇▇▇▇▇ Commercial
Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates,
Series 2002-PBW1
By: ___________________________________
Name:_________________________________
Title:__________________________________
K-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)
K-3
EXHIBIT L
FORM OF AGREEMENT AMONG NOTE HOLDERS
--------------------------------------------------------------------------------
AGREEMENT AMONG NOTE HOLDERS
Dated as of September 30, 2002
by and between
PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC,
(Initial Note A Holder)
and
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
(Initial Note B Holder)
--------------------------------------------------------------------------------
THIS AGREEMENT AMONG NOTE HOLDERS (this "Agreement"), dated as
of September 30, 2002 (the "Agreement Date"), by and between PRUDENTIAL MORTGAGE
CAPITAL FUNDING , LLC (the "Initial Note A Holder") and THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA (the "Initial Note B Holder").
W I T N E S S E T H:
WHEREAS, the Initial Note A Holder has acquired seven
cross-collateralized and cross-defaulted mortgage loans originated by Prudential
Mortgage Capital Company, LLC in the total original aggregate principal amount
of $80,000,000 (each, a "Loan," together, the "Mortgage Loan") to seven
affiliated borrowers, as more particularly described on Exhibit ▇-▇, ▇▇▇▇▇▇▇
▇-▇, Exhibit A-4, Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, Exhibit A-7 and Exhibit A-8, each
corresponding to a Loan (together with Exhibit A-1 (as defined below), "Exhibit
A"), attached hereto.
WHEREAS, each Loan is evidenced by two promissory notes, as
identified on Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, Exhibit A-4, Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇,
Exhibit A-7 and Exhibit A-8 (each, an "Individual Loan Schedule"), respectively,
a Promissory Note A for each Loan (each, a "Promissory Note A," and
collectively, "Note A") in the original aggregate principal amount for the
related Loan, as set forth on the related Individual Loan Schedule, and a
Promissory Note B for each Loan (each, a "Promissory Note B, and collectively,
"Note B") in the original aggregate principal amount for the related Loan, as
set forth on the related Individual Loan Schedule;
WHEREAS, the Mortgage Loan is secured by first mortgage liens
(each, a "Mortgage"), as more particularly described in the attached Mortgage
Loan Schedules for each Loan, on parcels of real property located at the
locations set forth on Exhibits A-2 through A-8 hereto (each, a "Mortgaged
Property");
WHEREAS, the aggregated terms from each Individual Loan
Schedule are set forth in Exhibit A-1 (the "Combined Mortgage Loan Schedule");
WHEREAS, on April 23, 2002, the Initial Note A Holder sold
Note B to the Initial Note B Holder and the Initial Note B Holder purchased Note
B from the Initial Note A Holder;
WHEREAS, PMCF anticipates that it will sell Note A to ▇▇▇▇▇▇▇
▇▇▇▇▇ Bank USA, which may in turn sell Note A to Bear ▇▇▇▇▇▇▇ Commercial
Mortgage Securities, Inc. (the "Depositor") or another third party;
WHEREAS, in the event Note A is sold to the Depositor, the
Depositor, the Initial Note B Holder, LaSalle Bank National Association, as
trustee (together with its successors and permitted assigns in such capacity,
the "Trustee"), ABN AMRO Bank N.V., as fiscal agent (together with its
successors and permitted assigns in such capacity, the "Fiscal Agent"), ▇▇▇▇▇
Fargo Bank Minnesota, National Association, as certificate administrator and tax
administrator, ▇▇▇▇▇ Fargo Bank, National Association, as master servicer of
certain of the other mortgage loans held by the subject trust fund (the "Trust
Fund"), Prudential Asset Resources, Inc., as master servicer of the Mortgage
Loan and certain other mortgage loans held by the Trust Fund (together with its
successors and permitted assigns in such capacity, the "Master Servicer") and as
special servicer of the Mortgage Loan (together with its successors and
permitted assigns in such capacity, the "Special Servicer") and ARCap Special
Servicing, Inc., as special servicer of the other mortgage loans held by the
Trust Fund, intend to enter into a Pooling and Servicing Agreement, dated as of
October 1, 2002 (the "Pooling Agreement"), with respect to, among other things,
the servicing of the Mortgage Loan; and
WHEREAS, the Initial Note A Holder and the Initial Note B
Holder desire to enter into this Agreement to memorialize the terms under which
they, and their successors and assigns, shall hold Note A and Note B,
respectively;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereto mutually agree as follows:
II. Definitions. References to a "Section" or the "recitals" are, unless
otherwise specified, to a Section or the recitals of this Agreement. All
capitalized terms not otherwise defined herein shall have the meanings set
forth in the Pooling Agreement. Whenever used in this Agreement, the
following terms shall have the respective meanings set forth below unless
the context clearly requires otherwise.
"Affiliate" shall mean with respect to any specified Person,
(a) any other Person controlling or controlled by or under common control with
such specified Person (each a "Common Control Party"), (b) any other Person
owning, directly or indirectly, ten percent (10%) or more of the beneficial
interests in such Person or (c) any other Person in which such Person or a
Common Control Party owns, directly or indirectly, ten percent (10%) or more of
the beneficial interests. 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, relation to individuals or
otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agreement" shall mean this Agreement Among Note Holders, the
exhibits and schedule hereto and all amendments hereof and supplements hereto.
"Combined Mortgage Loan Schedule" shall have the meaning
assigned to such term in the recitals.
"Defaulted Mortgage Loan Purchase Price" shall mean (i) at any
time that Note A is not in a Securitization, the sum of (a) the Note A Principal
Balance, (b) accrued and unpaid interest thereon at the Note A Interest Rate, up
to (but excluding) the date of purchase, provided payment is made in good funds
by 11:00 a.m. New York local time, (c) any unreimbursed property protection
advances allocable to Note A pursuant to the servicing agreement then in effect
and interest thereon at the applicable advance rate and (d) any accrued and
unpaid interest on advances due to the Note A Holder, plus the amount of any
unreimbursed interest on any advances of principal and/or interest by the
servicer under the servicing agreement then in effect, and (ii) at any time that
Note A is in a Securitization, the Purchase Price (as defined in the Pooling
Agreement). In any event, in determining the Defaulted Mortgage Loan Purchase
Price, amounts payable by the Mortgage Loan Borrower as a Prepayment Premium and
the value of such Prepayment Premium shall not be included unless the Note B
Holder or an Affiliate of the Note B Holder is the Mortgage Loan Borrower upon
the occurrence of any event which requires a Repurchase Option Notice pursuant
to Section 8 of this Agreement.
"Depositor" shall have the meaning assigned such term in the
recitals.
"Event of Default" shall mean an "Event of Default" as defined
in each Mortgage.
"Fiscal Agent" shall have the meaning assigned such term in
the recitals.
"Loan Principal Balance" shall mean, at any date of
determination, the sum of the related Promissory Note A Principal Balance and
Promissory Note B Principal Balance.
2
"Master Servicer" shall have the meaning assigned such term in
the recitals.
"Monetary Event of Default," with respect to the Mortgage
Loan, shall mean an Event of Default (as defined in the Mortgage) caused by the
failure of any of the Mortgage Loan Borrowers to make any payment of principal
or interest under the Notes when due.
"Mortgage" shall have the meaning assigned such term in the
recitals.
"Mortgage Interest Rate" shall mean the Mortgage Interest Rate
for the Mortgage Loan as set forth in the Combined Mortgage Loan Schedule.
"Mortgage Loan" shall have the meaning assigned such term in
the recitals.
"Mortgage Loan Borrower" shall mean the borrower or borrowers
under the Mortgage Loan.
"Mortgage Loan Borrower Related Parties" shall have the
meaning assigned such term in Section 15.
"Mortgage Loan Documents" shall mean Note A, Note B, the
Mortgages and all other documents evidencing, securing or otherwise relating to
the Mortgage Loan.
"Mortgage Loan Principal Balance" shall mean, at any date of
determination, the sum of the Note A Principal Balance and the Note B Principal
Balance.
"Mortgage Loan Schedule" shall mean each Individual Loan
Schedule and the Combined Loan Schedule, as set forth in Exhibit A, which
schedules set forth certain information regarding the Mortgage Loan, each
individual loan and the principal terms for the purchase by the Note B Holder of
Note B.
"Mortgaged Property" shall have the meaning assigned such term
in the recitals.
"Note A" shall have the meaning assigned such term in the
recitals.
"Note A Collection Account" shall mean the account in which
amounts are segregated (by ledger entries or otherwise) and held for the benefit
of the Note A Holder pursuant to Section 3.04(a) of the Pooling Agreement.
"Note A Default Interest Rate" shall mean the Note A Default
Interest Rate set forth in the Combined Mortgage Loan Schedule.
"Note A Holder" shall mean the Initial Note A Holder or any
subsequent holder of the Note A.
"Note A Interest Rate" shall mean the Note A Interest Rate set
forth in the Combined Mortgage Loan Schedule.
"Note A Percentage Interest" shall mean, as of any date, the
ratio of the Note A Principal Balance to the Mortgage Loan Principal Balance.
"Note A Prepayment Premium" shall be equal to the prepayment
premium set forth in Note A.
3
"Note A Principal Balance" shall mean, at any time of
determination, the initial Note A Principal Balance as set forth in the Combined
Mortgage Loan Schedule, less any payments of principal thereon.
"Note B" shall have the meaning assigned such term in the
recitals.
"Note B Collection Account" shall mean the account described
as the "RREEF B-Note Account" under the Pooling Agreement, in which amounts are
segregated (by ledger entries or otherwise) and held for the benefit of the Note
B Holder pursuant to Section 3.04(e) of the Pooling Agreement.
"Note B Default Interest Rate" shall mean the Note B Default
Interest Rate set forth in the Combined Mortgage Loan Schedule.
"Note B Holder" shall mean the Initial Note B Holder or any
subsequent holder of Note B.
"Note B Holder Repurchase Notice" shall have the meaning
assigned to such term in Section 8.
"Note B Interest Rate" shall mean the Note B Interest Rate set
forth in the Combined Mortgage Loan Schedule.
"Note B Percentage Interest" shall mean, as of any date, the
ratio of the Note B Principal Balance to the related Mortgage Loan Principal
Balance.
"Note B Prepayment Premium" shall be equal to the prepayment
premium set forth in Note B.
"Note B Principal Balance" shall mean at any time of
determination, the initial Note B Principal Balance, as set forth in the
Combined Mortgage Loan Schedule, less any payments of principal thereon or
reductions in such amount pursuant to Section 5.
"Noteholder" shall mean the Note A Holder or the Note B
Holder, as the context may require.
"Notes" shall mean, collectively, Note A and Note B.
"Payment Date" shall mean the "Due Date" set forth in Note A
and Note B.
"Percentage Interest" shall mean, with respect to the Note A
Holder, the Note A Percentage Interest and, with respect to the Note B Holder,
the Note B Percentage Interest.
"Pooling Agreement" shall have the meaning assigned such term
in the recitals.
"Prepayment Premium" shall mean any prepayment premium, yield
maintenance premium or similar fee required to be paid in connection with a
prepayment of the Mortgage Loan.
"Promissory Note A" shall have the meaning assigned to such
term in the recitals.
"Promissory Note B" shall have the meaning assigned to such
term in the recitals.
4
"Promissory Note A Principal Balance" shall mean, at any time
of determination the initial Promissory Note A Principal Balance as set forth in
the related Individual Loan Schedule, less any payments of principal thereon.
"Promissory Note B Principal Balance" shall mean, at any time
of determination the initial Promissory Note B Principal Balance as set forth in
the related Individual Loan Schedule, less any payments of principal thereon.
"Purchase Date" shall mean April 23, 2002.
"Purchase Date Mortgage Loan Principal Balance" shall mean the
aggregate principal balance of the Mortgage Loan on the Purchase Date.
"Purchase Price" shall mean the amount that the Note B Holder
paid to the Note A Holder to acquire Note B, as set forth on the Combined
Mortgage Loan Schedule.
"Qualified Institutional Lender" means (a) an insurance
company, bank, savings and loan association, trust company, commercial credit
corporation, pension plan, pension fund or pension fund advisory firm, mutual
fund or other investment company, governmental entity or plan, "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended (other than a broker/dealer), or an institution substantially
similar to any of the foregoing, in each case under this clause (a) having at
least $100,000,000 in capital/statutory surplus or shareholders' equity and at
least $250,000,000 in total assets, and being experienced in making commercial
real estate loans; or (b) any entity controlled by any one or more institutions
meeting the criteria in clause (a).
"Rating Agencies" shall mean Standard & Poor's Ratings
Services, a Division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P"), ▇▇▇▇▇'▇
Investors Service, Inc. and Fitch, Inc. or, if any of such entities shall for
any reason no longer perform the functions of a securities rating agency, any
other nationally recognized statistical rating agency designated by the Note A
Holder; provided, however, that at any time during which Note A is an asset of a
Securitization, "Rating Agencies" or "Rating Agency" shall mean the rating
agencies that from time to time rate the securities issued in connection with
such Securitization.
"Repurchase Date" shall have the meaning assigned to such term
in Section 8.
"Repurchase Option Notice" shall have the meaning assigned to
such term in Section 8.
"Securitization" shall mean the sale by the Note A Holder of
Note A to the Depositor and, pursuant to the Pooling Agreement, the inclusion of
Note A as part of a securitization of one or more mortgage loans.
"Securitization Date" shall mean the effective date on which a
Securitization is consummated.
"Servicer" shall mean any of the Master Servicer and the
Special Servicer, as the context requires, and shall include any primary
servicer or Special Servicer appointed by the Note B Holder.
"Special Servicer" shall have the meaning assigned such term
in the recitals.
"Transfer" shall have the meaning assigned such term in
Section 14.
5
"Trustee" shall have the meaning assigned such term in the
recitals.
"Trust Fund" shall have the meaning assigned such term in the
recitals.
III. Acquisition of Note B. On the Purchase Date, the Note B Holder acquired
Note B for the Purchase Price set forth in the Combined Mortgage Loan
Schedule, by wire transfer to the Note A Holder. Administration of the
Mortgage Loan shall be governed by this Agreement and the Pooling
Agreement, provided, however, that if at any time prior to the payment in
full of the Mortgage Loan, the Mortgage Loan is no longer subject to the
provisions of the Pooling Agreement then, until a replacement servicing
agreement has been entered into, the Mortgage Loan shall continue to be
serviced by the Master Servicer and the Special Servicer pursuant to the
provisions of the Pooling Agreement as if such agreement was still in full
force and effect with respect to the Mortgage Loan. The Note B Holder
acknowledges that the Note A Holder intends to include Note A in a
securitization.
Both of the Note A Holder and the Note B Holder agree that
only the Note B Holder will have the right to consent to any discretionary items
set forth in Sections 10 and Sections 11 of Note A and Note B. The Note B Holder
hereby agrees that it will exercise such rights of discretionary consent solely
on its own behalf and not on behalf of the Note A Holder. However, during the
continuance of a RREEF Change of Control Event (as such term is defined in the
Pooling Agreement), the Note A Holder will have the right to exercise such
rights of discretionary consent, provided that such action will not result in an
Adverse REMIC Event.
IV. Subordination of Note B; Payments Prior to an Event of Default. Note B and
the right of the Note B Holder to receive payments of interest and
principal with respect to Note B shall at all times be junior, subject and
subordinate to Note A and the right of the Note A Holder to receive
payments of interest and principal with respect to Note A to the extent
provided herein. So long as: (i) no Monetary Event of Default shall have
occurred and be continuing (or if a Monetary Event of Default had occurred
but has been cured and is no longer continuing), (ii) no other material
Event of Default, as determined by the Servicer pursuant to the Servicing
Standard, shall have occurred and be, continuing (or if a material Event of
Default (other than a Monetary Event of Default), as determined by the
Servicer pursuant to the Servicing Standard, had occurred and has been
cured and is no longer continuing) or (iii) the Mortgage Loan is not a
Specially Serviced Loan (or if the Mortgage Loan had been a Specially
Serviced Loan but is no longer a Specially Serviced Loan) all amounts
tendered by the Mortgage Loan Borrower or otherwise available for payment
on the Mortgage Loan (including amounts received by any Servicer pursuant
to the Pooling Agreement), whether received in the form of Monthly
Payments, the Balloon Payment, proceeds under title, hazard or other
insurance policies or awards or settlements in respect of condemnation
proceedings or similar exercise of the power of eminent domain (other than
proceeds, awards or settlements to be applied to the restoration or repair
of the Mortgaged Properties or released to the Mortgage Loan Borrower in
accordance with the Servicing Standard or the Mortgage Loan Documents)
shall be applied in the following order of priority (and payments shall be
made at such times as are set forth in the Pooling Agreement); provided,
that with respect to any payments received on the Mortgage Loan in
reduction of principal that occur during any time after the Note B Holder
has exercised its right under Section 3.28(d) of the Pooling Agreement
6
to cure a sixth consecutive default in a Monthly Payment due on the
Mortgage Loan (but occur prior to all Monthly Payments due on the Mortgage
Loan having otherwise been made current by the Borrower), such amounts
shall be distributed in accordance with the priority set forth in Section 4
hereto; provided, further, that any amounts due to any Servicer, the
Trustee, the Fiscal Agent, any other party to the Pooling Agreement or the
Trust Fund with respect to the Mortgage Loan (including any servicing
compensation, servicing expenses, Advances, interest on Servicing Advances,
Liquidation Expenses or any Additional Trust Fund Expenses incurred with
respect to the Mortgage Loan) shall be paid in the manner set forth in the
Pooling Agreement from amounts allocated as provided below, including,
without limitation, any amounts allocated to the Note A Holder and the Note
B Holder prior to any such amounts being paid to either the Note A Holder
or the Note B Holder:
A. first, so long as Note A is part of the Securitization, to pay to the
Note A Collection Account such amounts as are needed to reimburse the
Trustee, the Fiscal Agent, any Servicer or any other party to the
Pooling Agreement for any outstanding Servicing Advances made thereby
and interest thereon, or to pay any unpaid Liquidation Expenses or
other servicing expenses incurred, with respect to the Mortgage Loan;
B. second, to pay to the Note A Holder (or, for so long as Note A is part
of the Securitization, to pay to the Note A Collection Account) such
amounts as are necessary to reimburse the Note A Holder (which, for so
long as Note A is part of the Securitization, will be the Trust) for
any Servicing Advances in respect of the Mortgage Loan that were
reimbursed, including any interest thereon, or any Liquidation
Expenses, other servicing expenses or any Additional Trust Fund
Expenses with respect to the Mortgage Loan that were paid, out of any
amounts allocable to Note A pursuant to any of clauses (c) through
(e), (g) and (h) of this Section 3;
C. third, pro rata, based on the respective amounts of interest payable
under this clause (c), (i) to pay to the Note A Holder (or, for so
long as Note A is part of the Securitization, to the Note A Collection
Account) an amount equal to the accrued and unpaid interest on the
Note A Principal Balance at the Note A Interest Rate and (ii) to pay
to the Note B Holder (or, for so long as Note A is part of the
Securitization, to pay to the Note B Collection Account) an amount
equal to the accrued and unpaid interest on the Note B Principal
Balance at the Note B Interest Rate;
D. fourth, pro rata, based on the respective amounts of principal payable
under this clause (d), (i) to pay to the Note A Holder (or, for so
long as Note A is part of the Securitization, to the Note A Collection
Account) an amount equal to the scheduled principal payments, if any,
due with respect to Note A and (ii) to pay to the Note B Holder (or,
for so long as Note A is part of the Securitization, to pay to the
Note B Collection Account) an amount equal to the scheduled principal
payments, if any, due with respect to Note B;
7
E. fifth, any unscheduled principal payment on the Mortgage Loan shall be
paid to the Note A Holder (or, for so long as Note A is part of the
Securitization, to the Note A Collection Account) and the Note B
Holder (or, for so long as Note A is part of the Securitization, to
pay to the Note B Collection Account) on a pro rata basis in
accordance with their respective Percentage Interests;
F. sixth, to pay to the Note B Holder (or, for so long as Note A is part
of the Securitization, to pay to the Note B Collection Account) such
amounts as are necessary to reimburse the Note B Holder for any
Servicing Advances in respect of the Mortgage Loan that were
reimbursed, including any interest thereon or any Liquidation
Expenses, other servicing expenses or any Additional Trust Fund
Expenses with respect to the Mortgage Loan that were paid, out of any
amounts allocable to Note B pursuant to any of clauses (c) through
(e), (g) and (h) of this Section 3, or for amounts that were otherwise
paid by the Note B Holder in connection with its right to cure an
event of default under the Mortgage Loan pursuant to Section 3.28(d)
of the Pooling Agreement;
G. seventh, pro rata, based on their respective portions of the
Prepayment Premium, to: (i) the Note A Holder (or, for so long as Note
A is part of the Securitization, to the Note A Collection Account) an
amount equal to the Note A Prepayment Premium and (ii) the Note B
Holder (or, for so long as Note A is part of the Securitization, to
pay to the Note B Collection Account) an amount equal to the Note B
Prepayment Premium; and
H. eighth, if any excess amount is paid by the Mortgage Loan Borrower,
and not otherwise applied in accordance with the foregoing clauses (a)
through (g) of this Section 3, such remaining amount shall be paid to
the Note A Holder (or, for so long as Note A is part of the
Securitization, to the Note A Collection Account) and to the Note B
Holder (or, for so long as Note A is part of the Securitization, to
pay to the Note B Collection Account) on a pro rata basis in
accordance with their respective Percentage Interests.
For purposes of this Section 3, Note A will be deemed part of the Securitization
even if the Mortgaged Properties have become REO Property, so long as such REO
Property remains part of the Securitization.
V. Payments Following an Event of Default. So long as: (i) no Monetary Event
of Default shall have occurred and be continuing (or if a Monetary Event of
Default had occurred but has been cured and is no longer continuing), (ii)
no other material Event of Default, as determined by the Servicer pursuant
to the Servicing Standard, shall have occurred and be, continuing (or if a
material Event of Default (other than a Monetary Event of Default), as
determined by the Servicer pursuant to the Servicing Standard, had occurred
and has been cured and is no longer continuing) or (iii) the Mortgage Loan
is not a Specially Serviced Loan (or if the Mortgage Loan had been a
Specially Serviced Loan but is no longer a Specially Serviced Loan), the
Master Servicer shall make payments of interest and principal on Note A and
Note B in accordance with Section 3 hereof, provided that, if: (i) a
Monetary Event of Default shall have occurred and be continuing,
8
(ii) a material Event of Default, as determined by the Servicer pursuant to
the Servicing Standard, shall have occurred and be, continuing or (iii) the
Mortgage Loan is, and then-currently remains, a Specially Serviced Loan,
all amounts tendered by the Mortgage Loan Borrower or otherwise available
for payment of the Mortgage Loan (including amounts received by any
Servicer), whether received in the form of Monthly Payments, the Balloon
Payment, Liquidation Proceeds, REO Revenues, proceeds under title, hazard
or other insurance policies or awards or settlements in respect of
condemnation proceedings or similar domain (other than proceeds, awards or
settlements to be applied to the restoration or repair of the Mortgaged
Properties or released to the Mortgage Loan Borrower in accordance with the
Servicing Standard or the Mortgage Loan Documents) shall be applied in the
following order of priority (and payments shall be made at such times as
are set forth in the Pooling Agreement); provided, that with respect to any
payments received on the Mortgage Loan in reduction of principal that occur
during any time after the Note B Holder has exercised its right under
Section 3.28(d) of the Pooling Agreement to cure a sixth consecutive
default in a Monthly Payment due on the Mortgage Loan (but occur prior to
all Monthly Payments due on the Mortgage Loan having otherwise been made
current by the Borrower), such amounts shall be distributed in accordance
with the priority set forth in this Section 4; provided, further, that any
amounts due to any Servicer, the Trustee, the Fiscal Agent, any other party
to the Pooling Agreement or the Trust Fund with respect to the Mortgage
Loan (including any servicing compensation, servicing expenses, Advances,
interest on Servicing Advances, Liquidation Expenses or any Additional
Trust Fund Expenses incurred with respect to the Mortgage Loan) shall be
paid in the manner set forth in the Pooling Agreement from amounts
allocated as provided below, including, without limitation, any amounts
allocated to the Note A Holder and the Note B Holder prior to any amounts
being paid to either the Note A Holder or the Note B Holder:
A. first, so long as Note A is part of the Securitization, to pay to the
Note A Collection Account such amounts as are needed to reimburse the
Trustee, the Fiscal Agent, any Servicer or any other party to the
Pooling Agreement for any outstanding Servicing Advances made thereby,
or to pay any unpaid Liquidation Expenses or other servicing expenses
incurred, with respect to the Mortgage Loan;
B. second, to pay to the Note A Holder (or, for so long as Note A is part
of the Securitization, to pay to the Note A Collection Account) such
amounts as are necessary to reimburse the Note A Holder (which, for so
long as Note A is part of the Securitization, will be the Trust) for
any Servicing Advances in respect of the Mortgage Loan that were
reimbursed, including any interest thereon, or any Liquidation
Expenses, other servicing expenses or any Additional Trust Fund
Expenses with respect to the Mortgage Loan that were paid, out of any
amounts allocable to Note A pursuant to any of clauses (c) through (k)
of this Section 4;
C. third, to pay to the Note A Holder (or, for so long as Note A is part
of the Securitization, to the Note A Collection Account) an amount
equal to the accrued and unpaid interest (other than default interest)
on the Note A Principal Balance at the Note A Interest Rate;
9
D. fourth, to pay to the Note A Holder (or, for so long as Note A is part
of the Securitization, to the Note A Collection Account) an amount
equal to the Note A Principal Balance, until such amount has been paid
in full;
E. fifth, to pay to the Note B Holder (or, for so long as Note A is part
of the Securitization, to pay to the Note B Collection Account) such
amounts as are necessary to reimburse the Note B Holder for any
Servicing Advances in respect of the Mortgage Loan that were
reimbursed, including any interest thereon, or any Liquidation
Expenses, other servicing expenses or any Additional Trust Fund
Expenses with respect to the Mortgage Loan that were paid, out of any
amounts allocable to Note B pursuant to any of clauses (f) through (k)
of this Section 4 or for amounts that were otherwise paid by the Note
B Holder in connection with its right to cure an event of default
under the Mortgage Loan pursuant to Section 3.28(d) of the Pooling
Agreement;
F. sixth, to pay to the Note B Holder (or, for so long as Note A is part
of the Securitization, to the Note B Collection Account) an amount
equal to the accrued and unpaid interest (other than default interest)
on the Note B Principal Balance;
G. seventh, to pay to the Note B Holder (or, for so long as Note A is
part of the Securitization, to the Note B Collection Account) an
amount equal to the Note B Principal Balance, until such principal
amount has been paid in full;
H. eighth, to pay to the Note A Holder (or, for so long as Note A is part
of the Securitization, to the Note A Collection Account), the Note A
Prepayment Premium;
I. ninth, to pay to the Note B Holder (or, for so long as Note A is part
of the Securitization, to the Note B Collection Account), the Note B
Prepayment Premium;
J. tenth, any default interest in excess of the interest paid in
accordance with clauses (d) and (f) of this Section 4 on (i) first,
Note A at the Note A Default Interest Rate (to the Note A Holder (or,
for so long as Note A is part of the Securitization, to the Note A
Collection Account)) and (ii) then, Note B at the Note B Default
Interest Rate (to the Note B Holder (or, for so long as Note A is part
of the Securitization, to the Note B Collection Account)); and
K. eleventh, if any excess amount is paid by the Mortgage Loan Borrower,
and not otherwise applied in accordance with the foregoing clauses (a)
through (j) of this Section 4, such remaining amount shall be paid to
the Note A Holder (or, for so long as Note A is part of the
Securitization, to the Note A Collection Account) and to the Note B
Holder (or, for so long as Note A is part of the Securitization, to
the Note B Collection Account) on a pro rata basis in accordance with
their respective Percentage Interests.
10
For purposes of this Section 4, Note A will be deemed part of the Securitization
even if the Mortgaged Properties have become REO Property, so long as such REO
Property remains part of the Securitization.
VI. Workout. Notwithstanding anything to the contrary contained herein, but
subject to the terms and conditions of the Pooling Agreement, if any
Servicer, in connection with a workout or proposed workout of the Mortgage
Loan, modifies the terms thereof such that (i) the Mortgage Loan Principal
Balance is decreased, (ii) the Mortgage Interest Rate or scheduled
amortization payments on Note A or Note B are reduced, (iii) payments of
interest or principal on Note A or Note B are waived, reduced or deferred
or (iv) any other adjustment is made to any of the payment terms of the
Mortgage Loan, all payments to the Note A Holder pursuant to Sections 3 and
4, as applicable, shall be made as though such workout did not occur, with
the payment terms of Note A remaining the same as they are on the Agreement
Date, and the Note B Holder shall bear the full economic effect of all
waivers, reductions or deferrals of amounts due under the Mortgage Loan
attributable to such workout (up to the then Note B Principal Balance
together with accrued and unpaid interest thereon at the Note B Interest
Rate and any other amounts due and unpaid to the Note B Holder).
VII. Payment Procedure. For so long as Note A is part of the Securitization, the
Note A Holder and Note B Holder each hereby directs the Master Servicer, in
accordance with the priorities set forth in Section 3 or 4, as applicable,
and subject to the terms of the Pooling Agreement, to deposit or credit (a)
all payments received with respect to and allocable to Note A to the Note A
Collection Account established pursuant to the Pooling Agreement, and (b)
all payments received with respect to and allocable to Note B to the Note B
Collection Account established pursuant to the Pooling Agreement.
If a court of competent jurisdiction orders, at any time that
any amount received or collected in respect of Note A or Note B must, pursuant
to any insolvency bankruptcy, fraudulent conveyance, preference or similar law,
be returned to the Mortgage Loan Borrower or paid to the Note A Holder, the Note
B Holder or any Servicer or paid to any other Person, then, notwithstanding any
other provision of this Agreement, no Servicer shall be required to distribute
any portion thereof to the Note B Holder or the Note A Holder, as applicable,
and the Note B Holder or the Note A Holder, as applicable and to the extent
necessary to comply with such court order, will promptly on demand repay to such
Servicer the portion thereof which shall have been theretofore distributed to
the Note B Holder or the Note A Holder, as applicable, together with interest
thereon at such rate, if any, as such Servicer shall have been required to pay
to the Mortgage Loan Borrower, the Note A Holder, the Note B Holder, the Master
Servicer, the Special Servicer or such other Person with respect thereto. If,
for any reason, the Master Servicer makes any payment to the Note A Holder or
the Note B Holder before the Master Servicer has received the corresponding
payment (it being understood that the Master Servicer is under no obligation to
do so), and the Master Servicer does not receive the corresponding payment
within five (5) Business Days of its payment to the Note A Holder or the Note B
Holder (as the case may be), such Holder will, at the Master Servicer's request,
promptly return that payment to the Master Servicer (together with interest on
that payment at the lesser of the "federal funds" rate and the Mortgage Interest
Rate for each day from the making of that payment to such Holder, until it is
returned to the Master Servicer).
11
The Note A Holder and the Note B Holder each agree that if at
any time it shall receive from any sources whatsoever any payment on account of
the Mortgage Loan in excess of its distributable share thereof, it will promptly
remit such excess to the Master Servicer.
The applicable Servicer shall have the right to offset any
amounts due hereunder from the Note A Holder or the Note B Holder with respect
to the Mortgage Loan against any future payments due to the Note A Holder or the
Note B Holder, as applicable, under the Mortgage Loan, provided, that the Note A
Holder's and the Note B Holder's obligations under this Section 6 are separate
and distinct obligations from one another and in no event shall any Servicer
enforce the obligations of the Note A Holder against the Note B Holder or the
obligations of the Note B Holder against the Note A Holder.
The Note A Holder's and the Note B Holder's obligations under
this Section 6 constitute absolute, unconditional and continuing obligations and
each Servicer shall be deemed a third party beneficiary of these provisions.
VIII. Limitation on Liability. The Note A Holder shall have no liability to the
Note B Holder with respect to Note B except with respect to losses
actually suffered due to the gross negligence, willful misconduct or
breach of this Agreement on the part of the Note A Holder. The Note B
Holder shall have no liability to the Note A Holder with respect to Note A
except with respect to losses actually suffered due to the gross
negligence, willful misconduct or breach of this Agreement on the part of
the Note B Holder.
IX. Purchase of Note A by Note B Holder. In the event that (a) any payment of
principal, interest or other amounts due to the lender on the Mortgage
Loan becomes ninety (90) or more days delinquent, thereby causing an event
of default under such Mortgage Loan; or (b) the Mortgage Loan becomes a
Specially Serviced Loan, then upon notice from the Note A Holder (a
"Repurchase Option Notice") of such occurrence (which notice the Note A
Holder shall promptly direct the Master Servicer to give to the Note B
Holder), the Note B Holder shall have the exclusive right but not the
obligation, by written notice to the Note A Holder (a "Note B Holder
Repurchase Notice"), given within 180 days of delivery to the Note B
Holder of the Repurchase Option Notice, to purchase Note A at the
Defaulted Mortgage Loan Purchase Price and, upon the delivery of written
notice thereof to the Note A Holder, the Note A Holder shall sell (and the
Note B Holder shall purchase) Note A (including, without limitation, any
participations therein) at the Defaulted Mortgage Loan Purchase Price, on
a date (the "Repurchase Date") after the date of the Note B Holder
Repurchase Notice, as shall be agreed upon by the Note A Holder and the
Note B Holder. The Defaulted Mortgage Loan Purchase Price shall be
calculated by the Master Servicer three (3) Business Days prior to the
Repurchase Date and shall, absent manifest error, be binding upon the Note
A Holder and the Note B Holder. Notwithstanding anything to the contrary
contained herein, (i) during any period during which Note A is subject to
purchase by the Note B Holder pursuant to this Section 8, the Mortgage
Loan shall continue to be serviced and specially serviced in accordance
with the terms of the Pooling Agreement and (ii) once the Note B Holder
Repurchase Notice has been delivered to the Note A Holder, no
modifications, waivers or amendments shall be made to the Mortgage Loan,
and no enforcement or other action shall be taken with respect to the
Mortgage Loan, without the consent of the Note B Holder.
12
If the Note B Holder does not elect to purchase Note A, then
the Note A Holder may liquidate such Note A (or the related Mortgaged
Properties) in the manner set forth in the Pooling Agreement, and the Note B
Holder may make an offer for such Note A (or the related Mortgaged Properties)
in the same manner as any other bidder as set forth therein.
X. Representations of the Note B Holder. The Note B Holder, as of the
Agreement Date, hereby represents and warrants to the Note A Holder that:
A. The execution, delivery and performance of this Agreement is within
its corporate powers, has been duly authorized by all necessary
corporate action, and does not contravene the Note B Holder's charter
or any law or contractual restriction binding upon the Note B Holder,
and that this Agreement is the legal, valid and binding obligation of
the Note B Holder enforceable against the Note B Holder in accordance
with its terms.
B. The Note B Holder is a corporation duly organized, validly existing
and in good standing under the laws of the State of New Jersey, and
is in compliance with the laws of each state to the extent necessary
to ensure the enforceability of this Agreement and to perform its
obligations under this Agreement.
C. The execution and delivery of this Agreement by the Note B Holder,
and the performance of, and compliance with, the terms of this
Agreement by the Note B Holder, will not violate the Note B Holder's
organizational documents or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any
of its assets, in each case which materially and adversely affect the
ability of the Note B Holder to carry out the transactions
contemplated by this Agreement.
D. The Note B Holder has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
E. The Note B Holder has not dealt with any broker, investment banker,
agent or other person that may be entitled to any commission or
compensation in connection with the sale of Note B or the
consummation of any of the other transactions contemplated hereby.
F. The Note B Holder is a Qualified Institutional Lender.
XI. Representations of the Note A Holder. The Note A Holder, as of the
Agreement Date, hereby represents and warrants to the Note B Holder that:
A. The execution, delivery and performance of this Agreement is within
its corporate powers, has been duly authorized by all necessary
corporate action, and does not contravene the Note A Holder's charter
or any law or contractual restriction binding upon the Note A Holder,
and that this Agreement is the legal, valid and
13
binding obligation of the Note A Holder enforceable against the Note
A Holder in accordance with its terms.
B. The Note A Holder is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and is in compliance with the laws of each state in which
any Mortgaged Property is located to the extent necessary to ensure
the enforceability of the Mortgage Loan and to perform its
obligations under this Agreement.
C. The execution and delivery of this Agreement by the Note A Holder,
and the performance of, and compliance with, the terms of this
Agreement by the Note A Holder, will not violate the Note A Holder's
organizational documents or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any
of its assets, in each case which materially and adversely affect the
ability of the Note A Holder to carry out the transactions
contemplated by this Agreement.
D. The Note A Holder has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
E. The Note A Holder has not dealt with any broker, investment banker,
agent or other person that may be entitled to any commission or
compensation in connection with the sale of Note B or the
consummation of any of the other transactions contemplated hereby.
XII. Independent Analysis of the Note B Holder. The Note B Holder acknowledges
that the Note B Holder has, independently and without reliance upon the
Note A Holder and based on such documents and information as the Note B
Holder has deemed appropriate, made the Note B Holder's own credit
analysis and decision to purchase Note B. The Note B Holder hereby
acknowledges that (except as provided herein) the Note A Holder has made
no representations or warranties with respect to the Mortgage Loan, and
that the Note A Holder shall have no responsibility for (i) the
collectability of the Mortgage Loan, (ii) the validity, enforceability or
legal effect of any of the Mortgage Loan Documents or the title insurance
policy or policies or any survey furnished or to be furnished to the Note
A Holder in connection with the origination of the Mortgage Loan, (iii)
the validity, sufficiency or effectiveness of the lien created or to be
created by the Mortgage Loan Documents, or (iv) the financial condition of
the Mortgage Loan Borrower. The Note B Holder assumes all risk of loss in
connection with Note B.
XIII. No Creation of a Partnership or Exclusive Purchase Right. Nothing
contained in this Agreement, and no action taken pursuant hereto shall be
deemed to constitute the Note A Holder with the Note B Holder a
partnership, association, joint venture or other entity. The Note A Holder
shall have no obligation whatsoever to offer to the Note B Holder the
opportunity to purchase notes or participation interests relating to any
future loans
14
originated by the Note A Holder or its Affiliates, and if the Note A
Holder chooses to offer to the Note B Holder the opportunity to purchase
notes or any participation interests in any future mortgage loans
originated by the Note A Holder or its Affiliates, such offer shall be at
such purchase price and interest rate as the Note A Holder chooses, in its
sole and absolute discretion. The Note B Holder shall have no obligation
whatsoever to purchase from the Note A Holder any notes or participation
interests in any future loans originated by the Note A Holder or its
Affiliates.
XIV. Not a Security. Note B shall not be deemed to be a security within the
meaning of the Securities Act of 1933 or the Securities Exchange Act of
1934.
XV. Sale of Note B. The Initial Note B Holder (and any subsequent Note B
Holder) agrees that, prior to the Securitization Date, it will not sell,
assign, transfer, pledge, syndicate, sell, hypothecate, contribute,
encumber, participate or otherwise dispose of more than a 49% interest in
Note B or any controlling interest in Note B (a "Transfer") without the
Note A Holder's prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed. From and after the
Securitization Date, any Transfer is permitted to be made only if the Note
B Holder has first delivered to the Note A Holder written confirmation
from each Rating Agency ("Rating Agency Confirmation") that such Transfer,
in and of itself, would not cause a downgrade, qualification or withdrawal
of the then-current ratings assigned to any Class of Certificates (and the
Note B Holder shall pay all out-of-pocket costs and expenses of the Note A
Holder, each Servicer (which costs and expenses of such Servicer shall not
exceed $5,000.00, excluding any costs or expenses of the Rating Agencies)
and the Rating Agencies in connection therewith); provided, however, that
such confirmation of the Rating Agencies is not required in connection
with a Transfer to an entity that provides to the Note A Holder
certification in writing that it is a Qualified Institutional Lender.
Notwithstanding the foregoing, the Note B Holder agrees that both prior to
and from and after the Securitization Date, each Transfer is subject to
the following restrictions: (i) all such Transfers shall be made upon at
least ten (10) days' prior written notice to the Note A Holder, (ii) in
the case of each Transfer of a participation interest in Note B, (A) the
Note B Holder's obligations under this Agreement shall remain unchanged,
(B) the Note B Holder shall remain solely responsible for the performance
of such obligations, and (C) the Note A Holder and any Persons acting on
its behalf shall continue to deal solely and directly with the Note B
Holder in connection with the Note B Holder's rights and obligations under
this Agreement and the Pooling Agreement, and all amounts payable
hereunder shall be determined as if the Note B Holder had not sold such
participation, (iii) the Note B Holder shall not Transfer all or any
portion of Note B to the Mortgage Loan Borrower or an Affiliate thereof,
and any such Transfer shall be void ab initio, (iv) if such Transfer is to
an Affiliate of the Note B Holder, the Note B Holder has delivered a legal
opinion to the Note A Holder that the Transfer, in and of itself, would
not change the legal conclusions reached in the "true sale" opinion of
Cadwalader ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ dated the date hereof in connection with the
sale of Note A to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA, (v) a transferee (but not a
participant) shall (A) execute an assignment and assumption agreement
whereby such transferee assumes all or a ratable portion, as the case may
be, of the obligations of the Note B Holder hereunder with respect to Note
B, from and after the date of such assignment and (B) agree in writing to
be bound by the Pooling
15
Agreement unless the Pooling Agreement is not then in effect with respect
to the Mortgage Loan, in which event the parties will enter into or agree
to be bound by any replacement servicing agreement therefor. In the event
the Note B Holder (x) Transfers 100% of Note B to a transferee, (y)
satisfies the conditions set forth in (i) - (v) above and (z) provides the
Note A Holder with Rating Agency Confirmation or a written certification
that the transferee is a Qualified Institutional Lender, then the Note A
Holder shall release the Note B Holder from any obligation related to
events occurring on and after the date of such Transfer.
XVI. Other Business Activities of the Holders; Sale of Note A. Each of the
Holders acknowledges that the other Holder may make loans or otherwise
extend credit to, and generally engage in any kind of business with any
Affiliate of the Mortgage Loan Borrower ("Mortgage Loan Borrower Related
Parties"), and receive payments on such other loans or extensions of
credit to Mortgage Loan Borrower Related Parties and otherwise act with
respect thereto freely and without accountability in the same manner as if
this Agreement and the transactions contemplated hereby were not in
effect. The Initial Note A Holder agrees that it will cause ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bank USA, which in turn will cause the Trust Fund, to assume all of the
obligations of the Note A Holder under this Agreement. In connection with
a sale of Note A from the Trust Fund, the Note A Holder agrees to cause
any such transferee of Note A to execute an assignment and assumption
agreement whereby such transferee assumes all of the obligations of the
Note A Holder hereunder with respect to Note A, from and after the date of
such assignment. At any time the Mortgage Loan is not serviced by the
terms of the Pooling Agreement, the Note A Holder and the Note B Holder
agree that they will enter into a servicing agreement therefor that will
have substantially the same terms as the Pooling Agreement.
XVII. Exercise of Remedies. Notwithstanding anything to the contrary contained
herein (including the provisions of Section 5), the Pooling Agreement
shall provide that, during any period in which the Mortgage Loan Borrower
or an Affiliate thereof does not hold Note B or any interest therein, each
Servicer shall service and administer the Mortgage Loan on behalf of the
Note A Holder and the Note B Holder in accordance with the Servicing
Standard taking into account the interests of both the Note A Holder and
the Note B Holder. For purposes hereof, if a bona fide third party pledgee
of the Note B Holder who is not the Mortgage Loan Borrower or an Affiliate
thereof acquires full ownership of Note B, through foreclosure or
otherwise, such pledgee shall not be considered an Affiliate of the
Mortgage Loan Borrower. Except when acting through a Servicer acting in
accordance with the Servicing Standard or otherwise in accordance with the
terms of the Pooling Agreement, the Note B Holder shall have no voting,
consent or other rights whatsoever with respect to the Note A Holder's
administration of, or exercise of its rights and remedies with respect to,
the Mortgage Loan.
XVIII.Governing Law; Waiver of Jury Trial. THIS AGREEMENT AND THE RESPECTIVE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH
STATE. EACH OF THE PARTIES
16
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF RELATING TO THIS AGREEMENT.
XIX. Modifications. This Agreement shall not be modified, cancelled or
terminated except by an instrument in writing signed by the parties
hereto. The party seeking modification of this Agreement shall be solely
responsible for any and all expenses that may arise in order to modify
this Agreement. Additionally, from and after the Securitization Date, the
Note A Holder and the Note B Holder shall not amend or modify this
Agreement without first receiving written confirmation from each Rating
Agency that such amendment or modification, in and of itself, would not
cause a downgrade, qualification or withdrawal of the then-current ratings
assigned to any Class of Certificates.
XX. Successors and Assigns; Third Party Beneficiaries. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns. Except as provided in ▇▇▇▇▇▇▇ ▇, ▇▇▇▇
of the provisions of this Agreement shall be for the benefit of or
enforceable by any Person not a party hereto.
XXI. Counterparts. This Agreement may be executed in any number of counterparts
and all of such counterparts shall together constitute one and the same
instrument.
XXII. Captions. The titles and headings of the paragraphs of this Agreement have
been inserted for convenience of reference only and are not intended to
summarize or otherwise describe the subject matter of the paragraphs and
shall not be given any consideration in the construction of this
Agreement.
XXIII. Notices. All notices required hereunder shall be given by (i) telephone
(confirmed in writing) or shall be in writing and personally delivered,
(ii) sent by facsimile transmission if the sender on the same day sends a
confirming copy of such notice by reputable overnight delivery service
(charges prepaid), (iii) reputable overnight delivery service (charges
prepaid) or (iv) certified United States mail, postage prepaid return
receipt requested, and addressed to the respective parties at their
addresses set forth on Exhibit B hereto, or at such other address as any
party shall hereafter inform the other party by written notice given as
aforesaid. All written notices so given shall be deemed effective upon
receipt.
XXIV. Custody of Loan Documents. The originals of all of the Mortgage Loan
Documents (other than Note B) will be held by the Note A Holder on behalf
of the Holders.
XXV. Liability of Noteholders. Each Noteholder hereunder shall be liable
hereunder only to the extent of cash derived from its Percentage Interest
in the Mortgage Loan either (i) prior to its disbursement and receipt by
such Noteholder or (ii) after its receipt by such Noteholder under the
circumstances and to the extent provided in Section 6 of this Agreement.
17
IN WITNESS WHEREOF, the Initial Note A Holder and the Initial
Note B Holder have caused this Agreement to be duly executed as of the day and
year first above written.
Initial Note A Holder
---------------------
PRUDENTIAL MORTGAGE CAPITAL
FUNDING, LLC
By:________________________________
Name:
Title:
Initial Note B Holder
---------------------
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By:_______________________________
Name:
Title:
18
EXHIBIT A-1
COMBINED MORTGAGE LOAN SCHEDULE
A. Description of Mortgage Loan
---------------------------------------------------------------------------------------------------------
Mortgage Loan Borrowers: Seven borrowers as set forth on the Individual
Loan Schedules
---------------------------------------------------------------------------------------------------------
Date of Mortgage Loan: April 23, 2002
---------------------------------------------------------------------------------------------------------
Initial Principal Amount of Mortgage Loan: $80,000,000
---------------------------------------------------------------------------------------------------------
Agreement Date Mortgage Loan Principal Balance: $80,000,000
---------------------------------------------------------------------------------------------------------
Locations of Mortgaged Properties: Florida, Maryland, Washington, Texas,
Massachusetts, Washington, D.C.
---------------------------------------------------------------------------------------------------------
Current Use of Mortgaged Properties: Multifamily, warehouse, industrial, office, retail
---------------------------------------------------------------------------------------------------------
Mortgage Interest Rate: 6.46% per annum (weighted average of Note A and
Note B)
---------------------------------------------------------------------------------------------------------
Maturity Date: Tranche A: May 1, 2012
Tranche B: May 1, 2009
---------------------------------------------------------------------------------------------------------
A-1-1
B. Description of Notes
------------------------------------------------------------------------------------------------------
Note B Purchase Date April 23, 2002
------------------------------------------------------------------------------------------------------
Note B Purchase Price (not including accrued
interest) $39,000,000
------------------------------------------------------------------------------------------------------
Initial Note A Principal Balance: $41,000,000
------------------------------------------------------------------------------------------------------
Initial Note B Principal Balance: $39,000,000
------------------------------------------------------------------------------------------------------
Initial Note A Percentage Interest: Approximately 51.25%
------------------------------------------------------------------------------------------------------
Initial Note B Percentage Interest: Approximately 48.75%
------------------------------------------------------------------------------------------------------
Note A Interest Rate: Tranche A: 6.37% per annum
Tranche B: 6.16% per annum
------------------------------------------------------------------------------------------------------
Note B Interest Rate: Tranche A: 6.78% per annum
Tranche B: 6.39% per annum
------------------------------------------------------------------------------------------------------
Note A Default Interest Rate: Lesser of (a) the maximum rate permitted by law
or (b) 5% plus the greater of (A) the Tranche A
Note Rate or the Tranche B Note Rate, as
applicable or (B) the prime rate (as set forth
in Note A).
------------------------------------------------------------------------------------------------------
Note B Default Interest Rate: Lesser of (a) the maximum rate permitted by law
or (b) 5% plus the greater of (A) the Tranche A
Note Rate or the Tranche B Note Rate, as
applicable or (B) the prime rate (as set forth
in Note B).
------------------------------------------------------------------------------------------------------
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
INDIVIDUAL LOAN SCHEDULE
A. Description of Lakeridge at the Moors Apartments Loan
------------------------------------------------------------------------------------------------------
Mortgage Loan Borrower: TMT Lakeridge at the Moors, Inc.
------------------------------------------------------------------------------------------------------
Date of Loan: April 23, 2002
------------------------------------------------------------------------------------------------------
Initial Principal Amount of Loan: $6,250,000
------------------------------------------------------------------------------------------------------
Agreement Date Loan Principal Balance: $6,250,000
------------------------------------------------------------------------------------------------------
Location of Mortgaged Property: Miami, Florida
------------------------------------------------------------------------------------------------------
Current Use of Mortgaged Property: Multifamily
------------------------------------------------------------------------------------------------------
Mortgage Interest Rate: 6.46% per annum (weighted average of Note A and
Note B)
------------------------------------------------------------------------------------------------------
Maturity Date: Tranche A: May 1, 2012
Tranche B: May 1, 2009
------------------------------------------------------------------------------------------------------
A-2-1
B. Description of Promissory Notes
------------------------------------------------------------------------------------------------------
Promissory Note B Purchase Date April 23, 2002
------------------------------------------------------------------------------------------------------
Promissory Note B Purchase Price (not including
accrued interest) $3,046,875
------------------------------------------------------------------------------------------------------
Promissory Note A Initial Principal Balance: $3,203,125
------------------------------------------------------------------------------------------------------
Promissory Note B Initial Principal Balance: $3,046,875
------------------------------------------------------------------------------------------------------
Promissory Note A Initial Percentage Interest: Approximately 51.25%
------------------------------------------------------------------------------------------------------
Promissory Note B Initial Percentage Interest: Approximately 48.75%
------------------------------------------------------------------------------------------------------
Promissory Note A Interest Rate: Tranche A: 6.37% per annum
Tranche B: 6.16% per annum
------------------------------------------------------------------------------------------------------
Promissory Note B Interest Rate: Tranche A: 6.78% per annum
Tranche B: 6.39% per annum
------------------------------------------------------------------------------------------------------
Promissory Note A Default Interest Rate: Lesser of (a) the maximum rate permitted by law
or (b) 5% plus the greater of (A) the Tranche A
Note Rate or the Tranche B Note Rate, as
applicable or (B) the prime rate (as set forth
in Note A).
------------------------------------------------------------------------------------------------------
Promissory Note B Default Interest Rate: Lesser of (a) the maximum rate permitted by law
or (b) 5% plus the greater of (A) the Tranche A
Note Rate or the Tranche B Note Rate, as
applicable or (B) the prime rate (as set forth
in Note B).
------------------------------------------------------------------------------------------------------
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
INDIVIDUAL LOAN SCHEDULE
A. Description of Pointe at Crystal Lake Apartments
------------------------------------------------------------------------------------------------------
Mortgage Loan Borrower: TMT Pointe at Crystal Lake, Inc.
------------------------------------------------------------------------------------------------------
Date of Loan: April 23, 2002
------------------------------------------------------------------------------------------------------
Initial Principal Amount of Loan: $9,800,000
------------------------------------------------------------------------------------------------------
Agreement Date Loan Principal Balance: $9,800,000
------------------------------------------------------------------------------------------------------
Location of Mortgaged Property: Pompano Beach, Florida
------------------------------------------------------------------------------------------------------
Current Use of Mortgaged Property: Multifamily
------------------------------------------------------------------------------------------------------
Mortgage Interest Rate: 6.46% per annum (weighted average of Note A and
Note B)
------------------------------------------------------------------------------------------------------
Maturity Date: Tranche A: May 1, 2012
Tranche B: May 1, 2009
------------------------------------------------------------------------------------------------------
A-3-1
B. Description of Promissory Notes
------------------------------------------------------------------------------------------------------
Promissory Note B Purchase Date April 23, 2002
------------------------------------------------------------------------------------------------------
Promissory Note B Purchase Price (not including
accrued interest) $4,777,500
------------------------------------------------------------------------------------------------------
Promissory Note A Initial Principal Balance: $5,022,500
------------------------------------------------------------------------------------------------------
Promissory Note B Initial Principal Balance: $4,777,500
------------------------------------------------------------------------------------------------------
Promissory Note A Initial Percentage Interest: Approximately 51.25%
------------------------------------------------------------------------------------------------------
Promissory Note B Initial Percentage Interest: Approximately 48.75%
------------------------------------------------------------------------------------------------------
Promissory Note A Interest Rate: Tranche A: 6.37% per annum
Tranche B: 6.16% per annum
------------------------------------------------------------------------------------------------------
Promissory Note B Interest Rate: Tranche A: 6.78% per annum
Tranche B: 6.39% per annum
------------------------------------------------------------------------------------------------------
Promissory Note A Default Interest Rate: Lesser of (a) the maximum rate permitted by law
or (b) 5% plus the greater of (A) the Tranche A
Note Rate or the Tranche B Note Rate, as
applicable or (B) the prime rate (as set forth
in Note A).
------------------------------------------------------------------------------------------------------
Promissory Note B Default Interest Rate: Lesser of (a) the maximum rate permitted by law
or (b) 5% plus the greater of (A) the Tranche A
Note Rate or the Tranche B Note Rate, as
applicable or (B) the prime rate (as set forth
in Note B).
------------------------------------------------------------------------------------------------------
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
INDIVIDUAL LOAN SCHEDULE
A. Description of Marley Run Apartments Loan
------------------------------------------------------------------------------------------------------
Mortgage Loan Borrower: TMT Marley Run II LLC
------------------------------------------------------------------------------------------------------
Date of Loan: April 23, 2002
------------------------------------------------------------------------------------------------------
Initial Principal Amount of Loan: $14,050,000
------------------------------------------------------------------------------------------------------
Agreement Date Loan Principal Balance: $14,050,000
------------------------------------------------------------------------------------------------------
Location of Mortgaged Property: Pasadena, Maryland
------------------------------------------------------------------------------------------------------
Current Use of Mortgaged Property: Multifamily
------------------------------------------------------------------------------------------------------
Mortgage Interest Rate: 6.46% per annum (weighted average of Note A and
Note B)
------------------------------------------------------------------------------------------------------
Maturity Date: Tranche A: May 1, 2012
Tranche B: May 1, 2009
------------------------------------------------------------------------------------------------------
A-4-1
B. Description of Promissory Notes
------------------------------------------------------------------------------------------------------
Promissory Note B Purchase Date April 23, 2002
------------------------------------------------------------------------------------------------------
Promissory Note B Purchase Price (not including
accrued interest) $6,849,375
------------------------------------------------------------------------------------------------------
Promissory Note A Initial Principal Balance: $7,200,625
------------------------------------------------------------------------------------------------------
Promissory Note B Initial Principal Balance: $6,849,375
------------------------------------------------------------------------------------------------------
Promissory Note A Initial Percentage Interest: Approximately 51.25%
------------------------------------------------------------------------------------------------------
Promissory Note B Initial Percentage Interest: Approximately 48.75%
------------------------------------------------------------------------------------------------------
Promissory Note A Interest Rate: Tranche A: 6.37% per annum
Tranche B: 6.16% per annum
------------------------------------------------------------------------------------------------------
Promissory Note B Interest Rate: Tranche A: 6.78% per annum
Tranche B: 6.39% per annum
------------------------------------------------------------------------------------------------------
Promissory Note A Default Interest Rate: Lesser of (a) the maximum rate permitted by law
or (b) 5% plus the greater of (A) the Tranche A
Note Rate or the Tranche B Note Rate, as
applicable or (B) the prime rate (as set forth
in Note A).
------------------------------------------------------------------------------------------------------
Promissory Note B Default Interest Rate: Lesser of (a) the maximum rate permitted by law
or (b) 5% plus the greater of (A) the Tranche A
Note Rate or the Tranche B Note Rate, as
applicable or (B) the prime rate (as set forth
in Note B).
------------------------------------------------------------------------------------------------------
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
INDIVIDUAL LOAN SCHEDULE
A. Description of Bear Creek Village Loan
------------------------------------------------------------------------------------------------------
Mortgage Loan Borrower: Bear Creek Village, L.L.C.
------------------------------------------------------------------------------------------------------
Date of Loan: April 23, 2002
------------------------------------------------------------------------------------------------------
Initial Principal Amount of Loan: $12,400,000
------------------------------------------------------------------------------------------------------
Agreement Date Loan Principal Balance: $12,400,000
------------------------------------------------------------------------------------------------------
Location of Mortgaged Property: Redmond, Washington
------------------------------------------------------------------------------------------------------
Current Use of Mortgaged Property: Retail
------------------------------------------------------------------------------------------------------
Mortgage Interest Rate: 6.46% per annum (weighted average of Note A and
Note B)
------------------------------------------------------------------------------------------------------
Maturity Date: Tranche A: May 1, 2012
Tranche B: May 1, 2009
------------------------------------------------------------------------------------------------------
A-5-1
B. Description of Promissory Notes
------------------------------------------------------------------------------------------------------
Promissory Note B Purchase Date April 23, 2002
------------------------------------------------------------------------------------------------------
Promissory Note B Purchase Price (not including
accrued interest) $6,045,000
------------------------------------------------------------------------------------------------------
Promissory Note A Initial Principal Balance: $6,355,000
------------------------------------------------------------------------------------------------------
Promissory Note B Initial Principal Balance: $6,045,000
------------------------------------------------------------------------------------------------------
Promissory Note A Initial Percentage Interest: Approximately 51.25%
------------------------------------------------------------------------------------------------------
Promissory Note B Initial Percentage Interest: Approximately 48.75%
------------------------------------------------------------------------------------------------------
Promissory Note A Interest Rate: Tranche A: 6.37% per annum
Tranche B: 6.16% per annum
------------------------------------------------------------------------------------------------------
Promissory Note B Interest Rate: Tranche A: 6.78% per annum
Tranche B: 6.39% per annum
------------------------------------------------------------------------------------------------------
Promissory Note A Default Interest Rate: Lesser of (a) the maximum rate permitted by law
or (b) 5% plus the greater of (A) the Tranche A
Note Rate or the Tranche B Note Rate, as
applicable or (B) the prime rate (as set forth
in Note A).
------------------------------------------------------------------------------------------------------
Promissory Note B Default Interest Rate: Lesser of (a) the maximum rate permitted by law
or (b) 5% plus the greater of (A) the Tranche A
Note Rate or the Tranche B Note Rate, as
applicable or (B) the prime rate e (as set
forth in Note B).
------------------------------------------------------------------------------------------------------
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
INDIVIDUAL LOAN SCHEDULE
A. Description of Dallas Warehouse Portfolio Loan
------------------------------------------------------------------------------------------------------
Mortgage Loan Borrowers: TCIT Dallas Industrial, Inc.
------------------------------------------------------------------------------------------------------
Date of Mortgage Loan: April 23, 2002
------------------------------------------------------------------------------------------------------
Initial Principal Amount of Loan: $10,600,000
------------------------------------------------------------------------------------------------------
Agreement Date Loan Principal Balance: $10,600,000
------------------------------------------------------------------------------------------------------
Location of Mortgaged Property: Dallas, Texas
------------------------------------------------------------------------------------------------------
Current Use of Mortgaged Property: Warehouse
------------------------------------------------------------------------------------------------------
Mortgage Interest Rate: 6.46% per annum (weighted average of Note A and
Note B)
------------------------------------------------------------------------------------------------------
Maturity Date: Tranche A: May 1, 2012
Tranche B: May 1, 2009
------------------------------------------------------------------------------------------------------
A-6-1
B. Description of Promissory Notes
------------------------------------------------------------------------------------------------------
Promissory Note B Purchase Date April 23, 2002
------------------------------------------------------------------------------------------------------
Promissory Note B Purchase Price (not including
accrued interest) $5,167,500
------------------------------------------------------------------------------------------------------
Promissory Note A Initial Principal Balance: $5,432,500
------------------------------------------------------------------------------------------------------
Promissory Note B Initial Principal Balance: $5,167,500
------------------------------------------------------------------------------------------------------
Promissory Note A Initial Percentage Interest: Approximately 51.25%
------------------------------------------------------------------------------------------------------
Promissory Note B Initial Percentage Interest: Approximately 48.75%
------------------------------------------------------------------------------------------------------
Promissory Note A Interest Rate: Tranche A: 6.37% per annum
Tranche B: 6.16% per annum
------------------------------------------------------------------------------------------------------
Promissory Note B Interest Rate: Tranche A: 6.78% per annum
Tranche B: 6.39% per annum
------------------------------------------------------------------------------------------------------
Promissory Note A Default Interest Rate: Lesser of (a) the maximum rate permitted by law
or (b) 5% plus the greater of (A) the Tranche A
Note Rate or the Tranche B Note Rate, as
applicable or (B) the prime rate (as set forth
in Note A).
------------------------------------------------------------------------------------------------------
Promissory Note B Default Interest Rate: Lesser of (a) the maximum rate permitted by law
or (b) 5% plus the greater of (A) the Tranche A
Note Rate or the Tranche B Note Rate, as
applicable or (B) the prime rate (as set forth
in Note B).
------------------------------------------------------------------------------------------------------
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
INDIVIDUAL LOAN SCHEDULE
A. Description of I-290 Industrial Park
------------------------------------------------------------------------------------------------------
Mortgage Loan Borrower: TMT 290 Industrial Park, Inc.
------------------------------------------------------------------------------------------------------
Date of Mortgage Loan: April 23, 2002
------------------------------------------------------------------------------------------------------
Initial Principal Amount of Loan: $14,900,000
------------------------------------------------------------------------------------------------------
Agreement Date Loan Principal Balance: $14,900,000
------------------------------------------------------------------------------------------------------
Locations of Mortgaged Property: Northborough, Massachusetts
------------------------------------------------------------------------------------------------------
Current Use of Mortgaged Property: Industrial
------------------------------------------------------------------------------------------------------
Mortgage Interest Rate: 6.46% per annum (weighted average of Note A and
Note B)
------------------------------------------------------------------------------------------------------
Maturity Date: Tranche A: May 1, 2012
Tranche B: May 1, 2009
------------------------------------------------------------------------------------------------------
A-7-1
B. Description of Promissory Notes
------------------------------------------------------------------------------------------------------
Promissory Note B Purchase Date April 23, 2002
------------------------------------------------------------------------------------------------------
Promissory Note B Purchase Price (not including
accrued interest) $7,263,750
------------------------------------------------------------------------------------------------------
Promissory Note A Initial Principal Balance: $7,636,250
------------------------------------------------------------------------------------------------------
Promissory Note B Initial Principal Balance: $7,263,750
------------------------------------------------------------------------------------------------------
Promissory Note A Initial Percentage Interest: Approximately 51.25%
------------------------------------------------------------------------------------------------------
Promissory Note B Initial Percentage Interest: Approximately 48.75%
------------------------------------------------------------------------------------------------------
Promissory Note A Interest Rate: Tranche A: 6.37% per annum
Tranche B: 6.16% per annum
------------------------------------------------------------------------------------------------------
Promissory Note B Interest Rate: Tranche A: 6.78% per annum
Tranche B: 6.39% per annum
------------------------------------------------------------------------------------------------------
Promissory Note A Default Interest Rate: Lesser of (a) the maximum rate permitted by law
or (b) 5% plus the greater of (A) the Tranche A
Note Rate or the Tranche B Note Rate, as
applicable or (B) the prime rate (as set forth
in Note A).
------------------------------------------------------------------------------------------------------
Promissory Note B Default Interest Rate: Lesser of (a) the maximum rate permitted by law
or (b) 5% plus the greater of (A) the Tranche A
Note Rate or the Tranche B Note Rate, as
applicable or (B) the prime rate (as set forth
in Note B).
------------------------------------------------------------------------------------------------------
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
INDIVIDUAL LOAN SCHEDULE
A. Description of Mortgage Loan
------------------------------------------------------------------------------------------------------
Mortgage Loan Borrower: TMT Demonet, Inc.
------------------------------------------------------------------------------------------------------
Date of Mortgage Loan: April 23, 2002
------------------------------------------------------------------------------------------------------
Initial Principal Amount of Loan: $12,000,000
------------------------------------------------------------------------------------------------------
Agreement Date Loan Principal Balance: $12,000,000
------------------------------------------------------------------------------------------------------
Locations of Mortgaged Property: Washington, D.C.
------------------------------------------------------------------------------------------------------
Current Use of Mortgaged Property: Office
------------------------------------------------------------------------------------------------------
Mortgage Interest Rate: 6.46% per annum (weighted average of Note A and
Note B)
------------------------------------------------------------------------------------------------------
Maturity Date: Tranche A: May 1, 2012
Tranche B: May 1, 2009
------------------------------------------------------------------------------------------------------
A-8-1
B. Description of Promissory Notes
------------------------------------------------------------------------------------------------------
Promissory Note B Purchase Date April 23, 2002
------------------------------------------------------------------------------------------------------
Promissory Note B Purchase Price (not including
accrued interest) $5,850,000
------------------------------------------------------------------------------------------------------
Promissory Note A Initial Principal Balance: $6,150,000
------------------------------------------------------------------------------------------------------
Promissory Note B Initial Principal Balance: $5,850,000
------------------------------------------------------------------------------------------------------
Promissory Note A Initial Percentage Interest: Approximately 51.25%
------------------------------------------------------------------------------------------------------
Promissory Note B Initial Percentage Interest: Approximately 48.75%
------------------------------------------------------------------------------------------------------
Promissory Note A Interest Rate: Tranche A: 6.37% per annum
Tranche B: 6.16% per annum
------------------------------------------------------------------------------------------------------
Promissory Note B Interest Rate: Tranche A: 6.78% per annum
Tranche B: 6.39% per annum
------------------------------------------------------------------------------------------------------
Promissory Note A Default Interest Rate: Lesser of (a) the maximum rate permitted by law
or (b) 5% plus the greater of (A) the Tranche A
Note Rate or the Tranche B Note Rate, as
applicable or (B) the prime rate (as set forth
in Note A).
------------------------------------------------------------------------------------------------------
Promissory Note B Default Interest Rate: Lesser of (a) the maximum rate permitted by law
or (b) 5% plus the greater of (A) the Tranche A
Note Rate or the Tranche B Note Rate, as
applicable or (B) the prime rate (as set forth
in Note B).
------------------------------------------------------------------------------------------------------
A-8-2
EXHIBIT B
Initial Note A Holder:
Prudential Mortgage Capital Funding, LLC
Notice Address:
Prudential Mortgage Capital Funding, LLC
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Initial Note B Holder:
The Prudential Insurance Company Of America
Notice Address:
The Prudential Insurance Company Of America
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: R. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
The Prudential Insurance Company of America
Law Department
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
L-1
EXHIBIT M
FORM OF FINAL CERTIFICATION OF TRUSTEE
[Date]
Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Bear ▇▇▇▇▇▇▇ Commercial Mortgage, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Bear, ▇▇▇▇▇▇▇ Funding, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Prudential Mortgage Capital Funding, LLC
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates,
Series 2002-PBW1
-------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02(b) of that certain Pooling and
Servicing Agreement dated as of October 1, 2002 (the "Pooling and Servicing
Agreement") pursuant to which the certificates of the above-referenced series
were issued, the undersigned hereby certifies that, with respect to each
Original Pooled Mortgage Loan subject to the Pooling and Servicing Agreement,
and subject to the exceptions noted in the schedule of exceptions attached
hereto, that: (i) the original Mortgage Note specified in clause (i) of the
definition of "Mortgage File" and all allonges thereto, if any (or a copy of
such Mortgage Note, together with a lost note affidavit and indemnity certifying
that the original of such Mortgage Note has been lost), the original or copy of
documents specified in clauses (ii), (iii), (iv) and (viii) (without regard to
the verification of the effective date with respect to a title policy or the
date of funding with respect to a title commitment) and (x) (if the Pooled
Mortgage Loan Schedule specifies that a material portion of the interest of the
Borrower in the related Mortgaged Property consists of a leasehold interest) of
the definition of "Mortgage File" have been received by the undersigned or
Custodian on its behalf; [(ii) the recordation/filing contemplated by Section
2.01(e) of the
M-1
Pooling and Servicing Agreement has been completed (based solely on receipt by
the undersigned of the particular recorded/filed documents or an appropriate
receipt of recording/filing therefor);] (iii) all documents received by the
undersigned or any Custodian with respect to such Pooled Mortgage Loan have been
reviewed by the undersigned or by such Custodian on its behalf and (A) appear
regular on their face (handwritten additions, changes or corrections shall not
constitute irregularities if initialed by the Borrower), (B) appear to have been
executed and (C) purport to relate to such Pooled Mortgage Loan; and (iv) based
on the examinations referred to in Sections 2.02(a) and 2.02(b) of the Pooling
Agreement and only as to the foregoing documents, the information set forth in
the Pooled Mortgage Loan Schedule with respect to the items specified in clause
(iii)(A) and clause (vi) of the definition of "Pooled Mortgage Loan Schedule"
accurately reflects the information set forth in the related Mortgage File.
Capitalized terms used but not defined herein shall have the
meanings given them in the Pooling and Servicing Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Name:
Title:
M-2
EXHIBIT N
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (this "Agreement") is
made as of the __ day of ____________ _____, by and between ___________________
__________________________, a ________________ corporation (the "Assignor") and
__________________________, a ________________ corporation (the "Assignee").
Capitalized terms used herein and not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of October 1, 2002,
among Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc. as Depositor, Prudential
Asset Resources, Inc. as a Master Servicer and as RREEF Textron Special
Servicer, ▇▇▇▇▇ Fargo Bank, National Association, as a Master Servicer, ARCap
Special Servicing, Inc. as General Special Servicer, LaSalle Bank National
Association as Trustee, ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as
Certificate Administrator and as Tax Administrator, ABN AMRO Bank N.V. as Fiscal
Agent, and The Prudential Insurance Company of America as RREEF Textron B-Note
Holder.
WHEREAS, pursuant to the terms and conditions of Section
3.27(b) of the Pooling and Servicing Agreement and Section 14 of the RREEF
Co-Lender Agreement, the Assignor is entitled to transfer its interest in the
RREEF B-Note Loan,
WHEREAS, subject to the terms and conditions of Section
3.27(b) of the Pooling and Servicing Agreement, the parties thereto shall
recognize as the RREEF B-Note Holder the most recent endorsee of the RREEF
B-Note,
WHEREAS, in satisfaction of the condition stipulated in
Section 3.27(b)(ii) of the Pooling and Servicing Agreement, the Assignor and
Assignee have entered into this Agreement,
WHEREAS the Assignor desires to assign to the Assignee, as of
___________ ___, ____ (the "Effective Date"), all right, title and interest of
the Assignor in, to and under the RREEF Co-Lender Agreement and the Pooling and
Servicing Agreement, and the Assignee desires to assume as of ___________, ____,
all rights, duties and obligations of the Assignor under the RREEF Co-Lender
Agreement and the Pooling and Servicing Agreement, and
WHEREAS the Assignee accepts and agrees to be bound by the
terms of the Pooling and Servicing Agreement insofar as it relates to the RREEF
B-Note Loan.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, the Assignor and the Assignee agree as
follows:
1. Assignment. Effective as of the date hereof, the Assignor
hereby assigns and transfers to the Assignee all right, title and interest of
the Assignor in, to and under the RREEF Co-Lender Agreement and the Pooling and
Servicing Agreement, and the Assignee hereby accepts such assignment and
transfer and agrees to accept, assume, perform and otherwise discharge all
rights, duties and obligations, as applicable of the Assignor, under the RREEF
Co-Lender Agreement and the Pooling and Servicing Agreement, in each case
subject to
N-1
the provisions of this Agreement and subject to all the terms, covenants,
conditions and provisions of the RREEF Co-Lender Agreement and the Pooling and
Servicing Agreement. The Assignee further accepts and agrees to be bound by the
terms of the Pooling and Servicing Agreement insofar as it relates to the RREEF
B-Note Loan.
2 Further Assurances. The parties shall execute and deliver
such further and additional instruments, agreements and other documents as may
be necessary to evidence or carry out the provisions of this Agreement.
3. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4. Severability. If any term or provision of this Agreement or
any application shall be invalid and unenforceable, the remainder of this
Agreement and any other application of such term or provision shall not be
affected hereby.
5. Successors and Assigns. This Assignment and the rights and
obligations hereunder shall inure to the benefit of and be binding upon the
Assignor and the Assignee and their respective successors and assigns.
6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York regardless of the
laws that might otherwise govern under applicable principles of conflicts of
laws.
N-2
IN WITNESS WHEREOF, each of the undersigned has caused this
Assignment and Assumption Agreement to be duly executed on the ___ day of
___________ ____.
---------------------------------,
as Assignor
By:______________________________
Name:
Title:
---------------------------------,
as Assignee
By:______________________________
Name:
Title:
N-3
SCHEDULE I-A
SCHEDULE OF PMCF POOLED MORTGAGE LOANS
Cut-Off Monthly
Seller Loan Original Date Debt
ID Number Property Name Address City State Zip Code Balance Balance Service
-- ------ ------------- ------- ---- ----- -------- ------- ------- -------
2 6104564 & RREEF Textron Various Various Various Various 41,000,000 41,000,000 214,944.00
6104565 Portfolio 10
year & RREEF
Textron
Portfolio 7 year
2a 6104564 RREEF Textron Various Various Various Various 25,625,000 25,625,000 136,029.00
Portfolio 10 year
2a1 6104564F I-290 Industrial ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 4,772,656 4,772,656
Park ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ 6104564G Marley Run ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,500,391 4,500,391
Apartments
2a3 6104564E Bear Creek ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,971,875 3,971,875
Village Shopping N.E.
Center
2a4 6104564A ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,843,750 3,843,750
Avenue
2a5 6104564B Dallas Various Various TX Various 3,395,313 3,395,313
Industrial
Portfolio
2a6 6104564D Pointe at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,139,063 3,139,063
Crystal Lake Way Beach
2a7 6104564C Lakeridge at the ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,001,953 2,001,953
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Textron Various Various Various Various 15,375,000 15,375,000 78,915.00
Portfolio 7 year
2b1 6104565F I-290 Industrial ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 2,863,594 2,863,594
Park ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ 6104565G Marley Run ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,700,234 2,700,234
Apartments
2b3 6104565E Bear Creek ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,383,125 2,383,125
Village Shopping N.E.
Center
2b4 6104565A ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,306,250 2,306,250
Avenue
2b5 6104565B Dallas Various Various TX Various 2,037,188 2,037,188
Industrial
Portfolio
2b6 6104565D Pointe at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,883,438 1,883,438
Crystal Lake Way Beach
2b7 6104565C Lakeridge at the ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,201,172 1,201,172
Moors Avenue
3 6104676 ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 38,000,000 38,000,000 202,666.67
5 6104675 Fifth Third ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 25,000,000 24,977,001 156,540.21
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ - ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 24,625,000 24,444,197 159,881.00
Shopping Center ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 4600-4750 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 24,325,000 24,288,988 160,367.22
▇▇▇▇▇ Road
11 6104624 The Mansions at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 17,000,000 16,964,156 112,531.14
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇- ▇▇ ▇▇▇▇▇ 14,650,000 14,637,461 95,311.95
Capitol Street Street, NE ton
Building
14 6104445 Great Southern 3605-3879 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 13,830,000 13,741,252 91,269.48
Shopping Center High Street
16 6103831 North Decatur ▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 13,600,000 13,570,951 89,569.62
Square Shopping Decatur Road
Center
17 6104673 The ▇▇▇▇ at ▇▇▇▇▇▇ Road and ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 13,700,000 13,443,281 103,212.60
Lafayette Hill Ridge Pike Hill
18 6104522 United Plaza XII ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 13,300,000 13,242,674 96,905.84
Boulevard
21 6104688 Highland Run ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 12,200,000 12,188,907 76,871.76
East Apartments Mountain
22 6104428 Fire Mountain ▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 11,850,000 11,769,851 79,875.64
Shopping Center Way
23 6104672 Park Del Amo 2355 - 2377 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 12,250,000 11,747,107 94,872.32
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ View ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 11,000,000 10,982,304 69,962.10
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 10,500,000 10,469,533 69,997.85
▇▇▇▇▇▇▇ Chanticleer Drive
Apartments
30 6104514 ▇▇▇▇ Portfolio Various Various Various Various 8,750,000 8,639,816 68,734.40
30a 6104514D Ark Self Storage ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,035,020 2,009,394
- ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ Self Storage ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,947,051 1,922,533
- Marietta So.
30c 6104514C Ark Self Storage ▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,870,811 1,847,253
- Savannah Bluff Road
Stated
Original Remaining
Monthly Term to Term to Original Remaining Crossed
Debt Interest ARD Maturity Maturity Maturity Amorti- Amorti- With Prepayment
Service Mortgage Accrual Loan Date or ARD or ARD zation zation Other Crossed Provisions
ID After IO Rate Basis (Y/N) or ARD (mos.) (mos.) Term (mos.) Term (mos.) Loans Loan ID (# of payments)
-- -------- ---- ----- ----- ------ ------ ------ ----------- ----------- ----- ------- ---------------
2 Various 30/360 No Various Various Various 0 0 Yes 6104545 Various
&
6104544
2a 6.3700% 30/360 No 5/1/2012 120 115 0 0 Yes 6104545 Grtr1% Or
YM(119)/Open(1)
2a1
2a2
2a3
2a4
2a5
2a6
2a7
2b 6.1600% 30/360 No 5/1/2009 84 79 0 0 Yes 6104544 Grtr1% Or
YM(83)/Open(1)
2b1
2b2
2b3
2b4
2b5
2b6
2b7
3 254,209.31 6.4000% Actual Yes 9/1/2012 120 119 300 300 LO(26)/
/360 Defeasance(90)/
Open(4)
5 6.4100% Actual/ Yes 9/1/2012 120 119 360 359 LO(26)/Defea-
360 sance(90)/Open(4)
6 6.7600% Actual/ No 1/1/2012 120 111 360 351 LO(34)/Defea-
360 sance(82)/Open(4)
7 6.9100% Actual/ Yes 8/1/2012 120 118 360 358 LO(27)/Defea-
360 sance(89)/Open(4)
11 6.9500% Actual/ No 7/1/2012 120 117 360 357 LO(28)/Defea-
360 sance(88)/Open(4)
12 6.7800% Actual/ Yes 9/1/2012 120 119 360 359 LO(26)/Defea-
360 sance(90)/Open(4)
14 6.9200% Actual/ Yes 5/1/2012 123 115 360 352 LO(33)/Defea-
360 sance(83)/Open(7)
16 6.9000% Actual/ No 7/1/2012 120 117 360 357 LO(28)/Defea-
360 sance(88)/Open(4)
17 8.2800% 30/360 No 7/1/2010 120 93 360 333 LO(37)/Grtr1%
Or
YM(80)/Open(3)
18 7.3400% Actual/ Yes 6/1/2009 84 80 300 296 LO(29)/Defea-
360 sance(51)/Open(4)
21 6.4700% Actual/ No 9/1/2012 120 119 360 359 LO(26)/Defea-
360 sance(90)/Open(4)
22 7.1300% Actual/ No 1/1/2012 120 111 360 351 LO(34)/Defea-
360 sance(82)/Open(4)
23 8.0400% 30/360 No 11/1/2009 120 85 300 265 LO(37)/Grtr1%
Or
YM(80)/Open(3)
24 6.5600% Actual/ No 8/1/2012 120 118 360 358 LO(27)/Defea-
360 sance(89)/Open(4)
26 7.0200% Actual/ No 6/1/2012 120 116 360 356 LO(29)/Defea-
360 sance(87)/Open(4)
30 7.1700% Actual/ No 3/1/2012 120 113 240 233 LO(32)/Defea-
360 sance(84)/Open(4)
30a
30b
30c
Letter
Mortgage of Initial
Loan Administrative Due Grace Letter Credit Guarantor/ Hospitality Master
ID Interest Seller Fee Rate Date Period of Credit Description Recourse Property Servicer
-- -------- ------ -------- ---- ------ --------- ----------- -------- -------- --------
2 Various PMCF 0.05330% 1 0 Prudential Asset
Resources, Inc.
2a Various PMCF 0.05330% 1 0 Prudential Asset
Resources, Inc.
2a1 Fee Simple PMCF Prudential Asset
Resources, Inc.
2a2 Fee Simple PMCF Prudential Asset
Resources, Inc.
2a3 Fee PMCF Prudential Asset
Simple/Leasehold Resources, Inc.
2a4 Fee Simple PMCF Prudential Asset
Resources, Inc.
2a5 Fee Simple PMCF Prudential Asset
Resources, Inc.
2a6 Fee Simple PMCF Prudential Asset
Resources, Inc.
2a7 Fee Simple PMCF Prudential Asset
Resources, Inc.
2b Various PMCF 0.05330% 1 0 Prudential Asset
Resources, Inc.
2b1 Fee Simple PMCF Prudential Asset
Resources, Inc.
2b2 Fee Simple PMCF Prudential Asset
Resources, Inc.
2b3 Fee PMCF Prudential Asset
Simple/Leasehold Resources, Inc.
2b4 Fee Simple PMCF Prudential Asset
Resources, Inc.
2b5 Fee Simple PMCF Prudential Asset
Resources, Inc.
2b6 Fee Simple PMCF Prudential Asset
Resources, Inc.
2b7 Fee Simple PMCF Prudential Asset
Resources, Inc.
3 Fee Simple PMCF 0.05330% 1 5 1,049,211. Security Prudential Asset
(LOC) deposit Resources, Inc.
for a
tenant
at the
property,
▇.▇.
▇▇▇▇
Companies,
Ltd.
5 Fee Simple PMCF 0.09130% 1 5 Prudential Asset
Resources, Inc.
6 Fee Simple PMCF 0.05330% 1 5 Prudential Asset
Resources, Inc.
7 Fee Simple PMCF 0.05330% 1 5 Prudential Asset
Resources, Inc.
11 Fee Simple PMCF 0.05330% 1 5 Prudential Asset
Resources, Inc.
12 Fee Simple PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
14 Fee Simple PMCF 0.12330% 1 5 Prudential Asset
Resources, Inc.
16 Fee Simple PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
17 Fee Simple PMCF 0.05330% 1 0 51,160 Outstanding Prudential Asset
(LOC) Construction Resources, Inc.
Reserve
18 Fee Simple PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
21 Fee Simple PMCF 0.05330% 1 5 Prudential Asset
Resources, Inc.
22 Fee Simple/ PMCF 0.05330% 1 5 Prudential Asset
Leasehold Resources, Inc.
23 Fee Simple PMCF 0.05330% 1 0 Prudential Asset
Resources, Inc.
24 Fee Simple PMCF 0.05330% 1 5 Prudential Asset
Resources, Inc.
26 Fee Simple PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
30 Various PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
30a Fee Simple PMCF Prudential Asset
Resources, Inc.
30b Fee Simple PMCF Prudential Asset
Resources, Inc.
30c Fee Simple PMCF Prudential Asset
Resources, Inc.
S-I-A-1
Cut-Off Monthly
Seller Loan Original Date Debt
ID Number Property Name Address City State Zip Code Balance Balance Service
-- ------ ------------- ------- ---- ----- -------- ------- ------- -------
30d 6104514F Ark Self Storage ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,301,944 1,285,549
- Norcross Boulevard
30e 6104514B Ark Self Storage ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,043,901 1,030,755
- ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ 6104514A Ark Self Storage ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 551,273 ▇▇▇,▇▇▇
- ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
31 6104626 Simi Valley Various Various Various Various 8,400,000 8,393,142 55,998.28
Retail and
Office Center
31a 6104626A Smart & Final 1778-1992 Erringer ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,045,161 7,039,409
Retail ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ Simi Valley ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,354,839 1,353,733
Office Center Angeles Avenue
32 6104674 Shoppes at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,500,000 8,347,274 61,324.45
Beacon Light Highway Point
33 6104667 Constitution ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇- ▇▇ ▇▇▇▇▇ 8,700,000 8,235,182 61,823.19
Place phia
34 6104645 Wildwood Ridge ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,150,000 8,142,560 51,245.84
Apartments
35 6104648 Westlake Village ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,000,000 7,984,036 54,086.60
Business Park Road,766-822 Oaks
Hampshire Rd, 756
Lakefield Rd
36 6104625 Clermont ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ & ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,775,000 7,767,764 48,378.83
Center Citrus Tower
Boulevard
39 6104431 Washington ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,200,000 7,167,535 50,459.48
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,100,000 7,047,870 46,097.67
Street
41 6104486 Broadmoor ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,000,000 6,957,437 47,373.10
Apartments of Road
St. ▇▇▇▇▇▇
42 6104612 Boulders VI ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,950,000 6,930,462 46,940.77
Office Building Springs Drive
43 6104611 Kierland 14614 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,700,000 6,686,237 44,800.48
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇
▇▇ 6104542 Tall Oaks ▇▇▇▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,400,000 6,380,536 45,188.78
Shopping Center Shore Drive
46 6104613 Boulders VII ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,350,000 6,332,149 42,888.33
Office Building Springs Drive
47 6104615 Tanglewood ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,300,000 6,278,351 38,995.29
Apartments
50 6104393 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,000,000 5,935,873 42,322.96
Supermarket Road
51 6104046 Village Shops ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,800,000 5,740,261 43,999.63
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ Montecito ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,700,000 5,655,388 40,723.80
Apartments
54 6104649 ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,400,000 5,389,224 36,508.46
Boulevard
55 6104452 Port Royal ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,362,500 5,340,895 36,982.65
Village ▇▇▇▇▇▇
61 6104628 Valencia ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,900,000 4,889,029 34,945.39
Executive Plaza Clarita
63 6104652 ▇▇▇▇▇ Street ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,850,000 4,838,755 34,000.84
Building Street Springs
64 6104398 Williamsburg ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,700,000 4,645,411 33,609.41
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 1701 and ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,200,000 4,172,037 28,509.10
Shopping Center ▇▇▇▇▇▇ Street
70 6104507 ▇▇▇▇▇ at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,900,000 3,875,399 25,946.80
Southlake
71 6104670 Brookhollow 23121 Antonio ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,000,000 3,825,454 31,005.26
Business Park Parkway Santa
▇▇▇▇▇▇▇▇▇
72 6103960 Anna's Vineyard ▇▇▇▇ ▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,797,368 3,794,757 27,546.73
Apartments
74 6104549 Hastings Drive ▇▇▇ - ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,750,000 3,743,043 26,041.03
Drive Grove
76 6104660 Railroad ▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ 3,600,000 3,595,156 24,680.55
Industrial Railroad Street Industry
77 6104543 ▇▇▇▇ ▇▇▇▇▇ Plaza ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,550,000 3,540,644 24,603.71
78 6104444 1 & ▇ ▇▇▇▇▇▇ ▇ & ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,500,000 3,484,402 25,095.65
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ Stratford Arms ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,450,000 3,428,238 22,952.94
Apartments Road
Original Remaining
Monthly Term to Term to Original Remaining Crossed
Debt Interest ARD Maturity Maturity Maturity Amorti- Amorti- With Prepayment
Service Mortgage Accrual Loan Date or ARD or ARD zation zation Other Crossed Provisions
ID After IO Rate Basis (Y/N) or ARD (mos.) (mos.) Term (mos.) Term (mos.) Loans Loan ID (# of payments)
-- -------- ---- ----- ----- ------ ------ ------ ----------- ----------- ----- ------- ---------------
30d
30e
30f
31 7.0200% Actual/ No 9/1/2012 120 119 360 359 LO(26)/Defea-
360 sance(90)/Open(4)
31a
31b
32 7.2214% 30/360 No 7/1/2011 120 105 300 285 LO(61)/Grtr1%
Or
YM(55)/Open(4)
33 7.0600% 30/360 No 7/1/2009 120 81 300 261 LO(25)/Grtr1%
Or
YM(91)/Open(4)
34 6.4500% Actual/ No 9/1/2012 120 119 360 359 LO(26)/Defea-
360 sance(90)/Open(4)
35 7.1600% Actual/ No 7/1/2012 120 117 360 357 LO(28)/Defea-
360 sance(88)/Open(4)
36 6.3500% Actual/ No 9/1/2012 120 119 360 359 LO(26)/Defea-
360 sance(90)/Open(4)
39 7.5200% Actual/ Yes 3/1/2012 120 113 360 353 LO(32)/Defea-
360 sance(84)/Open(4)
40 6.7600% Actual/ No 1/1/2012 120 111 360 351 LO(34)/Defea-
360 sance(82)/Open(4)
41 7.1700% Actual/ No 2/1/2012 120 112 360 352 LO(33)/Defea-
360 sance(80)/Open(7)
42 7.1500% Actual/ No 6/1/2012 120 116 360 356 LO(29)/Defea-
360 sance(87)/Open(4)
43 7.0500% Actual/ No 7/1/2012 120 117 360 357 LO(28)/Defea-
360 sance(88)/Open(4)
45 7.6000% Actual/ No 5/1/2012 120 115 360 355 LO(30)/Defea-
360 sance(86)/Open(4)
46 7.1500% Actual/ No 6/1/2012 120 116 360 356 LO(29)/Defea-
360 sance(87)/Open(4)
47 6.3000% Actual/ No 6/1/2012 120 116 360 356 LO(29)/Defea-
360 sance(87)/Open(4)
50 7.3300% Actual/ Yes 10/1/2011 120 108 330 318 LO(37)/Defea-
360 sance(79)/Open(4)
51 7.8000% Actual/ Yes 12/1/2011 120 110 300 290 LO(35)/Defea-
360 sance(81)/Open(4)
53 7.1200% Actual/ No 3/1/2012 120 113 300 293 LO(32)/Defea-
360 sance(84)/Open(4)
54 7.1600% Actual/ No 7/1/2012 120 117 360 357 LO(28)/Defea-
360 sance(88)/Open(4)
55 7.3600% Actual/ No 4/1/2012 120 114 360 354 LO(31)/Defea-
360 sance(85)/Open(4)
61 7.1000% Actual/ No 8/1/2012 120 118 300 298 LO(27)/Defea-
360 samce(89)/Open(4)
63 6.9100% Actual/ No 8/1/2012 120 118 300 298 LO(49)/Grtr1%
360 Or
YM(64)/Open(7)
64 7.1300% Actual/ Yes 12/1/2011 120 110 300 290 LO(35)/Defea-
360 sance(80)/Open(5)
68 7.2000% Actual/ No 1/1/2012 120 111 360 351 LO(34)/Defea-
360 sance(81)/Open(5)
70 7.0000% Actual/ No 2/1/2012 120 112 360 352 LO(49)/Defea-
360 sance(67)/Open(4)
71 8.0500% 30/360 No 9/1/2006 84 47 300 263 LO(25)/Grtr1%
Or
YM(55)/Open(4)
72 7.8800% Actual/ No 9/1/2011 108 107 360 359 LO(26)/Defea-
360 sance(78)/Open(4)
74 7.4300% Actual/ No 7/1/2012 120 117 360 357 LO(28)/Defea-
360 sance(88)/Open(4)
76 7.3000% Actual/ No 8/1/2012 120 118 360 358 LO(27)/Defea-
360 sance(89)/Open(4)
77 7.4100% Actual/ No 6/1/2012 120 116 360 356 LO(29)/Defea-
360 sance(87)/Open(4)
78 7.1600% Actual/ No 6/1/2012 120 116 300 296 LO(29)/Defea-
360 sance(49)/Open(4)
79 7.0000% Actual/ No 2/1/2012 120 112 360 352 LO(49)/Defea-
360 sance(67)/Open(4)
Letter
Mortgage of Initial
Loan Administrative Due Grace Letter Credit Guarantor Hospitality Master
ID Interest Seller Fee Rate Date Period of Credit Description Recourse Property Servicer
-- -------- ------ -------- ---- ------ --------- ----------- -------- -------- --------
30d Fee Simple PMCF Prudential Asset
Resources, Inc.
30e Fee Simple PMCF Prudential Asset
Resources, Inc.
30f Fee Simple PMCF Prudential Asset
Resources, Inc.
31 Various PMCF 0.05330% 1 5 Prudential Asset
Resources, Inc.
31a Fee Simple PMCF Prudential Asset
Resources, Inc.
31b Fee Simple PMCF Prudential Asset
Resources, Inc.
32 Fee Simple PMCF 0.05330% 1 0 Prudential Asset
Resources, Inc.
33 Fee Simple PMCF 0.05330% 1 0 Prudential Asset
Resources, Inc.
34 Fee Simple PMCF 0.09330% 1 5 Prudential Asset
Resources, Inc.
35 Fee Simple PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
36 Fee Simple PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
39 Fee Simple PMCF 0.10330% 1 5 745,000 Occupancy Prudential Asset
(LOC) Reserve Resources, Inc.
40 Fee Simple PMCF 0.05330% 1 5 Prudential Asset
Resources, Inc.
41 Fee Simple PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
42 Fee Simple PMCF 0.05330% 1 5 Prudential Asset
Resources, Inc.
43 Fee Simple PMCF 0.10330% 1 5 150,000 In lieu Prudential Asset
(LOC) of Resources, Inc.
monthly
TI/LC
deposits
45 Fee Simple PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
46 Fee Simple PMCF 0.05330% 1 5 Prudential Asset
Resources, Inc.
47 Fee Simple PMCF 0.05330% 1 5 Prudential Asset
Resources, Inc.
50 Fee Simple PMCF 0.10330% 1 5 44,000 Replacement, Prudential Asset
(LOC), Tax, Resources, Inc.
32,461(LOCInsurance
9,569 Reserves
(LOC)
51 Leasehold PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
53 Fee Simple PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
54 Fee Simple PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
55 Fee Simple PMCF 0.05330% 1 5 Prudential Asset
Resources, Inc.
61 Fee Simple PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
63 Fee Simple PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
64 Fee Simple PMCF 0.05330% 1 5 150,000 Retenanting Prudential Asset
(LOC) costs Resources, Inc.
asociated
with the
▇▇▇▇▇▇▇▇▇▇
Brother's
space
68 Fee Simple PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
70 Fee Simple PMCF 0.05330% 1 5 Prudential Asset
Resources, Inc.
71 Fee Simple PMCF 0.05330% 1 0 Prudential Asset
Resources, Inc.
72 Fee Simple PMCF 0.10330% 1 10 Prudential Asset
Resources, Inc.
74 Fee Simple PMCF 0.05330% 1 5 149,216 Credit Prudential Asset
(LOC) enhancement Resources, Inc.
for a
tenant
at the
property,
CRS
76 Fee Simple PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
77 Fee Simple PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
78 Fee Simple PMCF 0.11330% 1 5 Prudential Asset
Resources, Inc.
79 Fee Simple PMCF 0.05330% 1 5 Prudential Asset
Resources, Inc.
S-I-A-2
Cut-Off Monthly
Seller Loan Original Date Debt
ID Number Property Name Address City State Zip Code Balance Balance Service
-- ------ ------------- ------- ---- ----- -------- ------- ------- -------
80 6104546 First and Cedar ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,400,000 3,324,804 30,922.46
Building
81 6104602 Shenandoah Square ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,135,000 3,127,306 22,329.68
Main Street
82 6104399 Southfield 20978-21084 and ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,125,000 3,105,989 21,774.18
Commerce Center 21118-21186 Bridge
Street
84 6104634 ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,000,000 2,997,325 19,100.36
Apartments Pike
88 6104598 Braeswood Atrium ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,960,000 2,951,618 19,932.08
Braeswood Boulevard
89 6104577 Westcreek and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,905,000 2,896,008 18,841.77
California ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ East Grand ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ 2,850,000 2,830,708 23,151.48
Business Center Avenue Francisco
92 6104474 Juliet ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,800,000 2,784,338 19,673.96
Park - Building Flamingo Road
C & D
96 6104655 4350 - 4374 4350 - 4374 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,530,000 2,526,173 16,527.43
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
97 6104677 ▇▇▇▇▇▇▇▇▇ 4055 & ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,450,000 2,445,094 18,483.54
Industrial Valley Highway
Building
98 6104422 ▇▇▇▇▇ Crest ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,375,000 2,357,336 17,381.46
Shopping Center Avenue
100 6104548 800 South ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,300,000 2,297,453 17,267.00
Industry Way
102 6104581 Belvedere 1100, 1110 & 1120 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,250,000 2,243,706 15,227.07
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇
110 6104547 Villas at the ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,080,000 2,073,257 14,344.79
Woodlands
Apartments
112 6104617 Eastowne Plaza II ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,025,000 2,022,647 14,806.87
113 6104495 Handy Storage ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,000,000 1,981,719 14,585.24
116 6104605 The Michigan Various Various Various Various 1,725,000 1,717,397 12,435.10
Building and The
V Building
116a 6104605A The Michigan ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 914,773 910,741
Building
116b 6104605B The V Building ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 810,227 806,656
South
Stated
Original Remaining
Monthly Term to Term to Original Remaining Crossed
Debt Interest ARD Maturity Maturity Maturity Amorti- Amorti- With Prepayment
Service Mortgage Accrual Loan Date or ARD or ARD zation zation Other Crossed Provisions
ID After IO Rate Basis (Y/N) or ARD (mos.) (mos.) Term (mos.) Term (mos.) Loans Loan ID (# of payments) I
-- -------- ---- ----- ----- ------ ------ ------ ----------- ----------- ----- ------- --------------- -
80 7.1900% 30/360 No 3/1/2017 180 173 180 173 LO(49)/Grtr1%
Or
YM(124)/Open(7)
81 7.6900% Actual/ No 6/1/2012 120 116 360 356 LO(29)/Defea-
360 sance(87)/Open(4)
82 7.2000% Actual/ No 3/1/2012 120 113 330 323 LO(32)/Defea-
360 sance(84)/Open(4)
84 6.5700% Actual/ No 9/1/2012 120 119 360 359 LO(26)/Defea-
360 sance(89)/Open(5)
88 7.1200% Actual/ No 6/1/2012 120 116 360 356 LO(29)/Defea-
360 sance(87)/Open(4)
89 6.7500% Actual/ No 6/1/2012 120 116 360 356 LO(29)/Defea-
360 sance(87)/Open(4)
90 7.6100% Actual/ No 6/1/2012 120 116 240 236 LO(29)/Defea-
360 sance(87)/Open(4)
92 7.5500% Actual/ No 2/1/2012 120 112 360 352 LO(33)/Defea-
360 sance(83)/Open(4)
96 6.8200% Actual/ No 8/1/2012 120 118 360 358 LO(49)/Grtr1%
360 Or
YM(67)/Open(4)
97 6.6500% Actual/ No 9/1/2012 120 119 240 239 LO(26)/Defea-
360 sance(87)/Open(7)
98 7.3900% Actual/ No 3/1/2012 120 113 300 293 LO(32)/Defea-
360 sance(84)/Open(4)
100 7.6800% Actual/ No 7/1/2012 122 117 300 299 LO(53)/Grtr1%
360 Or
YM(65)/Open(4)
102 7.1700% Actual/ No 6/1/2012 120 116 360 356 LO(29)/Defea-
360 sance(87)/Open(4)
110 7.3600% Actual/ No 5/1/2012 120 115 360 355 LO(30)/Defea-
360 sance(86)/Open(4)
112 7.3800% Actual/ No 9/1/2012 120 119 300 299 LO(26)/Defea-
360 sance(90)/Open(4)
113 7.3500% Actual/ No 2/1/2012 120 112 300 292 LO(33)/Defea-
360 sance(83)/Open(4)
116 7.2200% Actual/ No 6/1/2012 120 116 300 296 LO(61)/Grtr1%
360 Or
YM(55)/Open(4)
116a
116b
Letter
Mortgage of Initial
Loan Administrative Due Grace Letter Credit Guarantor Hospitality Master
ID Interest Seller Fee Rate Date Period of Credit Description Recourse Property Servicer
-- ------- ------ -------- ---- ------ --------- ----------- -------- -------- --------
80 Fee Simple PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
81 Fee Simpl PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
82 Fee Simple PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
84 Fee Simple PMCF 0.12330% 1 5 Prudential Asset
Resources, Inc.
88 Fee Simple PMCF 0.05330% 1 5 Prudential Asset
Resources, Inc.
89 Fee Simple PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
90 Fee Simple PMCF 0.05330% 1 5 Prudential Asset
Resources, Inc.
92 Fee Simple PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
96 Fee Simple PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
97 Fee Simple PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
98 Fee Simple PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
100 Fee Simple PMCF 0.05330% 1 5 Prudential Asset
Resources, Inc.
102 Fee Simple PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
110 Fee Simple PMCF 0.05330% 1 5 Prudential Asset
Resources, Inc.
112 Fee Simple PMCF 0.10330% 1 5 236,500 Hunan Gardens Occupancy Prudential Asset
(LOC), Reserve, Replacement, Resources, Inc.
20,000 Tax, Insurance, and TI/LC
(LOC), initial reserves
16,210
(LOC),
2,565
(LOC),
48,000
(LOC)
113 Fee Simple PMCF 0.05330% 1 5 Prudential Asset
Resources, Inc.
116 Various PMCF 0.10330% 1 5 Prudential Asset
Resources, Inc.
116a Fee Simple PMCF Prudential Asset
Resources, Inc.
116b Fee Simple PMCF Prudential Asset
S-I-A-3
SCHEDULE I-B
SCHEDULE OF BSCMI AND BSFI POOLED MORTGAGE LOANS
Seller Cut-Off Monthly
Loan Property Original Date Debt
ID Number Name Address City State Zip Code Balance Balance Service
-- ------ ---- ------- ---- ----- -------- ------- ------- -------
1 34687 ▇▇▇▇ Outlet ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 64,000,000 63,789,153 454,791.28
Center ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 25,350,000 25,311,005 164,419.62
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 21,000,000 20,968,496 137,674.53
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇ Retail Various Various Various Various 21,000,000 20,955,145 138,306.03
Portfolio
9a 34273A CNL Retail ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,122,713 5,111,771
Portfolio - University Drive
▇▇▇▇▇▇ &
Noble
9b 34273E CNL Retail ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇ ▇▇▇▇▇ 4,935,297 4,924,756
Portfolio - Sunrise Boulevard Lauderdale
Borders
Books
9c 34273D CNL Retail ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇ ▇▇▇▇▇ 4,685,408 4,675,400
Portfolio - Petersburg
Best Buy
9d 34273B CNL Retail ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,320,393 3,313,301
Portfolio - Bloomingdale
Kash 'N Avenue
▇▇▇▇▇
9e 34273C CNL Retail ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,936,189 2,929,918
Portfolio - Street
Bed Bath &
Beyond
10 34162 Valencia 28470/28490 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 17,500,000 17,500,000 110,842.18
Corporate Stanford Avenue
Plaza
13 34077 3220 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 14,400,000 14,350,394 97,015.47
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇ ▇▇▇▇▇ Celebration ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 13,600,000 13,600,000 68,340.00
X ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 13,025,000 13,006,587 87,532.16
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ 11-15 ▇▇-▇▇ ▇▇▇▇'▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 12,600,000 12,579,754 80,179.95
▇▇▇▇'▇ ▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 3335-3377 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 9,800,000 9,800,000 68,640.45
Mews Hempstead
Shopping Turnpike
Center
28 35227 Racal ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 9,500,000 9,491,675 61,049.56
Instruments
Headquarters
29 34563 Mountain ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,700,000 8,687,701 58,466.78
Marketplace
37 35519 ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,500,000 7,500,000 37,703.99
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Avenue
Shopping
Center
38 33649 Cherry 11604-11634 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,300,000 7,285,479 49,192.55
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 6,600,000 6,565,093 44,624.96
▇▇▇▇▇▇ - ▇▇▇▇▇
▇▇▇▇▇ ▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,100,000 6,090,728 39,767.44
▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,050,000 6,040,957 39,723.98
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ Celebration ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,700,000 5,700,000 28,880.00
▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,000,000 4,989,594 33,265.12
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ L&R Auto ▇▇▇-▇▇ ▇. ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,990,000 4,974,237 36,148.47
Park - ▇▇▇-▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇▇ St., 114-18 W. 9
62 34794 CVS Various Various PA Various 4,900,000 4,887,662 34,563.99
Portfolio
62a 34794A CVS ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,500,000 2,493,705
▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ CVS 1330-1334 Main ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,250,000 1,246,852
▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ CVS 1802 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,150,000 1,147,104
Portfolio - ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,200,000 4,196,348 27,101.68
Square Trooper and
▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,192,000 4,192,000 21,012.40
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ Crystal ▇▇▇▇ ▇. ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,070,000 4,070,000 20,858.75
Springs Lake Highway
Shopping
Center
Stated
Original Remaining Original Remaining
Monthly Term to Term to Amorti- Amorti- Crossed
Debt Interest ARD Maturity Maturity Maturity zation zation With Prepayment
Service Mortgage Accrual Loan Date or ARD or ARD Term Term Other Crossed Provisions
ID After IO Rate Basis (Y/N) or ARD (mos.) (mos.) (mos.) (mos.) Loans Loan ID (# of payments)
-- ------- ---- ----- ----- ------ ------ ------ ------ ------ ----- ------- ---------------
1 7.0600% Actual/360 No 7/1/2009 84 81 300 297 LO(27)/▇▇▇▇▇-
▇▇▇▇▇(56)/Open(1)
4 6.7500% Actual/360 No 8/1/2007 60 58 360 358 LO(26)/▇▇▇▇▇-
▇▇▇▇▇(33)/Open(1)
8 6.8550% Actual/360 No 8/1/2007 60 58 360 358 LO(47)/▇▇▇▇▇-
▇▇▇▇▇(12)/Open(1)
9 6.9000% Actual/360 No 7/1/2012 120 117 360 357 LO(47)/▇▇▇▇▇-
▇▇▇▇▇(72)/Open(1)
9a
9b
9c
9d
9e
10 6.5200% Actual/360 No 10/1/2012 120 120 360 360 LO(47)/▇▇▇▇▇-
▇▇▇▇▇(72)/Open(1)
13 7.1250% Actual/360 No 5/1/2007 60 55 360 355 LO(29)/▇▇▇▇▇-
▇▇▇▇▇(30)/Open(1)
15 6.0300% 30/360 No 7/1/2007 60 57 0 0 LO(35)/Yield
Maintenance(23)/
Open(2)
19 7.1000% Actual/360 No 8/1/2007 60 58 360 358 LO(47)/▇▇▇▇▇-
▇▇▇▇▇(12)/Open(1)
20 6.5650% Actual/360 No 8/1/2012 120 118 360 358 LO(47)/▇▇▇▇▇-
▇▇▇▇▇(71)/Open(2)
27 6.9000% Actual/360 No 10/1/2012 120 120 300 300 LO(35)/▇▇▇▇▇-
▇▇▇▇▇(84)/Open(1)
28 6.6600% Actual/360 No 9/1/2012 120 119 360 359 LO(25)/▇▇▇▇▇-
▇▇▇▇▇(93)/Open(2)
29 7.1000% Actual/360 No 8/1/2012 120 118 360 358 LO(47)/▇▇▇▇▇-
▇▇▇▇▇(71)/Open(2)
37 44,725.48 5.9500% Actual/360 No 10/1/2009 84 84 0 0 LO(47)/▇▇▇▇▇-
▇▇▇▇▇(36)/Open(1)
38 7.1250% Actual/360 No 7/1/2012 120 117 360 357 LO(47)/▇▇▇▇▇-
▇▇▇▇▇(71)/Open(2)
44 7.1486% Actual/360 No 2/1/2007 60 52 360 352 LO(24)/Yield
Maintenance(34)/
Open(2)
48 6.8000% Actual/360 No 8/1/2007 60 58 360 358 LO(26)/▇▇▇▇▇-
▇▇▇▇▇(33)/Open(1)
49 6.8700% Actual/360 No 8/1/2012 120 118 360 358 LO(47)/Yield
Maintenance(72)/
Open(1)
52 6.0800% 30/360 No 7/1/2007 60 57 0 0 LO(35)/Yield
Maintenance(23)/
Open(2)
58 7.0000% Actual/360 No 7/1/2012 120 117 360 357 LO(47)/▇▇▇▇▇-
▇▇▇▇▇(72)/Open(1)
60 7.2750% Actual/360 No 7/1/2007 60 57 300 297 LO(47)/▇▇▇▇▇-
▇▇▇▇▇(12)/Open(1)
62 7.5900% Actual/360 No 6/1/2012 120 116 360 356 LO(47)/▇▇▇▇▇-
▇▇▇▇▇(72)/Open(1)
62a
62b
62c
66 6.7000% Actual/360 No 9/1/2012 120 119 360 359 LO(47)/▇▇▇▇▇-
▇▇▇▇▇(72)/Open(1)
67 6.0150% 30/360 No 8/1/2009 84 82 0 0 LO(35)/Yield
Maintenance(47)/
Open(2)
69 6.1500% 30/360 No 8/1/2009 84 82 0 0 LO(35)/Yield
Maintenance(47)/
Open(2)
Mortgage Letter of Initial
Loan Administrative Due Grace Letter of Credit Guarantor/ Hospitality Master
ID Interest Seller Fee Rate Date Period Credit Description Recourse Property Servicer
-- -------- ------ -------- ---- ------ ------ ----------- ---------- -------- --------
1 Fee BSCMI 0.03330% 1 7 $3,000,000 Indemnity ▇▇▇▇▇ Fargo Bank, N.A.
Simple LOC
4 Fee BSCMI 0.03330% 1 5 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
8 Fee BSCMI 0.07330% 1 5 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
9 Fee BSCMI 0.03330% 1 5 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
9a Fee BSCMI ▇▇▇▇▇ Fargo Bank, N.A.
Simple
9b Fee BSCMI ▇▇▇▇▇ Fargo Bank, N.A.
Simple
9c Fee BSCMI ▇▇▇▇▇ Fargo Bank, N.A.
Simple
9d Fee BSCMI ▇▇▇▇▇ Fargo Bank, N.A.
Simple
9e Fee BSCMI ▇▇▇▇▇ Fargo Bank, N.A.
Simple
10 Fee BSCMI 0.07330% 1 10 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
13 Fee Open BSCMI 0.03330% 1 5 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
15 Fee BSCMI 0.03330% 1 5 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
19 Fee BSCMI 0.03330% 1 5 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
20 Fee BSCMI 0.05330% 1 5 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
27 Fee BSCMI 0.03330% 1 5 ▇▇▇▇▇ Fargo Bank, N.A.
Simple/
Leasehold
28 Fee BSCMI 0.03330% 1 5 650,964.50 LOC for 6 months ▇▇▇▇▇ Fargo Bank, N.A.
Simple (LOC) rent
29 Fee BSCMI 0.03330% 1 5 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
37 Fee BSCMI 0.03330% 1 5 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
38 Fee BSCMI 0.03330% 1 5 ▇▇▇▇▇ Fargo Bank, N.A.
Simple/
Leasehold
44 Fee BSFI 0.03330% 1 0 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
48 Fee BSCMI 0.07330% 1 5 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
49 Fee BSCMI 0.03330% 1 7 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
52 Fee BSCMI 0.03330% 1 5 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
58 Fee Open BSCMI 0.03330% 1 5 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
60 Fee BSCMI 0.03330% 1 5 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
62 Fee BSCMI 0.03330% 1 5 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
62a Fee BSCMI ▇▇▇▇▇ Fargo Bank, N.A.
Simple
62b Fee BSCMI ▇▇▇▇▇ Fargo Bank, N.A.
Simple
62c Fee BSCMI ▇▇▇▇▇ Fargo Bank, N.A.
Simple
66 Fee BSCMI 0.07330% 1 5 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
67 Fee BSCMI 0.03330% 1 5 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
69 Fee BSCMI 0.03330% 1 5 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
S-I-B-1
Seller Cut-Off Monthly
Loan Property Original Date Debt
ID Number Name Address City State Zip Code Balance Balance Service
-- ------ ---- ------- ---- ----- -------- ------- ------- -------
75 35427 Abbey House ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,700,000 3,694,376 24,121.23
83 35082 Eckerd Drug Various Various SC Various 3,082,000 3,082,000 16,180.50
▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Drug ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,541,600 1,541,600
- ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Drug ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,540,400 1,540,400
- Greenville
105 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,175,000 2,171,733 14,251.89
▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 8030 & ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,150,000 2,143,645 15,336.06
Shopping Street
Center
111 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,075,000 2,070,047 14,336.41
Duplexes 42 at ▇▇▇▇▇ Drive
Stated
Original Remaining Original Remaining
Monthly Term to Term to Amorti- Amorti- Crossed
Debt Interest ARD Maturity Maturity Maturity zation zation With Prepayment
Service Mortgage Accrual Loan Date or ARD or ARD Term Term Other Crossed Provisions
ID After IO Rate Basis (Y/N) or ARD (mos.) (mos.) (mos.) (mos.) Loans Loan ID (# of payments)
-- -------- ---- ----- ----- ------ ------ ------ ------ ------ ----- ------- ---------------
75 6.8000% Actual/360 No 8/1/2007 60 58 360 358 LO(26)/▇▇▇▇▇-
▇▇▇▇▇(33)/Open(1)
83 6.3000% 30/360 No 8/1/2009 84 82 0 0 LO(35)/Yield
Maintenance(47)/
83a Open(2)
83b
105 6.8500% Actual/360 No 8/1/2012 120 118 360 358 LO(47)/▇▇▇▇▇-
▇▇▇▇▇(72)/Open(1)
106 7.7050% Actual/360 No 5/1/2012 120 115 360 355 LO(47)/▇▇▇▇▇-
▇▇▇▇▇(72)/Open(1)
111 6.7500% Actual/360 No 8/1/2012 120 118 300 298 LO(47)/▇▇▇▇▇-
▇▇▇▇▇(72)/Open(1)
Mortgage Letter of Initial
Loan Administrative Due Grace Letter of Credit Guarantor/ Hospitality Master
ID Interest Seller Fee Rate Date Period Credit Description Recourse Property Servicer
-- -------- ------ -------- ---- ------ ------ ------------ ---------- -------- --------
75 Fee BSCMI 0.07330% 1 5 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
83 Fee BSCMI 0.03330% 1 5 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
83a Fee BSCMI ▇▇▇▇▇ Fargo Bank, N.A.
Simple
83b Fee BSCMI ▇▇▇▇▇ Fargo Bank, N.A.
Simple
105 Fee BSCMI 0.03330% 1 5 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
106 Fee BSCMI 0.03330% 1 5 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
111 Fee BSCMI 0.03330% 1 5 ▇▇▇▇▇ Fargo Bank, N.A.
Simple
S-I-B-2
SCHEDULE I-C
SCHEDULE OF BSFI POOLED MORTGAGE LOANS
[See Schedule I-B]
S-I-C-1
SCHEDULE 1-D
SCHEDULE OF WFB POOLED MORTGAGE LOANS
Cut-Off Monthly
Seller Loan Original Date Debt
ID Number Property Name Address City State Zip Code Balance Balance Service
------ ----------- ----------------- ----------------- ------------ --------- -------- ---------- -------------- -----------
25 310900865 Los Vallecitos ▇▇▇ - ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 10,500,000 10,490,781 67,406.31
Business Center Vallecitos
Boulevard and 125
- 145 Vallecitos
De Oro
56 310900794 Corvallis ▇▇▇▇ - ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,300,000 5,283,980 34,728.74
Apartment Rolling Green Dr.
Portfolio
57 310900694 Gettysburg ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,300,000 5,242,577 41,665.43
Shopping Center Gettysburg Ave.
and ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇
59 310900809 Ardentech Court ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,000,000 4,984,127 36,140.35
Court
65 310900763 Main Street 1150-1190 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,300,000 4,296,113 27,178.93
Shopping Center Main Street
73 310900798 ▇▇▇▇▇▇▇ West ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,800,000 3,791,673 24,773.16
Apartments Avenue
85 310900829 Hathaway Building ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,000,000 2,993,158 21,203.38
Ave.
86 310900775 ▇▇▇▇ Plaza-Encino 17547 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,000,000 2,981,793 22,581.14
Boulevard
87 310900819 Bryman ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,000,000 2,978,142 23,385.19
Avenue
91 310900778 Cambridge Square 3901-3953 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,820,000 2,804,647 20,292.40
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇ 310900823 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 14420-14490 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,750,000 2,743,729 19,436.43
Headquarters Catalina Street
94 310900667 Burgundy House ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,756,000 2,737,216 19,633.82
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,750,000 2,732,306 20,143.72
99 310900791 High Voltage ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,350,000 2,344,893 17,001.11
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,300,000 2,291,672 16,525.19
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ 310900685 Heritage ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,230,000 2,214,801 15,886.58
Apartments
104 310900769 West Walnut ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,190,000 2,182,070 15,734.85
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ 310900786 Sunset Village ▇▇▇▇-▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,150,000 2,139,897 16,522.90
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇.
▇▇▇ 310900688 Tanglewood ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,140,000 2,125,414 15,245.42
Apartments - Armona Road
Lemoore
109 310900796 Chaparral Plaza 2608 & ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,125,000 2,114,770 16,162.51
Prairie Road
114 310900663 Golden State 4169-4239 ▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,975,000 1,962,054 14,339.12
Business Park Golden State
Boulevard, 4186
▇. ▇▇▇▇▇ and ▇▇▇▇
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
115 310900837 PETsMART, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,800,000 1,793,641 14,226.77
Dallas, TX Road
117 310900815 Brentwood House ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,650,000 1,647,201 11,820.80
Shopping Center
118 310900814 Fairground 5040 Fairground ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,650,000 1,642,633 11,820.22
Village Avenue
119 310900750 Elsinore/Staples ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,650,000 1,640,400 12,658.55
Store
120 310900806 Puerto Vista ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ 1,365,000 1,360,624 9,822.39
Mobile Estates Drive
121 310900816 Hickory Hollow ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,250,000 1,247,879 8,955.15
Shopping Center Hollow Parkway
122 310900818 Commercenter 1820-1840 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,200,000 1,193,962 9,667.12
Business Park Commercenter
Circle
123 310900828 San ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,100,000 1,098,631 7,739.52
Business Center Boulevard
124 310900822 Desert Sage ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,100,000 1,097,042 7,563.72
Apartments ▇▇▇▇▇▇▇▇▇▇ Drive
125 310900693 Garfield Avenue ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,000,000 994,862 7,389.91
Avenue
Monthly Stated
Debt Original Remaining Original
Service Interest ARD Maturity Term to Term to Amortization Remaining Crossed
After Mortgage Accrual Loan Date Maturity Maturity Term Amortization With Crossed
IO Rate Basis (Y/N) or ARD or ARD (mos.) or ARD (mos.) (mos.) Term (mos.) Other Loans Loan ID
------- -------- --------- ----- ------ ------------- ------------- ------------- -------------- ------------ --------
6.6500% Actual/360 No 9/1/2012 120 119 360 359
6.8500% Actual/360 No 6/1/2012 120 116 360 356
7.1800% Actual/360 No 4/1/2012 120 114 240 234
7.2500% Actual/360 No 7/1/2012 120 117 300 297
6.5000% Actual/360 No 9/1/2012 120 119 360 359
6.8000% Actual/360 No 7/1/2012 120 117 360 357
7.0000% Actual/360 No 8/1/2012 120 118 300 298
7.7100% Actual/360 No 4/1/2012 120 114 300 294
7.0700% Actual/360 No 6/1/2012 120 116 240 236
7.2000% Actual/360 No 5/1/2012 120 115 300 295
7.0000% Actual/360 No 8/1/2012 120 118 300 298
7.0880% Actual/360 No 4/1/2012 120 114 300 294
7.4000% Actual/360 No 4/1/2012 120 114 300 294
7.2600% Actual/360 No 8/1/2012 120 118 300 298
7.7800% Actual/360 No 4/1/2007 60 54 360 354
7.0880% Actual/360 No 4/1/2012 120 114 300 294
7.7800% Actual/360 No 4/1/2007 60 54 360 354
7.9500% Actual/360 No 5/1/2012 120 115 300 295
7.0880% Actual/360 No 4/1/2012 120 114 300 294
7.8300% Actual/360 No 5/1/2007 60 55 300 295
7.3000% Actual/360 No 4/1/2012 120 114 300 294
7.2500% Actual/360 No 8/1/2012 120 118 240 238
7.7500% Actual/360 No 7/1/2012 120 117 360 357
7.1500% Actual/360 No 6/1/2012 120 116 300 296
7.9300% Actual/360 No 4/1/2012 120 114 300 294
7.2000% Actual/360 No 7/1/2012 120 117 300 297
7.7500% Actual/360 No 7/1/2012 120 117 360 357
7.5000% Actual/360 No 7/1/2012 120 117 240 237
6.9500% Actual/360 No 9/1/2012 120 119 300 299
7.3300% Actual/360 No 6/1/2012 120 116 360 356
7.5000% Actual/360 No 5/1/2012 120 115 300 295
Letter
of Guaran-
Prepayment Mortgage Letter Credit tor/ Hospi- Initial
Provisions Loan Administrative Due Grace of Descri Re- tality Master
(# of payments) Interest Seller Fee Rate Date Period Credit ption course Property Servicer
--------------------- ------------ ----------- -------------- ------ ------ ------ -------- -------- --------- ------------
LO(35)/Defeasance(81) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (4) Bank, N.A.
LO(35)/Defeasance(81) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (4) Bank, N.A.
LO(35)/Defeasance(78) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (7) Bank, N.A.
LO(36)/Flex(77)/Open Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
(7) Bank, N.A.
LO(35)/Defeasance(81) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (4) Bank, N.A.
LO(35)/Defeasance(81) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (4) Bank, N.A.
LO(35)/Defeasance(81) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (4) Bank, N.A.
LO(36)/Defeasance(80) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (4) Bank, N.A.
LO(35)/Defeasance(81) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (4) Bank, N.A.
LO(35)/Defeasance(81) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (4) Bank, N.A.
LO(35)/Defeasance(81) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (4) Bank, N.A.
LO(35)/Defeasance(78) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (7) Bank, N.A.
LO(36)/Defeasance(80) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (4) Bank, N.A.
LO(35)/Defeasance(81) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (4) Bank, N.A.
LO(35)/Defeasance(21) Fee Simple WFB 0.03330% 1 5 Springing ▇▇▇▇▇ Fargo
/Open (4) Recourse Bank, N.A.
LO(35)/Defeasance(78) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (7) Bank, N.A.
LO(35)/Defeasance(21) Fee Simple WFB 0.03330% 1 5 Springing ▇▇▇▇▇ Fargo
/Open (4) Recourse Bank, N.A.
LO(35)/Flex(81)/Open Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
(4) Bank, N.A.
LO(35)/Defeasance(78) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (7) Bank, N.A.
LO(35)/Defeasance(21) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (4) Bank, N.A.
LO(35)/Defeasance(81) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (4) Bank, N.A.
LO(35)/Defeasance(81) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (4) Bank, N.A.
LO(35)/Defeasance(81) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (4) Bank, N.A.
LO(35)/Defeasance(81) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (4) Bank, N.A.
LO(35)/Defeasance(81) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (4) Bank, N.A.
LO(35)/Defeasance(81) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (4) Bank, N.A.
LO(35)/Defeasance(81) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (4) Bank, N.A.
LO(36)/Defeasance(80) Fee Simple WFB 0.03330% 1 5 Yes - Full ▇▇▇▇▇ Fargo
/Open (4) Bank, N.A.
LO(35)/Flex(81)/Open Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
(4) Bank, N.A.
LO(35)/Defeasance(81) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (4) Bank, N.A.
LO(35)/Defeasance(81) Fee Simple WFB 0.03330% 1 5 ▇▇▇▇▇ Fargo
/Open (4) Bank, N.A.
S-I-D-1
SCHEDULE II
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
(UNDER SECTION 2.02(a))
[There were no exceptions noted.]
S-II-1
SCHEDULE III
SCHEDULE OF DESIGNATED SUB-SERVICERS
Carey, Kramer, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Capital
Pacific Southwest Administrative Services, LLC
S-III-1
SCHEDULE IV
REFERENCE RATES
INTEREST ACCRUAL PERIOD(1) REFERENCE RATE INTEREST ACCRUAL PERIOD(1) REFERENCE RATE
October 2002 7.03959% October 2006 7.03039%
November 2002 6.84006% November 2006 6.83056%
December 2002 6.83996% December 2006 6.83045%
January 2003 6.83986% January 2007 6.82406%
February 2003 6.84023% February 2007 6.82670%
March 2003 7.03903% March 2007 7.02058%
April 2003 6.83955% April 2007 6.82152%
May 2003 7.03882% May 2007 7.01580%
June 2003 6.83935% June 2007 6.81738%
July 2003 7.03860% July 2007 7.03754%
August 2003 7.03849% August 2007 7.04063%
September 2003 6.83905% September 2007 6.83991%
October 2003 7.03827% October 2007 7.04039%
November 2003 6.83884% November 2007 6.83969%
December 2003 7.03803% December 2007 7.04016%
January 2004 6.83862% January 2008 6.83948%
February 2004 6.83869% February 2008 6.83964%
March 2004 7.03767% March 2008 7.03980%
April 2004 6.83829% April 2008 6.83915%
May 2004 7.03743% May 2008 7.03955%
June 2004 6.83806% June 2008 6.83893%
July 2004 7.03719% July 2008 7.03930%
August 2004 7.03707% August 2008 7.03918%
September 2004 6.83773% September 2008 6.83859%
October 2004 7.03685% October 2008 7.03893%
November 2004 6.83755% November 2008 6.83835%
December 2004 6.83745% December 2008 6.83823%
January 2005 6.83737% January 2009 6.83811%
February 2005 6.83786% February 2009 6.83887%
March 2005 7.03632% March 2009 7.03151%
April 2005 6.83708% April 2009 6.83026%
May 2005 7.03611% May 2009 7.05296%
June 2005 6.83689% June 2009 6.84675%
July 2005 7.03590% July 2009 7.03699%
August 2005 7.03579% August 2009 7.05436%
September 2005 6.83660% September 2009 6.82889%
October 2005 7.03557% October 2009 7.05109%
November 2005 6.83640% November 2009 6.84020%
December 2005 6.83629% December 2009 6.84013%
January 2006 6.83620% January 2010 6.84007%
S-IV-1
February 2006 6.83673% February 2010 6.84098%
March 2006 7.03498% March 2010 7.05072%
April 2006 6.83587% April 2010 6.83987%
May 2006 7.03475% May 2010 7.02678%
June 2006 6.83109% June 2010 6.81157%
July 2006 7.03074% July 2010 7.02662%
August 2006 7.03063% August 2010 7.02655%
September 2006 6.83078% September 2010 6.81135%
(1) Each interest accrual period relates to the distribution date in the
immediately following calendar month. For example, the October 2002
interest accrual period relates to the November 2002 distribution date.
S-IV-2
SCHEDULE V
BORROWER THIRD-PARTY BENEFICIARIES
(UNDER SECTION 2.03)
The respective borrowers under the Mortgage Loans identified on the
Pooled Mortgage Loan Schedule by seller loan numbers 6104544 and 6104545
(without regard to any additional alphabetical designation).
S-V-1