================================================================================
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION,
as Depositor,
PRUDENTIAL ASSET RESOURCES, INC.,
as a Master Servicer,
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as a Master Servicer,
ARCAP SERVICING, INC.,
as Special Servicer,
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.,
as Certificate Administrator and as Tax Administrator,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee,
ABN AMRO BANK N.V.,
as Fiscal Agent
and
Prudential MORTGAGE CAPITAL FUNDING, LLC,
as Ballston Common B-Note Holder and as Renaissance
B-Note Holder
---------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2003
---------------------------------
$960,034,371
Commercial Mortgage Pass-Through Certificates
Series 2003-PWR1
================================================================================
TABLE OF CONTENTS
---------------
SECTION PAGE
------- ----
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
SECTION 1.01. Defined Terms....................................................................................7
SECTION 1.02. General Interpretive Principles.................................................................76
SECTION 1.03. Certain Calculations in Respect of the Mortgage Pool............................................77
SECTION 1.04. Cross-Collateralized Mortgage Loans.............................................................79
SECTION 1.05. Incorporation of Preliminary Statement..........................................................79
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.............................................................80
SECTION 2.02. Acceptance of Mortgage Assets by Trustee........................................................84
SECTION 2.03. Certain Repurchases and Substitutions of Pooled Mortgage Loans by the Pooled
Mortgage Loan Sellers.........................................................................86
SECTION 2.04. Representations and Warranties of the Depositor.................................................92
SECTION 2.05. Representations and Warranties of PAR as a Master Servicer......................................93
SECTION 2.06. Representations and Warranties of WFB as a Master Servicer......................................95
SECTION 2.07. Representations and Warranties of the Special Servicer..........................................96
SECTION 2.08. Representations and Warranties of the Certificate Administrator.................................98
SECTION 2.09. Representations and Warranties of the Tax Administrator.........................................99
SECTION 2.10. Representations, Warranties and Covenants of the Trustee.......................................100
SECTION 2.11. Representations and Warranties of the Fiscal Agent.............................................102
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.........................................103
SECTION 2.13. Conveyance of the REMIC I Regular Interests; Acceptance of the REMIC I Regular
Interests by Trustee.........................................................................106
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.....................................106
SECTION 2.15. Conveyance of the REMIC II Regular Interests; Acceptance of the REMIC II Regular
Interests by Trustee.........................................................................108
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....................................................................................108
-i-
SECTION PAGE
------- ----
SECTION 2.17. Acceptance of Grantor Trusts; Issuance of the Class V and Class R Certificates.................116
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. General Provisions.............................................................................118
SECTION 3.02. Collection of Mortgage Loan Payments...........................................................122
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing Accounts; Reserve
Accounts.....................................................................................124
SECTION 3.04. Collection Accounts, Distribution Account, Interest Reserve Account, Excess
Liquidation Proceeds Account and the B-Note Accounts.........................................127
SECTION 3.05. Permitted Withdrawals From the Collection Accounts, the Distribution Account,
the Interest Reserve Account, the Excess Liquidation Proceeds Account and the
B-Note Accounts..............................................................................134
SECTION 3.06. Investment of Funds in the Accounts............................................................146
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage..................148
SECTION 3.08. Enforcement of Alienation Clauses..............................................................152
SECTION 3.09. Realization Upon Defaulted Serviced Mortgage Loans.............................................157
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files................................................161
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.....................162
SECTION 3.12. Property Inspections; Collection of Financial Statements.......................................171
SECTION 3.13. Annual Statement as to Compliance..............................................................172
SECTION 3.14. Reports by Independent Public Accountants......................................................173
SECTION 3.15. Access to Information..........................................................................174
SECTION 3.16. Title to Administered REO Property; REO Account................................................175
SECTION 3.17. Management of Administered REO Property........................................................177
SECTION 3.18. Fair Value Option; Sale of Administered REO Properties; Sale of the 1290 Avenue
of the Americas Pooled Mortgage Loan.........................................................180
SECTION 3.19. Additional Obligations of Master Servicers and the Special Servicer............................186
SECTION 3.20. Modifications, Waivers, Amendments and Consents................................................190
SECTION 3.21. Transfer of Servicing Between Applicable Master Servicer and the Special
Servicer; Record Keeping.....................................................................196
SECTION 3.22. Sub-Servicing Agreements.......................................................................197
SECTION 3.23. Controlling Class Representative...............................................................200
SECTION 3.24. Certain Rights and Powers of the Controlling Class Representative..............................202
SECTION 3.25. Replacement of Special Servicer................................................................207
SECTION 3.26. Application of Default Charges.................................................................208
SECTION 3.27. Certain Matters Regarding the Ballston Common B-Note Holder....................................208
-ii-
SECTION PAGE
------- ----
SECTION 3.28. Certain Rights and Powers of the Ballston Common B-Note Holder.................................210
SECTION 3.29. Certain Matters Regarding the Renaissance B-Note Holder........................................213
SECTION 3.30. Certain Rights and Powers of the Renaissance B-Note Holder.....................................214
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions..................................................................................219
SECTION 4.02. Certificate Administrator Reports; Servicer Reporting..........................................230
SECTION 4.03. P&I Advances...................................................................................242
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund Expenses...............................246
SECTION 4.05. Calculations...................................................................................247
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates...............................................................................248
SECTION 5.02. Registration of Transfer and Exchange of Certificates..........................................248
SECTION 5.03. Book-Entry Certificates........................................................................256
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates..............................................258
SECTION 5.05. Persons Deemed Owners..........................................................................258
SECTION 5.06. Certification by Certificate Owners............................................................258
SECTION 5.07. Appointment of Authenticating Agents...........................................................259
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Master Servicers and the Special Servicer......................260
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor, a Master Servicer or the
Special Servicer.............................................................................260
SECTION 6.03. Limitation on Liability of the Depositor, the Master Servicers and the Special
Servicer.....................................................................................260
SECTION 6.04. Resignation of Master Servicers and Special Servicer...........................................262
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the Master Servicers and
the Special Servicer.........................................................................263
SECTION 6.06. Master Servicers and Special Servicer May Own Certificates.....................................263
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default..............................................................................265
-iii-
SECTION PAGE
------- ----
SECTION 7.02. Trustee to Act; Appointment of Successor.......................................................269
SECTION 7.03. Notification to Certificateholders.............................................................270
SECTION 7.04. Waiver of Events of Default....................................................................271
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default...........................................271
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................................................................................272
SECTION 8.02. Certain Matters Affecting the Trustee, the Certificate Administrator and the Tax
Administrator................................................................................274
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...............................................................................276
SECTION 8.04. Trustee, Fiscal Agent, Certificate Administrator and Tax Administrator May Own
Certificates.................................................................................276
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........................................277
SECTION 8.06. Eligibility Requirements for Trustee, Certificate Administrator and Tax
Administrator................................................................................278
SECTION 8.07. Resignation and Removal of Trustee, Certificate Administrator and Tax
Administrator................................................................................279
SECTION 8.08. Successor Trustee, Certificate Administrator and Tax Administrator.............................281
SECTION 8.09. Merger or Consolidation of Trustee, Certificate Administrator or Tax
Administrator................................................................................281
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee..................................................282
SECTION 8.11. Appointment of Custodians......................................................................283
SECTION 8.12. Access to Certain Information..................................................................283
SECTION 8.13. Appointment of Fiscal Agent....................................................................285
SECTION 8.14. Advance Security Arrangement...................................................................286
SECTION 8.15. Exchange Act Reporting.........................................................................287
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Pooled Mortgage Loans........................290
SECTION 9.02. Additional Termination Requirements............................................................293
SECTION 9.03. 1290 Avenue of the Americas REO Property.......................................................294
-iv-
SECTION PAGE
------- ----
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. Tax Administration.............................................................................295
SECTION 10.02. Depositor, Master Servicers, Special Servicer and Fiscal Agent to Cooperate with
Tax Administrator............................................................................298
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment......................................................................................299
SECTION 11.02. Recordation of Agreement; Counterparts.........................................................301
SECTION 11.03. Limitation on Rights of Certificateholders.....................................................301
SECTION 11.04. Governing Law..................................................................................302
SECTION 11.05. Notices........................................................................................302
SECTION 11.06. Severability of Provisions.....................................................................303
SECTION 11.07. Successors and Assigns; Beneficiaries..........................................................303
SECTION 11.08. Article and Section Headings...................................................................303
SECTION 11.09. Notices to and from the Rating Agencies and the Depositor......................................303
SECTION 11.10. Notices to Controlling Class Representative....................................................304
SECTION 11.11. Complete Agreement.............................................................................305
-v-
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 [RESERVED]
EXHIBIT F-1 Form of Transferor Certificate for Transfers of Non-Registered Certificates Held in
Physical Form
EXHIBIT F-2A Form I of Transferee Certificate for Transfers of Non-Registered Certificates Held in
Physical Form
EXHIBIT F-2B Form II of Transferee Certificate for Transfers of Non-Registered Certificates Held in
Physical Form
EXHIBIT F-2C Form of Transferee Certificate for Certain Transfers of Interests in Rule 144A Global
Certificates
EXHIBIT F-2D Form of Transferee Certificate for Certain Transfers of Interests in Regulation S
Global Certificates
EXHIBIT F-3A Form of Transferor Certificate for Transfer of the Excess Servicing Fee Rights
EXHIBIT F-3B Form of Transferee Certificate for Transfer of the Excess Servicing Fee Rights
EXHIBIT G-1 Form of Transferee Certificate in Connection with ERISA (Non-Registered Certificates
and Non-Investment Grade Certificates Held in Physical Form)
EXHIBIT G-2 Form of Transferee Certificate in Connection with ERISA (Non-Registered Certificates
Held in Book-Entry Form)
EXHIBIT H-1 Form of Transfer Affidavit and Agreement for Transfers of Class R Certificates
EXHIBIT H-2 Form of Transferor Certificate for Transfers of Class R Certificates
EXHIBIT I-1 Form of Notice and Acknowledgment Concerning Replacement of the Special Servicer
EXHIBIT I-2 Form of Acknowledgment of a Proposed Special Servicer
EXHIBIT J Form of UCC-1 Financing Statement
EXHIBIT K-1 Information Request from Certificateholder or Certificate Owner
EXHIBIT K-2 Information Request from Prospective Investor
EXHIBIT L Form of Power of Attorney by Trustee
EXHIBIT M-1 Form of Ballston Common Co-Lender Agreement
EXHIBIT M-2 Form of Renaissance Co-Lender Agreement
EXHIBIT N Form of Final Certification of Trustee
EXHIBIT O-1 Form of Ballston Common B-Note Assignment and Assumption Agreement
EXHIBIT O-2 Form of Renaissance B-Note Assignment and Assumption Agreement
EXHIBIT P Form of Defeasance Certification
-vi-
SCHEDULES
SCHEDULE I-A Schedule of PMCF Pooled Mortgage Loans
SCHEDULE I-B Schedule of BSCMI Pooled Mortgage Loans
SCHEDULE I-C Schedule of WFB Pooled Mortgage Loans
SCHEDULE I-D Schedule of CIBC 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)
-vii-
This Pooling and Servicing Agreement (this "Agreement"), is
dated and effective as of March 1, 2003, among PRUDENTIAL SECURITIES SECURED
FINANCING CORPORATION, as Depositor, PRUDENTIAL ASSET RESOURCES, INC., as a
Master Servicer, ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as a Master Servicer,
ARCAP SERVICING, INC., as Special Servicer, ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as
Certificate Administrator and as Tax Administrator, LASALLE BANK NATIONAL
ASSOCIATION, as Trustee, ABN AMRO BANK N.V., as Fiscal Agent and Prudential
MORTGAGE CAPITAL FUNDING, LLC, as Ballston Common B-Note Holder and as
Renaissance 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. The Latest Possible Maturity Date
for each REMIC I Regular Interest is the Rated Final Distribution Date. None of
the REMIC I Regular Interests will be certificated.
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.
REMIC II Initial Uncertificated
Designation Remittance Rate Principal Balance
----------- --------------- -----------------
A-1-1 Variable (1) $ 55,634,000
A-1-2 Variable (1) $ 46,049,000
A-1-3 Variable (1) $ 43,495,000
A-1-4 Variable (1) $ 62,768,000
A-1-5 Variable (1) $ 38,447,000
A-1-6 Variable (1) $ 22,591,000
A-2-1 Variable (1) $ 80,260,000
A-2-2 Variable (1) $ 31,156,000
A-2-3 Variable (1) $ 406,828,000
B Variable (1) $ 32,401,000
C-1 Variable (1) $ 4,480,000
C-2 Variable (1) $ 31,521,000
D-1 Variable (1) $ 7,983,000
D-2 Variable (1) $ 6,418,000
E-1 Variable (1) $ 4,640,000
E-2 Variable (1) $ 4,960,000
F-1 Variable (1) $ 971,000
F-2 Variable (1) $ 9,829,000
G Variable (1) $ 12,001,000
H-1 Variable (1) $ 13,751,000
H-2 Variable (1) $ 3,049,000
J-1 Variable (1) $ 3,576,000
J-2 Variable (1) $ 3,625,000
K Variable (1) $ 4,800,000
L Variable (1) $ 7,200,000
M Variable (1) $ 3,600,000
N Variable (1) $ 3,600,000
P Variable (1) $ 14,401,371
--------------------
(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.
-2-
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.
Class Initial Class
Designation Pass-Through Rate Principal Balance
----------- ----------------- -----------------
Class A-1 3.669% per annum $ 268,984,000
Class A-2 4.493% per annum $ 518,244,000
Class B 4.607% per annum $ 32,401,000
Class C 4.706% per annum $ 36,001,000
Class D 4.775% per annum $ 14,401,000
Class E Variable (1) $ 9,600,000
Class F Variable (1) $ 10,800,000
Class G Variable (1) $ 12,001,000
Class H 4.615% per annum $ 16,800,000
Class J 4.615% per annum $ 7,201,000
Class K 4.615% per annum $ 4,800,000
Class L 4.615% per annum $ 7,200,000
Class M 4.615% per annum $ 3,600,000
Class N 4.615% per annum $ 3,600,000
Class P 4.615% per annum $ 14,401,371
Class X-1 Variable (1) (2)
Class X-2 Variable (1) (3)
----------------------
(1) The respective Pass-Through Rates for the Class E, Class F, Class G, 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 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.
-3-
Designations of the REMIC III Components
The REMIC III Components of the Class X-1 Certificates are
hereby irrevocably designated ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇,
▇▇-▇-▇-▇, ▇▇-▇-▇-▇, X1-A-2-2, X-1-A-2-3, X1-B, X1-C-1, X1-C-2, X1-D-1, X1-D-2,
X1-E-1, X1-E-2, X1-F-1, X1-F-2, X1-G, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇,
▇▇-▇, ▇▇-▇, ▇▇-▇ and X1-P.
The REMIC III Components of the Class X-2 Certificates are
hereby irrevocably designated ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇,
▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇, ▇▇-▇-▇, X2-C-2, X2-D-1, X2-D-2, X2-E-1,
X2-E-2, X2-F-1, X2-F-2, X2-G, 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:
-4-
REMIC III REMIC III
REMIC II Class of Component of Class X-1 Component of Class
Regular Interest Certificates Certificates X-2 Certificates
---------------- ------------ ------------ ----------------
▇-▇-▇ ▇-▇ ▇▇-▇-▇-▇ Not Applicable
▇-▇-▇ ▇-▇ ▇▇-▇-▇-▇ ▇▇-▇-▇-▇
▇-▇-▇ ▇-▇ X1-A-1-3 X2-A-1-3
▇-▇-▇ ▇-▇ ▇▇-▇-▇-▇ ▇▇-▇-▇-▇
▇-▇-▇ ▇-▇ ▇▇-▇-▇-▇ ▇▇-▇-▇-▇
▇-▇-▇ ▇-▇ ▇▇-▇-▇-▇ ▇▇-▇-▇-▇
▇-▇-▇ ▇-▇ ▇▇-▇-▇-▇ ▇▇-▇-▇-▇
▇-▇-▇ ▇-▇ ▇▇-▇-▇-▇ ▇▇-▇-▇-▇
▇-▇-▇ ▇-▇ ▇▇-▇-▇-▇ ▇▇-▇-▇-▇
▇ B X1-B X2-B
▇-▇ ▇ ▇▇-▇-▇ ▇▇-▇-▇
▇-▇ ▇ ▇▇-▇-▇ ▇▇-▇-▇
▇-▇ ▇ ▇▇-▇-▇ ▇▇-▇-▇
▇-▇ D X1-D-2 X2-D-2
▇-▇ ▇ ▇▇-▇-▇ ▇▇-▇-▇
▇-▇ ▇ ▇▇-▇-▇ ▇▇-▇-▇
F-1 F X1-F-1 X2-F-1
F-2 F X1-F-2 ▇▇-▇-▇
▇ ▇ ▇▇-▇ ▇▇-▇
▇-▇ ▇ 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 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 $960,034,371, 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 $960,034,371.
-5-
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, the Special Servicer, the Certificate
Administrator, the Tax Administrator, the Trustee, the Fiscal Agent, the
Ballston Common B-Note Holder and the Renaissance B-Note Holder hereby agree, in
each case, as follows:
-6-
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.
"1290 Avenue of the Americas Certificate-Level Collection
Period": With respect to any Distribution Date, the period ending at 11:00 a.m.,
New York City time, on the related Master Servicer Remittance Date and beginning
immediately following the end of the prior 1290 Avenue of the Americas
Certificate-Level Collection Period (or, in the case of the initial 1290 Avenue
of the Americas Certificate-Level Collection Period, beginning as of the Closing
Date); provided that, if the Balloon Payment with respect to the 1290 Avenue of
the Americas Pooled Mortgage Loan or any related REO Property (or any voluntary
prepayment made in accordance with the related loan documents) is received by
the applicable Master Servicer after the end of a given Collection Period and
the applicable Master Servicer is thereby precluded from reporting such payment
in its CMSA Loan Periodic Update File delivered to the Servicer Report
Administrator pursuant to Section 4.02(c) for the related Distribution Date
and/or from remitting such payment on the Master Servicer Remittance Date to the
Certificate Administrator for deposit in the Distribution Account, such payment
will nevertheless be distributed to Certificateholders on the related
Distribution Date if the applicable Master Servicer (a) provides notice to the
Certificate Administrator and the Servicer Report Administrator no later than
2:00 p.m. (New York City time) two (2) Business Days prior to the related
Distribution Date reflecting the related Borrower's intention to make such
payment, and (b) either (i) remits such payment to the Certificate Administrator
on the Master Servicer Remittance Date, or (ii) provides notice to the
Certificate Administrator no later than 5:30 p.m. (New York City time) on the
related Master Servicer Remittance Date that such payment has been received by
the applicable Master Servicer and then remits such payment to the Certificate
Administrator by 10:00 a.m. (New York City time) on the related Distribution
Date with interest for the account of the Certificate Administrator on such
remittance at the Reimbursement Rate from and including such Master Servicer
Remittance Date to but excluding the related Distribution Date. If the timing
and notice requirements set forth in (a) and (b) above are not satisfied with
respect to any particular payment or other collection with respect to the 1290
Avenue of the Americas Pooled Mortgage Loan or any related REO Property that is
Received by the Trust in any particular 1290 Avenue of the Americas
Certificate-Level Collection Period, and such payment or other collection cannot
be distributed to Certificateholders on the related Distribution Date, then such
payment or other collection shall be deemed to have been Received by the Trust
on the first Business Day of the immediately following 1290 Avenue of the
Americas Certificate-Level Collection Period for purposes of all calculations
and reports hereunder.
-7-
"1290 Avenue of the Americas Intercreditor Agreement":
Individually and collectively, as applicable, (i) that certain intercreditor
agreement dated as of December 1, 2002, between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Mortgage Capital Inc. as initial note A holder and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Mortgage Capital Inc. as initial note B holder, (ii) that certain intercreditor
agreement dated as of January 24, 2003, among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Mortgage Capital Inc. as A1 noteholder, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Mortgage
Capital Inc. as A2 noteholder, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Mortgage Capital Inc.
as A3 noteholder, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Mortgage Capital Inc. as A4
noteholder and (iii) that certain letter agreement dated February 6, 2003 among
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Mortgage Capital Inc. as A2 noteholder, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Mortgage Capital Inc. as A3 noteholder, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ Mortgage Capital Inc. as A4 noteholder, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Capital I Inc. as depositor, WFB, ARCap SI, LaSalle and ABN AMRO.
"1290 Avenue of the Americas Loan-Level Collection Period":
With respect to any Distribution Date, the then most recently ended "Collection
Period" under the Series 2003-TOP9 PSA or comparable period under any successor
1290 Avenue of the Americas Servicing Agreement.
"1290 Avenue of the Americas Master Servicer": The master
servicer under the 1290 Avenue of the Americas Servicing Agreement.
"1290 Avenue of the Americas Mortgage Loans": Collectively,
the 1290 Avenue of the Americas Pooled Mortgage Loan and the 1290 Avenue of the
Americas Non-Pooled Loans.
"1290 Avenue of the Americas Mortgaged Property": The
Mortgaged Property identified on the Pooled Mortgage Loan Schedule as "1290
Avenue of the Americas".
"1290 Avenue of the Americas Non-Pooled Loans": Collectively,
the other mortgage loans, in the original principal amount of $360,000,000, that
are secured by the same Mortgage on the 1290 Avenue of the Americas Mortgaged
Property as the 1290 Avenue of the Americas Pooled Mortgage Loan. None of the
1290 Avenue of the Americas Non-Pooled Loans are "Mortgage Loans" or part of the
Trust Fund, any REMIC Pool or either Grantor Trust Pool.
"1290 Avenue of the Americas Pooled Mortgage Loan": The
Pooled Mortgage Loan secured by the 1290 Avenue of the Americas Mortgaged
Property.
"1290 Avenue of the Americas REO Pooled Mortgage Loan": The
REO Pooled Mortgage Loan that relates to any 1290 Avenue of the Americas REO
Property and has the terms of the 1290 Avenue of the Americas Pooled Mortgage
Loan.
"1290 Avenue of the Americas REO Property": The 1290 Avenue of
the Americas Mortgaged Property, if such Mortgaged Property becomes an "REO
Property" under the 1290 Avenue of the Americas Servicing Agreement.
"1290 Avenue of the Americas Servicing Agreement": The
separate agreement pursuant to which the 1290 Avenue of the Americas Mortgage
Loans are (or, if applicable, any 1290 Avenue of the Americas REO Property is)
serviced and administered, which agreement is, as of the Closing Date, the
Series 2003-TOP9 PSA.
-8-
"1290 Avenue of the Americas Special Servicer": The special
servicer under the 1290 Avenue of the Americas Servicing Agreement.
"ABN AMRO": ABN AMRO Bank N.V. or its successor in interest.
"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.
"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 and Reserve Funds) 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).
"Administered REO Property": Any REO Property other than any
1290 Avenue of the Americas REO Property.
-9-
"Administrative Cost Rate": With respect to the 1290 Avenue of
the Americas Pooled Mortgage Loan (or any successor REO Pooled Mortgage Loan
with respect thereto), a rate per annum equal to the sum of 0.03%, the Trustee
Fee Rate and the Servicer Report Administrator Fee Rate; and with respect to
each other Pooled Mortgage Loan (and any successor REO Pooled Mortgage Loan with
respect thereto), the rate per annum specified as the "Administrative Fee Rate"
on the Pooled Mortgage Loan Schedule, which, for each such other Pooled Mortgage
Loan (and any successor REO Pooled Mortgage Loan with respect thereto) 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.
"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, the tax on contributions under Section 860G(d) of the
Code and the tax on income from foreclosure property under Section 860G(c) of
the Code).
"Affected Loan(s)": As defined in Section 2.03(b).
"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.
"Annual Accountants' Report": As defined in Section 3.14.
"Annual Performance Certification": As defined in Section
3.13.
-10-
"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.
"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 Servicer 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
Special Servicer's option, either a limited appraisal and a summary report or an
internal valuation prepared by the Special Servicer) that (i) indicates the
"market value" of the subject property (within the meaning of 12 CFR ss.
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 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 Pooled 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
Post-ARD 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 and unpaid interest on such Advances
payable to) the applicable Master Servicer, the Special Servicer, the
Trustee and/or the Fiscal Agent with respect to such Required Appraisal
Loan, (v) any other outstanding Additional Trust Fund Expenses with
respect to such Required Appraisal Loan, and (vi) 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 the Special Servicer
for such items); over
-11-
(b) an amount equal to the sum of: (a) the excess, if
any, of (i) 90% of the Appraised Value of the related 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 the
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 or REO Property,
as the case may be, 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 or REO Property,
as the case may be, that would, in the Special Servicer's reasonable judgment,
materially affect the value of the related Mortgaged Property or REO Property,
as the case may be, 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 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 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.
For purposes of determining whether a Ballston Common Change
of Control Event has occurred, any Appraisal Reduction Amount with respect to
the Ballston Common Pooled Mortgage Loan will be calculated with respect to the
entire indebtedness under the Ballston Common Mortgage Loan Pair as if such
indebtedness were a single "Serviced Pooled Mortgage Loan". Any Appraisal
Reduction Amount with respect to the Ballston Common Pooled Mortgage Loan will
be calculated only with respect to the indebtedness under the Ballston Common
Pooled Mortgage Loan (and not with respect to the indebtedness under the
Ballston Common B-Note Mortgage Loan) for all other purposes under this
Agreement.
-12-
For purposes of determining whether a Renaissance Change of
Control Event has occurred, any Appraisal Reduction Amount with respect to the
Renaissance Pooled Mortgage Loan will be calculated with respect to the entire
indebtedness under the Renaissance Mortgage Loan Pair as if such indebtedness
were a single "Serviced Pooled Mortgage Loan". Any Appraisal Reduction Amount
with respect to the Renaissance Pooled Mortgage Loan will be calculated only
with respect to the indebtedness under the Renaissance Pooled Mortgage Loan (and
not with respect to the indebtedness under the Renaissance B-Note Mortgage Loan)
for all other purposes under this Agreement.
An Appraisal Reduction Amount with respect to any Pooled
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.
"Appraisal Trigger Event": As defined in Section 3.19(a).
"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 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.
"ARCap SI": ARCap Servicing, Inc. (formerly ARCap Special
Servicing, Inc.) or its successor in interest.
"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).
-13-
"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 Mortgage Loan(s), 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) the 1290 Avenue
of the Americas Pooled Mortgage Loan or any successor REO Pooled Mortgage Loan
with respect thereto, the related "Assumed Scheduled Payment" under the Series
2003-TOP9 PSA, (b) any other 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 the 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 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 (c)
any other REO Pooled Mortgage Loan, for any Due Date as of which the related REO
Property or any interest therein 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 (b) 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.
"Authenticating Agent": Any authenticating agent appointed
pursuant to Section 5.07 (or, in the absence of any such appointment, the
Certificate Administrator).
"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 hereunder 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 2004 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 (or, in the case of the 1290
Avenue of the Americas Pooled Mortgage Loan, following the end of the related
1290 Avenue of the Americas Certificate-Level Collection Period), (ii) any
payments of principal (including Principal Prepayments)
-14-
and interest, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds
Received by the Trust after the end of the related Collection Period (or,
insofar as such amounts relate to the 1290 Avenue of the Americas Pooled
Mortgage Loan or any related REO Property, after the end of the related 1290
Avenue of the Americas Certificate-Level 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 2004 or any
year thereafter or during the month of January of 2005 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 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.
"B-Note Account": Each of the Ballston Common B-Note Account
and the Renaissance B-Note Account.
"B-Note Holder": Each of the Ballston Common B-Note Holder and
the Renaissance B-Note Holder.
"B-Note Mortgage Loan": Each of the Ballston Common B-Note
Mortgage Loan and the Renaissance B-Note Mortgage Loan.
"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.
"Balloon Payment Interest Shortfall": With respect to the 1290
Avenue of the Americas Pooled Mortgage Loan and any Distribution Date on which
the related Balloon Payment (net of any portion thereof covered by prior P&I
Advances) is distributed under this Agreement to Certificateholders, the amount
of interest, to the extent not Received by the Trust, that would have accrued at
a rate per annum equal to the related Mortgage Rate (net of three basis points)
on the amount of the principal portion of such Balloon Payment during the period
from the date to which interest was paid by the related Borrower to, but not
including, the Due Date in the calendar month in which that Distribution Date
occurs.
"Ballston Common Assignment and Assumption Agreement": As
defined in Section 3.27(b).
"Ballston Common B-Note": The Mortgage Note for the Ballston
Common B-Note Mortgage Loan.
-15-
"Ballston Common B-Note Account": A segregated account or
accounts created and maintained by the Master Servicer in respect of the
Ballston Common Mortgage Loan Pair, pursuant to Section 3.04(e), in trust for
the Ballston Common B-Note Holder, which shall be entitled "Prudential Asset
Resources, Inc. [or the name of any successor Master Servicer in respect of the
Ballston Common Mortgage Loan Pair], as a Master Servicer, in trust for [name of
Ballston Common B-Note Holder]"; provided, however, that if, and for so long as,
the Ballston Common B-Note Holder and the Renaissance B-Note Holder are the same
Person or are Affiliates, then such account may at its/their option be for both
the Ballston Common B-Note Mortgage Loan and the Renaissance B-Note Mortgage
Loan (provided that deposits into and withdrawals from that joint account are
made in the same manner as provided herein for two separate accounts), and such
joint account shall be entitled "Prudential Asset Resources, Inc. [or the name
of any successor master servicer in respect to such loans], as a Master
Servicer, in trust for [name of Ballston Common B-Note Holder and Renaissance
B-Note Holder]."
"Ballston Common B-Note Holder": The holder of the Ballston
Common B-Note.
"Ballston Common B-Note Mortgage Loan": The Mortgage Loan, in
the original principal amount of $4,000,000.00 that is secured by the same
Mortgage on the Ballston Common Mortgaged Property as the Ballston Common Pooled
Mortgage Loan. The Ballston Common B-Note Mortgage Loan is not part of the Trust
Fund, any REMIC Pool or either Grantor Trust Pool.
"Ballston Common Borrower": The Borrower under the Ballston
Common Mortgage Loan Pair.
"Ballston Common Change of Control Event": As of any date of
determination, the event that has occurred by reason of either (a) the unpaid
principal amount of the Ballston Common B-Note Mortgage Loan, reduced by any
Appraisal Reduction Amount, Realized Losses attributable to the Ballston Common
Mortgage Loan Pair (and not otherwise reflected in the unpaid principal amount
of the Ballston Common B-Note Mortgage Loan) and outstanding Additional Trust
Fund Expenses for the Ballston Common Mortgage Loan Pair (calculated as if the
Ballston Common Mortgage Loan Pair was a single Pooled Mortgage Loan), being
less than 25% of the original unpaid principal amount of the Ballston Common
B-Note Mortgage Loan or (b) the Ballston Common B-Note Holder being the Borrower
or an Affiliate of the Borrower under the Ballston Common Mortgage Loan Pair.
"Ballston Common Co-Lender Agreement": As defined in Section
3.27(a).
"Ballston Common Controlling Party": One of the following
parties--
(a) if a Ballston Common Change of Control Event has
occurred and is continuing, the Controlling Class Representative; and
(b) in all other cases, the Ballston Common B-Note
Holder or its representative appointed in accordance with Section 18(d)
of the Ballston Common Co-Lender Agreement.
"Ballston Common Mortgage Loan Pair": The Ballston Common
Pooled Mortgage Loan and the Ballston Common B-Note Mortgage Loan, together.
-16-
"Ballston Common Mortgaged Property": The Mortgaged Property
identified on the Pooled Mortgage Loan Schedule as "Ballston Common Mall".
"Ballston Common Pooled Mortgage Loan": The Pooled Mortgage
Loan secured by the Ballston Common Mortgaged Property.
"Ballston Common Purchase Trigger Event": The occurrence of
any of the following events: (i) as of any date of determination up to and
including the maturity date of the Ballston Common Pooled Mortgage Loan, any
Monthly Payment becomes 90 days or more delinquent; and (ii) as of any date of
determination subsequent to the maturity date of the Ballston Common Pooled
Mortgage Loan, any event of default under the Ballston Common Mortgage Loan Pair
that results in the Ballston Common Mortgage Loan becoming a Specially Serviced
Mortgage Loan.
"Ballston Common REO Property": The Ballston Common
Mortgaged Property, if such Mortgaged Property becomes an REO Property
hereunder.
"Ballston Common Sub-Servicer": Any Sub-Servicer of the
Ballston Common Mortgage Loan Pair appointed by the applicable Master Servicer
in accordance with the terms hereof with the approval or at the direction of the
Ballston Common Controlling Party or, if different, the Ballston Common B-Note
Holder.
"Ballston Common Sub-Servicing Agreement": The Sub-Servicing
Agreement between the Ballston Common Sub-Servicer and the applicable Master
Servicer.
"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 February 27,
2003, relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Book-Entry Certificate": Any Certificate registered in the
name of the 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.
"BSCMI Pooled 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
-17-
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 March 7, 2003, between
BSCMI as seller and the Depositor as purchaser.
"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 Servicer 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 2003-PWR1
Commercial Mortgage Pass-Through Certificates, as executed by the Certificate
Administrator and authenticated and delivered hereunder by the Certificate
Registrar.
"Certificate Administrator": WFBM, in its capacity as
certificate administrator hereunder, or any successor certificate administrator
appointed as herein provided.
"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, the 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 3.25), 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 the Special Servicer in determining whether a Certificate is
registered in the name of an Affiliate of such
-18-
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 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).
"CIBC": CIBC Inc., or its successor in interest.
"CIBC Pooled Mortgage Loan": Any Pooled Mortgage Loan that is
either an Original CIBC Pooled Mortgage Loan or a Replacement Pooled Mortgage
Loan that was delivered under the CIBC Pooled Mortgage Loan Purchase Agreement
in substitution for an Original CIBC Pooled Mortgage Loan.
"CIBC Pooled Mortgage Loan Purchase Agreement": That certain
Mortgage Loan Purchase and Sale Agreement dated as of March 7, 2003, between
CIBC as seller and the Depositor as purchaser.
"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.
-19-
"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 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, 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).
"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.
-21-
"Clearstream": Clearstream Banking, societe anonyme or any
successor.
"Closing Date": March 20, 2003.
"CMSA": The Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, issuers, placement agents and
underwriters generally involved in the commercial mortgage loan securitization
industry, which is the principal such association or organization in the
commercial mortgage loan securitization industry and one of whose principal
purposes is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in one
of the preceding sentences of this definition does not exist, "CMSA" shall be
deemed to refer to such other association or organization as shall be reasonably
acceptable to the Master Servicers, the Certificate Administrator, Trustee, the
Special Servicer and the Controlling Class Representative.
"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-backed 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-backed 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-backed securities transactions generally and is reasonably
acceptable to each Master Servicer and the 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 the
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 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 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 Special Servicer (as the
-22-
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 Special Servicer (as the case
may be)), normalized. To the extent the information described above has been
provided to the applicable Master Servicer or the 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 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-backed securities transactions
generally and is reasonably acceptable to each Master Servicer and the Special
Servicer.
"CMSA Financial File": A report substantially in the form of,
and containing the information called for in, the downloadable form of the
"Financial File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed 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-backed securities transactions
generally and is reasonably acceptable to each Master Servicer and the 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-backed securities
transactions generally and is reasonably acceptable to each Master Servicer and
the 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
(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 (or, in the case of the 1290 Avenue of the Americas
Pooled Mortgage Loan or any successor REO Pooled Mortgage Loan with
respect thereto, the 1290 Avenue of the Americas Loan-Level Collection
Period) that
-23-
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.
Notwithstanding anything in this Agreement to the contrary, in
the event any of the electronic files listed in clause (a) of this definition or
any of the supplemental reports listed in clause (b) of this definition are
amended or changed in any material respect by the CMSA and placed on the CMSA
Website or otherwise recommended by the CMSA for commercial mortgage-backed
securities transactions generally, so long as such electronic files and such
supplemental reports are reasonably acceptable (as applicable) to each Master
Servicer and the Special Servicer, then same shall be used with respect to the
Collection Period (or, in the case of the 1290 Avenue of the Americas Pooled
Mortgage Loan or any successor REO Pooled Mortgage Loan with respect thereto,
the 1290 Avenue of the Americas Loan-Level Collection Period) that commences at
any time following the date that is nine (9) months following adoption of the
form thereof by the CMSA.
"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-backed securities
transactions generally and is reasonably acceptable to each Master Servicer, the
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-backed securities transactions generally and is reasonably
acceptable to each Master Servicer, the 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-backed securities transactions generally and
is reasonably acceptable to each Master Servicer and the Special Servicer and in
any event, shall present the computations made in accordance with the
methodology described in such form to "normalize" the full year net operating
income and debt service coverage numbers used in the other reports required by
this Agreement.
"CMSA 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
-24-
mortgage-backed securities transactions generally and is reasonably acceptable
to each Master Servicer and the 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-backed securities transactions generally and is reasonably
acceptable to the 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-backed securities
transactions generally and, insofar as such report requires the presentation of
information in 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, as amended, 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, on behalf of LaSalle Bank National
Association [or name of any successor Trustee], as Trustee, in trust for the
registered holders of Prudential Securities Secured Financing Corporation,
Commercial Mortgage Pass-Through Certificates, 2003-PWR1, Collection Account".
-25-
"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 or the Certificate
Administrator from its own funds pursuant to Section 3.19(c) to cover Prepayment
Interest Shortfalls incurred during the related Collection Period (or, in the
case of the 1290 Avenue of the Americas Pooled Mortgage Loan, to cover a
Prepayment Interest Shortfall or Balloon Payment Interest Shortfall relating to
such Distribution Date).
"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
or on behalf of the Trustee, a Master Servicer or the Special Servicer,
including (with respect to the 1290 Avenue of the Americas Pooled Mortgage Loan
or any related REO Property) by the 1290 Avenue of the Americas Master Servicer
or the 1290 Avenue of the Americas Special Servicer under the 1290 Avenue of the
Americas Servicing Agreement, 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 applied to the restoration of the related
Mortgaged Property or REO Property (or placed in a reserve account for that
purpose) or 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 with a "Class A"
designation.
"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
-26-
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, at ▇▇▇▇▇ Fargo
Center, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; Attn:
Prudential Securities Secured Financing Corporation, 2003-PWR1, and for all
other purposes, at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Administration, Prudential Securities Secured Financing
Corporation, 2003-PWR1; and (ii) in the case of the Trustee, at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Asset-Backed Securities
Trust Services Group-Prudential Securities Secured Financing Corporation,
2003-PWR1.
"Corrected Mortgage Loan": Any Serviced 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).
"Corrected Pooled Mortgage Loan": Any Serviced Pooled Mortgage
Loan that is a Corrected Mortgage Loan. Notwithstanding anything to the contrary
contained herein, the 1290 Avenue of the Americas Pooled Mortgage Loan shall not
constitute a Corrected Pooled Mortgage Loan under this Agreement.
"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": Individually and collectively, as applicable,
March 7, 2003, in the case of the 1290 Avenue of the Americas Mortgage Loan, and
March 1, 2003 for each other Mortgage Loan.
"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 March 2003, after application of all payments of principal due on or before
such date, whether or not received.
"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.
-27-
"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": Prudential Securities Secured Financing
Corporation, 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.
"Designated Sub-Servicer": Any Sub-Servicer set forth on
Schedule III hereto and any successor to such Sub-Servicer 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 Administered 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 the Trust other
than through an Independent Contractor; provided, however, that the Trustee (or
the Special Servicer on behalf of the Trustee) shall not be considered to
Directly Operate an Administered REO Property solely because the Trustee (or the
Special Servicer on behalf of the Trustee) establishes rental terms, chooses
-28-
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(b).
"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 regulations 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 regulations 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, the Trustee, the Certificate
Administrator and the Tax Administrator 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, the Certificate Administrator and the
Tax Administrator 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.
"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 (but not at the Tax
Administrator's expense) 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
-29-
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.
"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. [or the name of any
successor Certificate Administrator], 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 Prudential Securities Secured
Financing Corporation, Commercial Mortgage Pass-Through Certificates, 2003-PWR1,
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 April 2003.
"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, (A) the
long-term deposit or long-term unsecured debt obligations of which are rated no
less than "AA-" (or "A-" so long as the short-term deposit or short-term
unsecured debt obligations of such depository institution or trust company are
rated no less than "A-1") by S&P and "AA-" by Fitch (if the deposits are to be
held in the account for more than thirty (30) days), or (B) the short-term
deposit or short-term unsecured debt obligations of which are rated no less than
"A-1" by S&P 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,
subject to the remainder of this clause (ii), 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 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-
-30-
term unsecured debt obligations or other short-term deposits are rated at least
"A-1" by S&P 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 "AA-" (or "A-" so long as the short-term deposit or short-term unsecured
debt obligations of such subsidiary or its parent are rated no less than "A-1")
by S&P 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 Special Servicer is required
to make or to request a Master Servicer to make, that must be made within five
Business Days of the Special Servicer's becoming aware that it must be made in
order to avoid any material penalty, any material harm to a Mortgaged Property
securing a Serviced Mortgage Loan or any other material adverse consequence to
the Trust Fund.
"Environmental Insurance Policy": With respect to any
Mortgaged Property securing a Serviced Mortgage Loan or any Administered 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
the Special Servicer for the account of the Borrower under any Serviced Mortgage
Loan 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).
"Excess Liquidation Proceeds": The excess, if any, of (a) the
Net Liquidation Proceeds from the sale or liquidation of a Specially Serviced
Pooled Mortgage Loan or an Administered 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 the related REO Pooled Mortgage Loan, as the case may
be, 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 any Administered REO Property with respect to the Ballston
Common Pooled Mortgage Loan or the Renaissance Pooled Mortgage Loan, any portion
of such Net Liquidation Proceeds payable to the related B-Note Holder.
-31-
"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 "LaSalle Bank National Association [or name of any successor
Trustee], as Trustee, in trust for the registered holders of Prudential
Securities Secured Financing Corporation, Commercial Mortgage Pass-Through
Certificates, 2003-PWR1, Excess Liquidation Proceeds Account".
"Excess Servicing Fees": With respect to each Serviced
Mortgage Loan (and any successor REO Mortgage Loan with respect thereto), 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 Serviced
Mortgage Loan (and any successor REO Mortgage Loan with respect thereto), a rate
per annum equal to (i) in the case of a Pooled Mortgage Loan, the annual rate
specified as the "Excess Fee Rate" on the Pooled Mortgage Loan Schedule and (ii)
in the case of each B-Note Mortgage Loan, two basis points; provided that such
rate shall be subject to reduction at any time following any resignation of a
Master Servicer pursuant to Section 6.04 (if no successor is appointed in
accordance with Section 6.04(b)) or any termination of a Master Servicer
pursuant to Section 7.01, to the extent reasonably necessary (in the sole
discretion of the Trustee) for the Trustee to appoint a qualified successor
Master Servicer (which successor may include the Trustee) that meets the
requirements of Section 7.02.
"Excess Servicing Fee Right": With respect to each Serviced
Mortgage Loan (and any successor REO Mortgage Loan with respect thereto), 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.
"Exemption-Favored Party": Any of (i) ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, (ii) Bear, ▇▇▇▇▇▇▇ & Co. Inc., (iii) any Person
directly or indirectly, through one or more intermediaries, controlling,
controlled by or under common control with ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated or 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 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
the 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.
-32-
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Specially Serviced Mortgage Loan or Administered
REO Property, or by the applicable Master Servicer with respect to the 1290
Avenue of the Americas Pooled Mortgage Loan or any related REO Property, that
there has been a recovery of all Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds and other payments or recoveries that the Special Servicer
has determined, in accordance with the Servicing Standard, will be ultimately
Received by the Trust; 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, (c) any Controlling Class Certificateholder(s), a Master Servicer
or the Special Servicer pursuant to Section 9.01, (d) the Ballston Common B-Note
Holder pursuant to Section 3.28, (e) the Renaissance B-Note Holder pursuant to
Section 3.30 or (f) any party with a purchase option in respect of the 1290
Avenue of the Americas Pooled Mortgage Loan pursuant to the 1290 Avenue of the
Americas Intercreditor Agreement and/or the 1290 Avenue of the Americas
Servicing Agreement; and provided, further, that, for purposes of making any
such determination with respect to the 1290 Avenue of the Americas Pooled
Mortgage Loan or any related REO Property, the applicable Master Servicer shall
be entitled to rely on, and shall be required to follow, any comparable
determination made by the 1290 Avenue of the Americas Special Servicer.
"Fiscal Agent": ABN AMRO Bank N.V., a Netherlands banking
corporation, or any successor appointed as provided herein.
"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.
"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.
-33-
"Grantor Trust Provisions": Subpart E of Subchapter J of the
Code, including Treasury regulations 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).
"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 Loan(s).
"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, the Special Servicer, the
Certificate Administrator, the Tax Administrator, the Trustee, the Fiscal Agent,
the 1290 Avenue of the Americas Master Servicer, the 1290 Avenue of the Americas
Special Servicer, 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, the Special Servicer, the
Certificate Administrator, the Tax Administrator, the Trustee, the Fiscal Agent,
the 1290 Avenue of the Americas Master Servicer, the 1290 Avenue of the Americas
Special Servicer, 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 1290 Avenue of the
Americas Master Servicer, the 1290 Avenue of the Americas Special Servicer, 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 1290 Avenue
of the Americas Master Servicer, the 1290 Avenue of the Americas Special
Servicer, 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, the Special Servicer, the Trustee, such Fiscal Agent, the 1290
Avenue of the Americas Master Servicer, the 1290 Avenue of the Americas Special
Servicer, 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.
"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
-34-
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 regulations 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 Administered 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
Administered 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 Administered REO Property to fail to qualify as Rents from Real
Property.
"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 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
and received by or on behalf of the Trustee, a Master Servicer or the Special
Servicer (including, with respect to the 1290 Avenue of the Americas Pooled
Mortgage Loan or any related REO Property, any such proceeds remitted to the
applicable Master Servicer by the 1290 Avenue of the Americas Master Servicer or
the 1290 Avenue of the Americas Special Servicer pursuant to the 1290 Avenue of
the Americas Servicing Agreement and/or the 1290 Avenue of the Americas
Intercreditor Agreement), to the extent such proceeds are not applied to the
restoration of the related Mortgaged Property or REO Property (or placed in a
reserve account for that purpose) 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
-35-
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. [or the name of any successor Certificate Administrator], 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 Prudential Securities Secured Financing Corporation, Commercial
Mortgage Pass-Through Certificates, 2003-PWR1, 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
2004 or February of any year thereafter or during January of 2005 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 as of the end of the Collection Period (or, in the case of the
1290 Avenue of the Americas Pooled Mortgage Loan or any successor REO Pooled
Mortgage Loan with respect thereto, the 1290 Avenue of the Americas
Certificate-Level 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 (or, in the case of the 1290 Avenue of the
Americas Pooled Mortgage Loan or any successor REO Pooled Mortgage Loan with
respect thereto, such 1290 Avenue of the Americas Certificate-Level Collection
Period)), to the extent that a Monthly Payment (or, in the case of the 1290
Avenue of the Americas Pooled Mortgage Loan, a P&I Advance) is Received by the
Trust with respect to 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 with respect to
such Interest Reserve Loan 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 Interest
Reserve Loan subsequent to the Closing Date, whether entered into by the
applicable Master Servicer or the 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 any successor REO Pooled Mortgage Loan with respect
thereto).
"Investment Account": Each of the Collection Accounts, the
B-Note Accounts, the Servicing Accounts, the Reserve Accounts, the REO Account,
the Distribution Account, the Interest Reserve Account and the Excess
Liquidation Proceeds 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.
-36-
"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 the Trust thereon during any Collection Period
(or, in the case of the 1290 Avenue of the Americas Pooled Mortgage Loan, during
any related 1290 Avenue of the Americas Certificate-Level 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 Loan due or deemed
due on a Due Date in a previous Collection Period (or, in the case of the 1290
Avenue of the Americas Pooled Mortgage Loan, in a previous related 1290 Avenue
of the Americas Certificate-Level Collection Period) or on a Due Date during or
prior to March 2003, and not previously Received by the Trust; and (b) with
respect to any REO Pooled Mortgage Loan, all amounts Received by the Trust in
connection with the related REO Property during any Collection Period (or, in
the case of any 1290 Avenue of the Americas REO Property, during any related
1290 Avenue of the Americas Certificate-Level 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 (or, in the case of a 1290 Avenue of the Americas REO Pooled
Mortgage Loan, in a previous related 1290 Avenue of the Americas
Certificate-Level Collection Period), and not previously Received by the Trust.
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 regulations 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 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 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, (vii) in the case of a Mortgage Loan that is part of a Mortgage
Loan Pair, such Mortgage Loan is acquired by the Ballston Common B-Note Holder
pursuant to Section 3.28 or by the Renaissance B-Note Holder pursuant to Section
3.30, (viii) such
-37-
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, or (ix) in the case of the
1290 Avenue of the Americas Pooled Mortgage Loan, such Mortgage Loan is
purchased by a holder of a purchase option with respect thereto pursuant to the
1290 Avenue of the Americas Intercreditor Agreement and/or the 1290 Avenue of
the Americas Servicing Agreement; and (b) with respect to any REO Property (and
the related REO Mortgage Loan), any of the following events: (i) a Final
Recovery Determination is made with respect to such REO Property, (ii) such REO
Property 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, (iii) such REO Property is purchased by a Master Servicer, the Special
Servicer or any Controlling Class Certificateholder(s) pursuant to Section 9.01,
or (iv) 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 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) 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 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 or REO Property 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
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; (vii) the repurchase of the Ballston Common Pooled Mortgage
Loan by the Ballston Common B-Note Holder pursuant to Section 3.28; (viii) the
purchase of the Renaissance Pooled Mortgage Loan by the Renaissance B-Note
Holder pursuant to Section 3.30; or (ix) the purchase of the 1290 Avenue of the
Americas Pooled Mortgage Loan by any holder of a purchase option with respect
thereto pursuant to the 1290 Avenue of the Americas Intercreditor Agreement
and/or the 1290 Avenue of the Americas Servicing Agreement.
-38-
"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 Pooled Mortgage Loan, the Ballston Common B-Note Mortgage Loan or the
Renaissance B-Note Mortgage Loan, PAR, or any successor thereto appointed as
provided herein, or (b) if such Mortgage Loan is a BSCMI Pooled Mortgage Loan, a
CIBC Pooled Mortgage Loan or a WFB Pooled 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 (or, in the case of the 1290 Avenue of the
Americas Pooled Mortgage Loan, collected Monthly Payments that are due on a Due
Date following the end of the related 1290 Avenue of the Americas
Certificate-Level Collection Period), (ii) to the extent not covered by clause
(i) above, any payments of principal (including Principal Prepayments) and
interest (including Post-ARD Additional Interest), Insurance Proceeds,
Condemnation Proceeds and Liquidation Proceeds Received by the Trust with
respect to any Pooled Mortgage Loan or REO Property after the end of the related
Collection Period (or, in the case of the 1290 Avenue of the Americas Pooled
Mortgage Loan or any related REO Property, any such payments Received by the
Trust after the end of the related 1290 Avenue of the Americas Certificate-Level
Collection Period), (iii) any Prepayment Premiums and/or Yield Maintenance
Charges Received by the Trust with respect to any Pooled Mortgage Loan or
successor REO Pooled Mortgage Loan with respect thereto after the end of the
related Collection Period (or, in the case of the 1290 Avenue of the Americas
Pooled Mortgage Loan or any successor REO Pooled Mortgage Loan with respect
thereto, any Prepayment Premiums and/or Yield Maintenance Charges Received by
the Trust after the end of the related 1290 Avenue of the Americas
Certificate-Level 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.
-39-
"Master Servicing Fee": With respect to each Serviced Mortgage
Loan (and any successor REO Mortgage Loan with respect thereto), 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 Serviced
Pooled Mortgage Loan (and any successor REO Pooled Mortgage Loan with respect
thereto), a rate per annum equal to (a) the rate per annum specified as the
"Administrative Fee Rate" on the Pooled Mortgage Loan Schedule minus (b) sum of
the Trustee Fee Rate and the Servicer Report Administrator Fee Rate and (ii)
each 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 related 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.
"Modified Mortgage Loan": Any Pooled Mortgage Loan as to which
any Servicing Transfer Event has occurred and which has been modified by the
Special Servicer pursuant to Section 3.20 in a manner that:
(a) 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 Special Servicer (at the expense of the related Borrower and upon
which the Special Servicer may conclusively rely); or
(c) in the reasonable judgment of the 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 minimum monthly debt
service payment required to be paid on a current basis) on
-40-
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 Special Servicer pursuant to Section 3.20 or, in the
case of the 1290 Avenue of the Americas Pooled Mortgage Loan, by the 1290 Avenue
of the Americas Master Servicer or the 1290 Avenue of the Americas Special
Servicer pursuant to the 1290 Avenue of the Americas Servicing Agreement),
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.
"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 Prudential Securities Secured Financing
Corporation, Commercial Mortgage Pass-Through Certificates, 2003-PWR1,
without recourse, representation or warranty" or in blank, and further
showing a complete, unbroken chain of endorsement from 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 been delivered to
but not returned from the applicable recording office) with evidence of
recording indicated thereon; provided that if the original (or, in the
case of the 1290 Avenue of the Americas Pooled Mortgage Loan, a copy)
of the 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 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
-41-
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 recording office) with evidence
of recording thereon;
(iv) except in the case of the 1290 Avenue of the
Americas Pooled Mortgage Loan, 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 Prudential Securities Secured Financing
Corporation, Commercial Mortgage Pass-Through Certificates, Series
2003-PWR1 (or, in the case of each of the Ballston Common Pooled
Mortgage Loan and the Renaissance Pooled Mortgage Loan, in favor of
"LaSalle Bank National Association, in its capacity as Trustee for the
registered holders of Prudential Securities Secured Financing
Corporation, Commercial Mortgage Pass-Through Certificates, Series
2003-PWR1, and in its capacity as lead lender on behalf of a related
B-Note Holder") (or, in each case, a copy thereof, certified to be the
copy of such assignment submitted for recording);
(v) an original or a 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) except in the case of the 1290 Avenue of the
Americas Pooled Mortgage Loan, an original assignment of any related
Security Agreement (if such item is a document separate from the
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 Prudential Securities Secured Financing
Corporation, Commercial Mortgage Pass-Through Certificates, Series
2003-PWR1" (or, in the case of each of the Ballston Common Pooled
Mortgage Loan and the Renaissance Pooled Mortgage Loan, in favor of
"LaSalle Bank National Association, in its capacity as Trustee for the
registered holders of Prudential Securities Secured Financing
Corporation, Commercial Mortgage Pass-Through Certificates, Series
2003-PWR1, and in its capacity as lead lender on behalf of a related
B-Note Holder"), 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,
-42-
interim binder or the pro forma title insurance policy, in each case
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) except in the case of the 1290 Avenue of the Americas Pooled
Mortgage Loan, an original assignment thereof, in form suitable for
filing, in favor of "LaSalle Bank National Association, in its capacity
as Trustee for the registered holders of Prudential Securities Secured
Financing Corporation, Commercial Mortgage Pass-Through Certificates,
2003-PWR1" (or, in the case of each of the Ballston Common Pooled
Mortgage Loan and the Renaissance Pooled Mortgage Loan, in favor of
"LaSalle Bank National Association, in its capacity as Trustee for the
registered holders of Prudential Securities Secured Financing
Corporation, Commercial Mortgage Pass-Through Certificates, Series
2003-PWR1, and in its capacity as lead lender on behalf of a related
B-Note Holder");
(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 of
the transfer of the Mortgage Loan to the Trust or the Trustee on its
behalf;
(xi) except in the case of the 1290 Avenue of the
Americas Pooled Mortgage Loan, 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 a 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 a copy of the lock-box agreement
or cash management agreement relating to such Mortgage Loan, if any;
(xv) an original or a copy of the environmental
indemnity from the related Borrower or other third party, if any;
(xvi) an original or a copy of any intercreditor
agreement or similar agreement relating to such Mortgage Loan
(including, in the case of the 1290 Avenue of the Americas Pooled
Mortgage Loan, the 1290 Avenue of the Americas Intercreditor
Agreement);
(xvii) an original or a 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 such Mortgage Loan is greater than $20,000,000;
-43-
(xviii) an original or a copy of any master operating
lease with respect to the related Mortgaged Property;
(xix) an original or a 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 with
the origination of such Mortgage Loan (which checklist may be in a
reasonable form selected by the related Pooled 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 Ballston Common Pooled Mortgage Loan shall also
include a copy of the Ballston Common B-Note; (C) the "Mortgage File" for the
Renaissance Pooled Mortgage Loan shall also include a copy of the Renaissance
B-Note; (D) the "Mortgage File" for the 1290 Avenue of the Americas Pooled
Mortgage Loan shall also include a copy of the 1290 Avenue of the Americas
Servicing Agreement, as well as copies of all transfer documents comparable to
those documents described in clauses (iv), (vi) and (ix)(B) of this definition
(originals of which were delivered to the trustee under the Series 2003-TOP9
PSA); and (E) any reference to the "Mortgage File" for a B-Note Mortgage Loan
shall be deemed to include all the documents in the Mortgage File for the
corresponding Pooled Mortgage Loan except for the Mortgage Note for such Pooled
Mortgage Loan and any allonges thereto.
"Mortgage File Checklist": As defined in clause (xx) of
the definition of "Mortgage File".
"Mortgage Loan": The Ballston Common B-Note Mortgage Loan,
the Renaissance B-Note Mortgage Loan or any Pooled Mortgage Loan. As used
herein, the term "Mortgage Loan" includes the related Mortgage Loan Documents.
"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 Loan Pair": Each of the Ballston Common Mortgage
Loan Pair and the Renaissance Mortgage Loan Pair.
"Mortgage Loan Pair Controlling Party": Each of the Ballston
Common Controlling Party and the Renaissance Controlling Party.
"Mortgage Loan Pair Co-Lender Agreement": Each of the
Ballston Common Co-Lender Agreement and the Renaissance Co-Lender
Agreement.
-44-
"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
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 the case of the 1290 Avenue of the Americas Pooled Mortgage Loan, by the
1290 Avenue of the Americas Master Servicer or the 1290 Avenue of the Americas
Special Servicer in accordance with the 1290 Avenue of the Americas Servicing
Agreement) 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 1290 Avenue of the Americas Pooled
Mortgage Loan that are distributable to Certificateholders on such Distribution
Date and/or on the other 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 Special Servicer as
Additional Special Servicing Compensation.
-45-
"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 Investment Account for the benefit of a Master Servicer, the
Special Servicer or the Certificate Administrator, 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, the Special
Servicer or the Certificate Administrator, 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 Received by the Trust with respect to any Specially
Serviced Mortgage Loan or Administered REO Property, over the amount of all
Liquidation Expenses incurred with respect thereto and all related Servicing
Advances reimbursable therefrom.
"Net Mortgage Rate": With respect to (i) any Pooled Mortgage
Loan (or any successor REO Pooled Mortgage Loan with respect thereto), 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) any 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 an Administered 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.
-46-
"Nonrecoverable P&I Advance": As evidenced by the Officer's
Certificate and supporting documentation contemplated by Section 4.03(c) (or, in
the case of the 1290 Avenue of the Americas Pooled Mortgage Loan or any
successor REO Pooled Mortgage Loan with respect thereto, as otherwise evidenced
as contemplated by the 1290 Avenue of the Americas Servicing Agreement), 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, in the case of the 1290 Avenue of the Americas Pooled
Mortgage Loan or any successor REO Pooled Mortgage Loan with respect thereto, by
the 1290 Avenue of the Americas Master Servicer) or, if applicable, by 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 or the related REO Property (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
Serviced Mortgage Loan or Administered 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 or such REO
Property (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.
"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 the 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
either 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
-47-
the Depositor, the Certificate Administrator, the Trustee, the Tax
Administrator, the Fiscal Agent, either Master Servicer or the 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.
"Option Period": As defined in Section 3.18(c).
"Option Price": As defined in Section 3.18(c).
"Original BSCMI Pooled Mortgage Loans": The mortgage loans
initially identified on the schedule attached hereto as Schedule I-B.
"Original CIBC Pooled Mortgage Loans": The mortgage loans
initially identified on the schedule attached hereto as Schedule I-D.
"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-C.
"Other Crossed Loans": As defined in Section 2.03(b).
"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 (as well as, in the case of
the 1290 Avenue of the Americas Pooled Mortgage Loan or any successor REO Pooled
Mortgage Loan with respect thereto, any comparable advance made by the 1290
Avenue of the Americas Master Servicer or other party under the 1290 Avenue of
the Americas Servicing Agreement).
"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 Monthly Payment
or Assumed Monthly Payment due and payable, or deemed due and payable, in
respect of any particular Pooled Mortgage
-48-
Loan, the status attributable to that Mortgage Loan by reason of, if applicable,
the fact that such Monthly Payment or Assumed Monthly Payment remains unpaid
past its Due Date and past any applicable grace period for such Monthly Payment
or Assumed Monthly Payment.
"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 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).
"Performing Serviced Mortgage Loan": Any Serviced Mortgage
Loan that is not a Specially Serviced Mortgage Loan.
"Performing Serviced Pooled Mortgage Loan": Any Pooled
Mortgage Loan that is a Performing Serviced Mortgage Loan. Notwithstanding
anything herein to the contrary, the 1290 Avenue of the Americas Pooled Mortgage
Loan shall in no event constitute a Performing Serviced Pooled Mortgage Loan
hereunder.
"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 S&P 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 S&P 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);
-49-
(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 S&P 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 S&P 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 and Certificate Administrator 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, (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 (D) no investment described
hereunder may have an "r" highlighter or other comparable qualifier attached to
its rating; 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 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, (d) a foreign
permanent establishment or fixed base (within the meaning of any applicable
income tax treaty between the United States and any foreign jurisdiction) of a
United States Tax Person or (e) any other Person as to whom, as determined by
the Tax Administrator (based upon an Opinion of Counsel, obtained at the request
of the Tax 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
-50-
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" as
described in, and meeting the criteria of, the American Society for Testing and
Materials, plus a radon and asbestos inspection.
"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": Prudential Mortgage Capital Funding, LLC, or its
successor in interest.
"PMCF Pooled Mortgage Loan": Any Pooled 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 Pooled Mortgage Loan.
"PMCF Pooled Mortgage Loan Purchase Agreement": That certain
Pooled Mortgage Loan Purchase Agreement dated as of March 7, 2003, between PMCF
as seller and the Depositor as purchaser.
"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 "Pooled Mortgage Loan" includes the
related Mortgage Loan Documents.
"Pooled Mortgage Loan Purchase Agreement": Any of the BSCMI
Pooled Mortgage Loan Purchase Agreement, the WFB Pooled Mortgage Loan Purchase
Agreement, the PMCF Pooled Mortgage Loan Purchase Agreement and the CIBC Pooled
Mortgage Loan Purchase Agreement.
"Pooled Mortgage Loan Schedule": Collectively, the four
schedules of Pooled Mortgage Loans attached hereto as Schedule I-A, Schedule
I-B, Schedule I-C and Schedule I-D, 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 Pooled Mortgage
Loan:
(i) the loan number assigned to the Pooled 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;
-51-
(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 Pooled
Mortgage Loan currently requires only payments of
interest but begins to amortize prior to maturity, on
the first Due Date after amortization begins);
(v) the Mortgage Rate as of the Closing Date and the
Interest Accrual Basis;
(vi) the maturity date and the original and remaining term
to stated maturity (or, 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 such Pooled Mortgage Loan is secured by a fee
simple interest in the related Mortgaged Property; by
the Borrower's leasehold interest, and a fee simple
interest, in the related Mortgaged Property; or
solely by a leasehold interest in the related
Mortgaged Property;
(xi) the name of the related 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;
(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 and the Master Servicing
Fee Rate for such Pooled Mortgage Loan.
-52-
"Pooled Mortgage Loan Sellers": Collectively, WFB, BSCMI, PMCF
and CIBC.
"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.
"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 Pooled
Mortgage Loan that is an ARD Mortgage Loan is paid in its entirety on its
Anticipated Prepayment Date and that no Pooled Mortgage Loan is otherwise
voluntarily prepaid prior to its Stated Maturity Date.
"Prepayment Interest Excess": With respect to any Pooled
Mortgage Loan (other than the 1290 Avenue of the Americas 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 Charges 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); and with respect to the 1290 Avenue of the Americas Pooled Mortgage
Loan, if such Pooled Mortgage Loan is the subject of any Principal Prepayment in
full or in part (or, if resulting from the application of Insurance Proceeds or
Condemnation Proceeds, any other early recovery of principal), any payment of
interest (adjusted to a rate per annum equal to the related Mortgage Rate minus
three basis points) accrued on such Principal Prepayment (or other early
recovery of principal), which payment of interest was Received by the Trust with
respect to such Pooled Mortgage Loan and covers the period from the related Due
Date in the same month as the Distribution Date on which such Principal
Prepayment (or other early recovery of principal) is distributed to
Certificateholders 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 (other than the 1290 Avenue of the Americas 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
-53-
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 (or other early recovery of principal) during the period from the
date to which interest thereon was paid by the related Borrower to, but not
including, such Due Date; and with respect to the 1290 Avenue of the Americas
Pooled Mortgage Loan and any Distribution Date on which the related Principal
Prepayment (or other early recovery of principal) is distributed under this
Agreement to Certificateholders, if such Pooled Mortgage Loan is the subject of
any Principal Prepayment in full or in part (or, if resulting from the
application of Insurance Proceeds or Condemnation Proceeds, any other early
recovery of principal), the amount of interest, to the extent not Received by
the Trust (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 three basis points) on the amount of such
Principal Prepayment (or other early recovery of principal) during the period
from the date to which interest thereon was paid by the Borrower to, but not
including, the Due Date in the calendar month in which that Distribution Date
occurs.
"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 with respect thereto (including
any payoff of a Mortgage 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
the 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 the Trust with respect to the Serviced 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 Serviced Pooled Mortgage Loans
for their respective Due Dates occurring during the related Collection
Period, that were Received by the Trust (other than as part of a
Principal Prepayment) prior to the related Collection Period,
-54-
(iii) the aggregate of all Liquidation Proceeds,
Condemnation Proceeds and Insurance Proceeds Received by the Trust with
respect to any Serviced Pooled Mortgage Loans during the related
Collection Period that were identified and applied by the applicable
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
the Trust with respect to any Administered REO Properties during the
related Collection Period that were identified and applied by the
applicable 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,
(v) the respective principal portions of all P&I
Advances made under this Agreement in respect of the Pooled Mortgage
Loans (including the 1290 Avenue of the Americas Pooled Mortgage Loan)
and any REO Pooled Mortgage Loans (including any 1290 Avenue of the
Americas REO Pooled Mortgage Loan) with respect to such Distribution
Date, and
(vi) all amounts Received by the Trust on or with
respect to the 1290 Avenue of the Americas Pooled Mortgage Loan or any
1290 Avenue of the Americas REO Pooled Mortgage Loan during the related
1290 Avenue of the Americas Certificate-Level Collection Period that,
in each case, represents a payment, advance or other recovery of
principal with respect to the 1290 Avenue of the Americas Pooled
Mortgage Loan or the 1290 Avenue of the Americas REO Pooled Mortgage
Loan, as the case may be, exclusive of any portion of such amounts that
represent a late payment or other recovery 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;
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 Serviced Pooled Mortgage Loan or Administered 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 Pooled Mortgage Loan or Administered 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 Serviced
Pooled Mortgage Loan or Administered 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
Prepayment Premium, Yield Maintenance Charge and/or Post-ARD
-55-
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 March 7, 2003, relating to certain classes of the
Non-Registered Certificates delivered by the Depositor to ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇▇▇ Fargo Brokerage
Services, LLC and CIBC World Markets Corp. 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 K-1 hereto or Exhibit K-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 either 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 March 7, 2003, 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 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 (or, in the case of the 1290 Avenue of the Americas Pooled
Mortgage Loan or any related REO Property, the 1290 Avenue of the Americas
Certificate-Level Collection Period) during which the applicable purchase or
repurchase occurs (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), (c) all related
unreimbursed Servicing Advances and all related Servicing Advances that were
previously reimbursed out of collections on other Pooled Mortgage Loans and/or
REO Properties relating to other Pooled Mortgage Loans, 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, a purchase of the Ballston Common Pooled Mortgage Loan by
the Ballston Common B-Note Holder pursuant to the Ballston Common Co-Lender
Agreement or Section 3.28 or a purchase of the Renaissance Pooled Mortgage Loan
by the Renaissance B-Note Holder pursuant to the Renaissance Co-Lender Agreement
or Section 3.30, (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 Pooled
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 a Master Servicer, the Special Servicer, the
Trustee or an agent of any of them (on
-56-
behalf of the Trust) in enforcing the obligation, if any, 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 Defective
Pooled Mortgage Loan as of the Due Date in the calendar month during which the
substitution occurs; (ii) has a fixed Mortgage Rate that is not less than, and
not more than one percentage point in excess of, the Mortgage Rate of the
Defective 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
-57-
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 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 Defective 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 February 2036.
"Rating Agency": Each of S&P 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 Pooled 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 Pooled
Mortgage Loan, as the case may be, as of the commencement of the
Collection Period (or, in the case of the 1290 Avenue of the Americas
Pooled Mortgage Loan or any successor REO Pooled Mortgage Loan with
respect thereto, the 1290 Avenue of the Americas Certificate-Level
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 Pooled Mortgage Loan, as the case may
be, to but not including the Due Date in the Collection Period (or, in
the case of the 1290 Avenue of the Americas Pooled Mortgage Loan or any
successor REO Pooled Mortgage Loan with respect thereto, the 1290
Avenue of the Americas Certificate-Level 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 the Trust in respect
of such Pooled Mortgage Loan or, to the extent allocable to such REO
Pooled Mortgage Loan, the related REO Property, as the case may be,
during the Collection Period (or, in the case of the 1290 Avenue of the
Americas Pooled Mortgage Loan or any successor REO Pooled Mortgage Loan
with respect thereto, the 1290 Avenue of the Americas Certificate-Level
Collection Period) in which such Final Recovery Determination was made;
-58-
(2) each Pooled Mortgage Loan as to which any portion
of the principal or previously accrued interest payable thereunder was
canceled 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
Master Servicer or the Special Servicer pursuant to Section 3.20 (or,
in the case of the 1290 Avenue of the Americas Pooled Mortgage Loan, by
the 1290 Avenue of the Americas Master Servicer or the 1290 Avenue of
the Americas Special Servicer pursuant to the 1290 Avenue of the
Americas Servicing Agreement), 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 Master Servicer or the Special Servicer pursuant to Section
3.20 (or, in the case of the 1290 Avenue of the Americas Pooled
Mortgage Loan, by the 1290 Avenue of the Americas Master Servicer or
the 1290 Avenue of the Americas Special Servicer pursuant to the 1290
Avenue of the Americas Servicing Agreement), 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).
"Received by the Trust": In the case of: (a) the 1290 Avenue
of the Americas Pooled Mortgage Loan or any 1290 Avenue of the Americas REO
Property, received by the Trustee (or the applicable Master Servicer on behalf
of the Trustee), as holder of the Mortgage Note for the 1290 Avenue of the
Americas Pooled Mortgage Loan, on behalf of the Trust; and (b) any Serviced
Pooled Mortgage Loan or Administered REO Property, received by a Master Servicer
or any of its Sub-Servicers, the Special Servicer or the Trustee, as the case
may be, in any event on behalf of the Trust.
"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 applicable 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
-59-
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.
"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 Servicer 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 in reliance on Regulation S.
"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.
"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.
-60-
"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 beneficial
ownership interests in REMIC III issued hereunder, evidenced by a Class of
Interest Only Certificates 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.
"Renaissance Assignment and Assumption Agreement": As defined
in Section 3.29(b).
"Renaissance B-Note": The Mortgage Note for the Renaissance
B-Note Mortgage Loan.
"Renaissance B-Note Account": A segregated account or accounts
created and maintained by the Master Servicer in respect of the Renaissance
Mortgage Loan Pair, pursuant to Section 3.04(f), in trust for the Renaissance
B-Note Holder, which shall be entitled "Prudential Asset Resources, Inc. [or the
name of any successor Master Servicer in respect of the Renaissance Mortgage
Loan Pair], as a Master Servicer, in trust for [name of Renaissance B-Note
Holder]"; provided, however, that if, and for so long as, the Ballston Common
B-Note Holder and the Renaissance B-Note Holder are the same Person or are
Affiliates, then such account may at its/their option be for both the Ballston
Common B-Note Mortgage Loan and the Renaissance B-Note Mortgage Loan (provided
that deposits into and withdrawals from that joint account are made in the same
manner as provided herein for two separate accounts), and such joint account
shall be entitled "Prudential Asset Resources, Inc. [or the name of any
successor master servicer in respect to such loans], as a Master Servicer, in
trust for [name of Ballston Common B-Note Holder and Renaissance B-Note
Holder]."
"Renaissance B-Note Holder": The holder of the Renaissance
B-Note.
"Renaissance B-Note Mortgage Loan": The Mortgage Loan, in the
original principal amount of $2,000,000.00 that is secured by the same Mortgage
on the Renaissance Mortgaged Property
-61-
as the Renaissance Pooled Mortgage Loan. The Renaissance B-Note Mortgage Loan is
not part of the Trust Fund, any REMIC Pool or either Grantor Trust Pool.
"Renaissance Borrower": The Borrower under the Renaissance
Mortgage Loan Pair.
"Renaissance Change of Control Event": As of any date of
determination, the event that has occurred by reason of either (a) the unpaid
principal amount of the Renaissance B-Note Mortgage Loan, reduced by any
Appraisal Reduction Amount, Realized Losses attributable to the Renaissance
Mortgage Loan Pair (and not otherwise reflected in the unpaid principal amount
of the Renaissance B-Note Mortgage Loan) and outstanding Additional Trust Fund
Expenses for the Renaissance Mortgage Loan Pair (calculated as if the
Renaissance Mortgage Loan Pair was a single Pooled Mortgage Loan), being less
than 25% of the original unpaid principal amount of the Renaissance B-Note
Mortgage Loan or (b) the Renaissance B-Note Holder being the Borrower or an
Affiliate of the Borrower under the Renaissance Mortgage Loan Pair.
"Renaissance Co-Lender Agreement": As defined in Section
3.29(a).
"Renaissance Controlling Party": One of the following
parties--
(a) if a Renaissance Change of Control Event has
occurred and is continuing, the Controlling Class Representative; and
(b) in all other cases, the Renaissance B-Note Holder
or its representative appointed in accordance with Section 18(d) of the
Renaissance Co-Lender Agreement.
"Renaissance Mortgage Loan Pair": The Renaissance Pooled
Mortgage Loan and the Renaissance B-Note Mortgage Loan, together.
"Renaissance Mortgaged Property": The Mortgaged Property
identified on the Pooled Mortgage Loan Schedule as "Renaissance Pere Marquette
Hotel".
"Renaissance Pooled Mortgage Loan": The Pooled Mortgage Loan
secured by the Renaissance Mortgaged Property.
"Renaissance Purchase Trigger Event": The occurrence of any of
the following events: (i) as of any date of determination up to and including
the maturity date of the Renaissance Pooled Mortgage Loan, any Monthly Payment
becomes 90 days or more delinquent; and (ii) as of any date of determination
subsequent to the maturity date of the Renaissance Pooled Mortgage Loan, any
event of default under the Renaissance Mortgage Loan Pair that results in the
Renaissance Mortgage Loan becoming a Specially Serviced Mortgage Loan.
"Renaissance REO Property": The Renaissance Mortgaged
Property, if such Mortgaged Property becomes an REO Property hereunder.
"Renaissance Sub-Servicer": Any Sub-Servicer of the
Renaissance Mortgage Loan Pair appointed by the applicable Master Servicer in
accordance with the terms hereof with the approval or at the direction of the
Renaissance Controlling Party or, if different, the Renaissance B-Note Holder.
-62-
"Renaissance Sub-Servicing Agreement": The Sub-Servicing
Agreement between the Renaissance Sub-Servicer and the applicable Master
Servicer.
"Rents from Real Property": With respect to any REO
Property, gross income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts
created and maintained by the Special Servicer, pursuant to Section 3.16(b), on
behalf of the Trustee in trust for the Certificateholders (and, if the subject
REO Property consists of the Ballston Common Mortgaged Property or the
Renaissance Mortgaged Property, for the related B-Note Holder), which shall be
entitled "ARCap Servicing, Inc. [or the name of any successor Special Servicer],
as Special Servicer, on behalf of LaSalle Bank National Association [or the name
of any successor Trustee], as Trustee, in trust for the registered holders of
Prudential Securities Secured Financing Corporation, Commercial Mortgage
Pass-Through Certificates, Series 2003-PWR1, REO Account".
"REO Acquisition": The acquisition of any REO Property
pursuant to Section 3.09 (or, in the case of any 1290 Avenue of the Americas REO
Property, pursuant to the 1290 Avenue of the Americas Servicing Agreement).
"REO Disposition": The sale or other disposition of any REO
Property pursuant to Section 3.18 (or, in the case of any 1290 Avenue of the
Americas REO Property, pursuant to the 1290 Avenue of the Americas Servicing
Agreement).
"REO Extension" As defined in Section 3.16(a).
"REO Mortgage Loan": The mortgage loan (or, in the case of any
Ballston Common REO Property or Renaissance REO Property, either of the two
mortgage loans) 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 Mortgage Loan and the acquisition of the related REO Property as
part of the Trust Fund or, if applicable in the case of any 1290 Avenue of the
Americas REO Property, on behalf of the Trust and the respective holders of the
1290 Avenue of the Americas Non-Pooled Loans). 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 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 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
Special Servicer, the Trustee or the Fiscal Agent, as the case may be, in
respect of an REO Mortgage Loan.
-63-
"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 Ballston Common Mortgaged Property or the Renaissance Mortgaged
Property, also on behalf of the related 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; provided that the 1290 Avenue of the Americas Mortgaged Property shall
constitute an REO Property if and when it constitutes "REO Property" under the
1290 Avenue of the Americas Servicing Agreement.
"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 the 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 carrier, "A" by S&P
and "A-" by Fitch, (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, "A" by S&P and "A-" by Fitch, and (iii) in the case
of any other insurance coverage provided by such insurance carrier, "A" by S&P
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 in writing 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 the Rating Agency whose rating
requirement set forth in clause (i) or (ii), as applicable, of this definition
has not been met 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 a Mortgage Loan Pair or the related Mortgaged Property, the related
Mortgage Loan Pair Controlling Party has confirmed in writing that such
insurance carrier is acceptable to it), 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).
-64-
"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; 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.
"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.
"S&P": Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or its successor in interest. If neither such rating
agency nor any successor remains in existence, "S&P" shall be deemed to refer to
such other nationally recognized statistical rating agency or other comparable
Person designated by the Depositor, notice of which designation shall be given
to the other parties hereto, and specific ratings of Standard & Poor's Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, 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 S&P, be deemed to
refer to such applicable rating category of S&P, without regard to any plus or
minus or other comparable rating qualification.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification": As defined in Section 8.15(b).
"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.
"Series 2003-TOP9 PSA": That certain Pooling and Servicing
Agreement dated as of February 1, 2003, between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Capital I Inc., as depositor, WFB as master
-65-
servicer, ARCap SI as special servicer, LaSalle as trustee, ABN AMRO as fiscal
agent and WFBM as paying agent and certificate registrar, relating to the Series
2003-TOP9 Commercial Mortgage Pass-Through Certificates.
"Serviced Mortgage Loan": Any Mortgage Loan (including a
Specially Serviced Mortgage Loan, but excluding an REO Mortgage Loan) other than
the 1290 Avenue of the Americas Pooled Mortgage Loan.
"Serviced Pooled Mortgage Loan": Any Pooled Mortgage Loan that
is a Serviced Mortgage Loan. Notwithstanding anything herein to the contrary,
the 1290 Avenue of the Americas Pooled Mortgage Loan shall in no event
constitute a Serviced Pooled Mortgage Loan hereunder.
"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 the Special Servicer (or, if applicable, the Trustee or the
Fiscal Agent) in connection with the servicing of a Serviced 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 Administered REO
Property, including:
(1) any such costs and expenses associated with (a)
compliance with the obligations of the applicable Master Servicer
and/or the Special Servicer set forth in Sections 2.03, 3.03(c) and
3.09, (b) the preservation, insurance, restoration, protection and
management of either a Mortgaged Property securing a Serviced Mortgage
Loan or an REO Property, including the cost of any "force placed"
insurance policy purchased by the applicable Master Servicer or the
Special Servicer to the extent such cost is allocable to a particular
Mortgaged Property that the applicable Master Servicer or the 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 Serviced Mortgage Loan or
any Administered REO Property, (d) any enforcement or judicial
proceedings with respect to any such Serviced Mortgage Loan, including
foreclosures and similar proceedings, (e) the operation, management,
maintenance and liquidation of any Administered 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), and
(2) the reasonable and direct out-of-pocket travel
expenses incurred by the Special Servicer in connection with performing
inspections pursuant to Section 3.12(a);
-66-
provided that, notwithstanding anything to the contrary, "Servicing Advances"
shall not include (A) allocable overhead of a Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, 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 or on behalf of any such party hereto 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 or similar agreement or (C) costs or
expenses expressly required under this Agreement to be borne by a Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent.
"Servicing Advances" shall also include, however, any other
expenditure which is expressly designated as a "Servicing Advance" herein. All
Emergency Advances made by a 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, but including originals or copies of
all management agreements which are not covered by clause (xvii) of the
definition of "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 the 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 the Special Servicer involved in, or responsible for, the
administration and servicing of Serviced Mortgage Loans, whose name and specimen
signature appear on a 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
the Special Servicer, as the case may be.
"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 Special
Servicer to the applicable Master Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master
Servicers and the Special Servicer, to service and administer the Serviced
Mortgage Loans and any Administered 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 a Mortgage Loan
Pair, for the benefit of the Certificateholders and the related B-Note Holder)
(as determined by the applicable Master Servicer or the 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 a Mortgage Loan Pair, the
related Mortgage Loan Pair Co-Lender Agreement) and, to the extent consistent
with the foregoing, in accordance with:
-67-
(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 Serviced Mortgage Loans and the full collection of
all Prepayment Premiums and Yield Maintenance Charges that may become
payable under the Serviced Mortgage Loans, and (ii) in the case of the
Special Servicer and any Serviced Mortgage Loan that is (A) a Specially
Serviced Mortgage Loan that the Special Servicer determines, in its
reasonable, good faith judgment, will not become a Corrected Mortgage
Loan or (B) a Mortgage Loan as to which the related Mortgaged Property
has become an REO Property, the maximization of recovery on such
Mortgage Loan to the Certificateholders (or, in the case of a Mortgage
Loan Pair, to the Certificateholders and the related 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 a Mortgage Loan Pair, to the
Certificateholders and the related 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 Special Servicer, as the case may
be, or any of its Affiliates may have with a related Borrower, a
Mortgage Loan Seller or any other party to this Agreement, (ii) the
ownership of any Certificate or any interest in a B-Note Mortgage Loan
by the applicable Master Servicer or the Special Servicer, as the case
may be, or any of its Affiliates, (iii) the obligation of the
applicable Master Servicer to make Advances or otherwise to incur
servicing expenses with respect to any Serviced Mortgage Loan or
Administered REO Property, (iv) the obligation of the Special Servicer
to make, or direct the applicable Master Servicer to make, Servicing
Advances (including Emergency Advances) or otherwise to incur servicing
expenses with respect to any Serviced Mortgage Loan or Administered REO
Property, (v) the right of the applicable Master Servicer or the
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 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 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 Special Servicer, as the case may be, or any of
its Affiliates to repurchase any Pooled 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;
provided that the foregoing standards shall apply with respect to the 1290
Avenue of the Americas Pooled Mortgage Loan and any related REO Property only to
the extent that the applicable Master Servicer or the Special Servicer has any
express duties or rights to grant consent with respect thereto
-68-
pursuant to this Agreement.
"Servicing Transfer Event": With respect to any Serviced
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.
"Special Servicer": ARCap SI, in its capacity as special
servicer hereunder, or any successor special servicer appointed as provided
herein.
"Special Servicing Fee": With respect to each Specially
Serviced Mortgage Loan and each REO Mortgage Loan (other than any 1290 Avenue of
the Americas REO Pooled Mortgage Loan), the fee designated as such and payable
to the Special Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Mortgage Loan (other than any 1290 Avenue of
the Americas REO Pooled Mortgage Loan), 0.25% per annum.
"Specially Designated Defaulted Pooled Mortgage Loan": A
Specially Serviced Pooled 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 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
-69-
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,
in each case 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) except in the case of the 1290 Avenue of the
Americas Pooled Mortgage Loan, the original of 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 Serviced 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 applicable 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 the time period for refinancing specified in
such binding commitment or (y) the applicable Master Servicer is
required to make a P&I Advance in respect of such Mortgage Loan (or, in
the case of a B-Note Mortgage Loan, 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 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
-70-
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 applicable Master Servicer's or the 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
applicable 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 otherwise
materially and adversely affect the interests of Certificateholders
(or, in the case of a B-Note Mortgage Loan, the interests of the
related B-Note Holder), which default has continued unremedied for the
applicable cure period under the terms of such 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 Serviced 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 such
-71-
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 bankruptcy 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 the 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, exercised in accordance with the
Servicing Standard, of the Special Servicer;
(y) with respect to the circumstances described in
clause (d) above, such default is cured in the good faith reasonable
judgment, exercised in accordance with the Servicing Standard, of the
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 a
Mortgage Loan Pair it shall be deemed to exist for the other Mortgage Loan in
such Mortgage Loan Pair.
"Specially Serviced Pooled Mortgage Loan": A Pooled Mortgage
Loan that constitutes a Specially Serviced Mortgage Loan. Notwithstanding
anything herein to the contrary, the 1290 Avenue of the Americas Pooled Mortgage
Loan shall not constitute a Specially Serviced Pooled Mortgage Loan hereunder.
"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 the Special
Servicer pursuant to Section 3.20 (or, in the case of the 1290 Avenue of the
Americas Pooled Mortgage Loan, by the 1290 Avenue of the Americas Master
Servicer or the 1290 Avenue of the Americas Special Servicer pursuant to the
1290 Avenue of the Americas Servicing Agreement) and, in the case of an ARD
Mortgage Loan, without regard to its Anticipated Repayment Date.
"Stated Principal Balance": With respect to any Pooled
Mortgage Loan (and any successor REO Pooled Mortgage Loan with respect thereto),
a principal balance which (a) initially shall
-72-
equal the unpaid principal balance thereof as of the related Due Date in March
2003 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)
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 Pooled Mortgage Loan (or successor
REO Pooled Mortgage Loan), (ii) the principal portion of any Realized Loss
incurred in respect of such Pooled Mortgage Loan (or successor REO Pooled
Mortgage Loan) during the related Collection Period (or, in the case of the 1290
Avenue of the Americas Pooled Mortgage Loan or any successor REO Pooled Mortgage
Loan with respect thereto, during the related 1290 Avenue of the Americas
Certificate-Level 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 Pooled Mortgage Loan (or successor REO Pooled Mortgage
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 Pooled 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 (or, in the case of the 1290 Avenue of the Americas Pooled
Mortgage Loan or any related REO Property, the 1290 Avenue of the Americas
Certificate-Level Collection Period) in which such Liquidation Event occurred.
The "Stated Principal Balance" of a B-Note Mortgage Loan or any successor REO
Mortgage Loan with respect thereto shall be deemed to equal: (a) as of any date
of determination up to and including the initial Determination Date, the related
unpaid principal balance outstanding as of the related Due Date in March 2003;
and (b) as of any date of determination subsequent to the initial Determination
Date, the related unpaid principal balance outstanding or deemed to be
outstanding as of the end of the then most recently ended Collection Period.
"Sub-Servicer": Any Person with which a Master Servicer has
entered into a Sub-Servicing Agreement in accordance with the terms hereof.
"Sub-Servicing Agreement": The written contract between a
Master Servicer, on the one hand, and any Sub-Servicer, on the other hand,
relating to servicing and administration of Serviced 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 initial
Stated Principal Balance or the initial 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": WFBM, in its capacity as tax
administrator hereunder, or any successor tax administrator appointed as herein
provided.
"Tax Administrator Fee": The portion of the Trustee Fee
payable to the Tax Administrator in an amount agreed to by the Trustee and the
Tax Administrator.
-73-
"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 regulations section 1.860F-4(d) and temporary Treasury
regulations 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 and the Tax Administrator Fee.
"Trustee Fee Rate": 0.0027% per annum.
"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 Accrued Interest": As defined in Section
2.12(g) with respect to any REMIC I Regular Interest for any Interest Accrual
Period and in Section 2.14(g) with respect to any REMIC II Regular Interest for
any Interest Accrual Period.
-74-
"Uncertificated Distributable Interest": As defined in Section
2.12(g) with respect to any REMIC I Regular Interest for any Distribution Date
and in Section 2.14(g) with respect to any REMIC II Regular Interest for any
Distribution Date.
"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, ▇▇▇▇▇ Fargo Brokerage Services, LLC and
CIBC World Markets Corp.
"Underwriter Exemption": PTE 90-30 (with respect to any
Investment Grade Certificates initially sold by the Depositor to Bear, ▇▇▇▇▇▇▇ &
Co. Inc.), PTE 90-29 (with respect to any Investment Grade Certificates
initially sold by the Depositor to ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, CIBC World Markets Corp. or ▇▇▇▇▇ Fargo Brokerage Services, LLC),
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 Level
File, the CMSA Collateral Summary File, the CMSA Loan Setup File, the CMSA Loan
Periodic Update File, the CMSA Property 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.
-75-
"Weighted Average REMIC I Remittance Rate": As defined in
Section 2.14(f).
"WFB": ▇▇▇▇▇ Fargo Bank, National Association, or its
successor in interest.
"WFB Pooled Mortgage Loan": Any Mortgage Loan that is either
an Original WFB Pooled 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 Pooled Mortgage Loan.
"WFB Pooled Mortgage Loan Purchase Agreement": That certain
Pooled Mortgage Loan Purchase Agreement dated as of March 7, 2003, between WFB
as seller and the Depositor as purchaser.
"WFBM": ▇▇▇▇▇ Fargo Bank Minnesota, N.A., or its successor
in interest.
"Within Grace Period Loan": With respect to any Monthly
Payment or Assumed Monthly Payment due and payable, or deemed due and payable,
in respect of any particular Pooled Mortgage Loan, the status attributable to
that Mortgage Loan by reason of, if applicable, the fact that, although such
Monthly Payment or Assumed Monthly Payment has not been received, the Due Date,
together with any applicable grace period, for such Monthly Payment or Assumed
Monthly Payment has not passed.
"Workout Fee": The fee designated as such in, and payable to
the 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;
-76-
(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;
(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 Received by 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
Pooled 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 Received by 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 Ballston Common Pooled
Mortgage Loan, the Renaissance Pooled Mortgage Loan and the 1290 Avenue of the
Americas 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 Pooled 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 Pooled Mortgage
Loan then due and owing, including by reason of acceleration of such 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 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 Pooled 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
-77-
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) Amounts Received by the Trust with respect to each REO
Property (other than, if applicable, any Ballston Common REO Property, any
Renaissance REO Property or any 1290 Avenue of the Americas REO Property)
(exclusive of amounts to be applied to the payment of the costs of operating,
managing, maintaining and disposing of such REO Property) shall be treated:
first, as a recovery of any related and unreimbursed Servicing Advances and, 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 Pooled 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.
(c) Amounts collected on or with respect to the Ballston
Common Mortgage Loan Pair or any related REO Property shall be applied in
accordance with Section 3 or Section 4, as applicable, of the Ballston Common
Co-Lender Agreement. Amounts collected on or with respect to the Renaissance
Mortgage Loan Pair or any related REO Property shall be applied in accordance
with Section 3 or Section 4, as applicable, of the Renaissance Co-Lender
Agreement. Amounts Received by the Trust with respect to the 1290 Avenue of the
Americas Pooled Mortgage Loan or any 1290 Avenue of the Americas REO Pooled
Mortgage Loan shall be allocated among interest (other than Default Interest),
principal and Yield Maintenance Charges due thereon in accordance with Article
II of the related loan agreement and consistent with the 1290 Avenue of the
Americas Intercreditor Agreement and consistent with the allocation of any such
amounts set forth in any distribution date statement or servicer report with
respect to the 1290 Avenue of the Americas Pooled Mortgage Loan or any 1290
Avenue of the Americas REO Pooled Mortgage Loan.
(d) For the purposes of this Agreement, Post-ARD Additional
Interest on an ARD Mortgage Loan or a successor REO Mortgage Loan with respect
thereto 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,
-78-
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 any groups of Pooled 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 Pooled 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 Special Servicer,
with respect to any Cross-Collateralized Mortgage Loan (or successor REO
Mortgage Loan with respect thereto), 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
Pooled Mortgage Loans in such Cross-Collateralized Group, then the inclusion of
the original of such document in the Mortgage File for any of the Pooled
Mortgage Loans constituting such Cross-Collateralized Group shall be deemed an
inclusion of such original in the Mortgage File for each such Pooled Mortgage
Loan.
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.
-79-
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 "Prudential
Commercial Mortgage Trust 2003-PWR1". 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, (iii) all other
assets included or to be included in the Trust Fund. Such assignment includes
(i) all scheduled payments of principal and interest under and proceeds of the
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 March 2003 which shall belong
and be promptly remitted to the related Pooled Mortgage Loan Seller), together
with all documents delivered or caused to be delivered hereunder with respect to
the Original Pooled Mortgage Loans by the respective 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 (or, in the case of any
1290 Avenue of the Americas REO Property, the rights of the holder of the
related Original Pooled Mortgage Loan with respect thereto); 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, subject to the rights of any related
B-Note Holder, the REO Account. This conveyance is subject, however, to the
right of the Designated Sub-Servicers pursuant to the Designated Sub-Servicer
Agreements and, in the case of any particular Original Pooled Mortgage Loan, the
rights of any other creditor(s) under any related intercreditor agreement,
co-lender agreement or similar agreement.
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
-80-
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 Certificate-
holders. 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 March 2003 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 the first sentence 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 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 J 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 delivery dates therefor set forth in the related Pooled
Mortgage Loan Purchase Agreement, the remainder of the Mortgage File and any
Additional Collateral (other than original Letters of Credit and 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
-81-
"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 Seller or
title agent as being a copy of the document deposited for recording or filing,
has been delivered to the Trustee on or before the respective delivery dates
therefor set forth in the related Pooled Mortgage Loan Purchase Agreement, 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 Pooled Mortgage Loan (exclusive of the 1290
Avenue of the Americas Pooled 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) so long as a copy of
such document or instrument, certified by the related Pooled Mortgage Loan
Seller or title agent as being a copy of the document deposited for recording or
filing, has been delivered to the Trustee on or before the respective delivery
dates therefor set forth in the related Pooled Mortgage Loan Purchase Agreement,
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 (exclusive of the 1290
Avenue of the Americas 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. None of the
Depositor, the Trustee, the Fiscal Agent, any Custodian, either Master Servicer
or the 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 definition of "Mortgage File" that has been received by the Trustee or a
Custodian on its behalf and each assignment of UCC Financing Statement 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
-82-
each such assignment of UCC Financing Statement 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 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 Servicer, 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 (exclusive, in the case of
WFB, of the 1290 Avenue of the Americas Mortgage Loan) 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, in the case of the items in clause (i) below, and
20 days after the Closing Date, in the case of the items in clause (ii) below,
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 act on behalf of the
applicable Master Servicer as a Sub-Servicer and except to the extent that any
of the following items relate to the 1290 Avenue of the Americas Pooled Mortgage
Loan): (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
-83-
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 (and, insofar as they also
relate to a B-Note Mortgage Loan, on behalf of and for the benefit of the
related B-Note Holder).
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. To the extent that the Mortgage File for
the Ballston Common Pooled Mortgage Loan or the Renaissance Pooled Mortgage Loan
relates to the related B-Note Mortgage Loan, the Trustee shall also hold such
Mortgage File in trust for the use and benefit of the related B-Note Holder.
Each Master Servicer acknowledges receipt of all of the original Letters of
Credit relating to the Serviced Pooled Mortgage Loans for which it is the
applicable Master Servicer, 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 Trustee hereby certifies to each of the
other parties hereto, each Pooled Mortgage Loan Seller and each Underwriter
that, as to each Pooled Mortgage 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, and further that a copy of each of the 1290 Avenue
of the Americas Servicing Agreement, the 1290 Avenue of the Americas
Intercreditor Agreement, the Ballston Common Co-Lender Agreement and the
Renaissance Co-Lender Agreement is in its possession or the possession of a
Custodian on its behalf.
(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 N), the Pooled Mortgage Loan Sellers, the B-Note Holders 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):
-84-
(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) (except with respect to the 1290 Avenue
of the Americas Pooled Mortgage Loan), (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 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 a copy of 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.
-85-
(c) None of the Depositor, the Certificate Administrator,
the Trustee, the Master Servicers, the Special Servicer 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 Servicer or any Custodian shall have any
responsibility for determining whether the text of any assignment or endorsement
is in proper or recordable form, whether the requisite recording of any document
is in accordance with the requirements of any applicable jurisdiction, or
whether a blanket assignment is permitted in any applicable jurisdiction.
(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) (except with respect to the 1290
Avenue of the Americas Pooled Mortgage Loan), (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
Pooled 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 as contemplated by Section 2.01(d) has not been
so delivered, or discovers that any of the documents that were delivered has not
been 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 or made pursuant to Section
4(b) or 4(d) of 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.
-86-
(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 Special Servicer 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 90 days from the Pooled Mortgage Loan
Seller's discovery of the subject Material Document Defect or Material Breach
(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 discovered or received prompt written notice thereof, within 90 days
after any earlier discovery by the Pooled Mortgage Loan Seller or 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 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 Special
Servicer and the Controlling Class Representative), 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 affected 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 regulations 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
-87-
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 Mortgage Note (or a lost note affidavit and indemnity
with a copy of the Mortgage Note) and (ii) by the first anniversary of the
Closing Date of originals or copies of the following documents (without the
presence of any factor 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, 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, in each case evidencing
a binding commitment to issue such policy); or (C) except in the case of the
1290 Avenue of the Americas Pooled Mortgage Loan, 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 Pooled
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 Pooled 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:
(s) the related Pooled Mortgage Loan Seller (at its
expense) delivers or causes to be delivered to the Trustee an Opinion
of Counsel to the effect that such Pooled Mortgage Loan Seller's
repurchase of only those Pooled Mortgage Loans as to which a Material
Breach has actually occurred without regard to the provisions of this
paragraph (the "Affected Loan(s)") and the operation of the remaining
provisions of this Section 2.03(b) will not result in an Adverse REMIC
Event or an Adverse Grantor Trust Event hereunder; and
(t) 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:
(i) the debt service coverage ratio for such
Other Crossed Loan (excluding the Affected Loan(s)) for the
four calendar quarters immediately preceding
-88-
the repurchase or replacement is not less than the least of
(A) 0.10x below the debt service coverage ratio for the
Cross-Collateralized Group (including the Affected Loan(s))
set forth in Appendix B to the Prospectus Supplement, (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 greatest 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 B to the
Prospectus Supplement plus 10%, (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
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
Trustee, as successor to 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 other party to exercise its remedies
against its Primary Collateral. If the exercise of remedies by one such party
would impair the ability of the other such party 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 the other 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
Pooled Mortgage Loan without the related Borrower's consent.
-89-
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 and interest thereon 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 Special Servicer and/or the Trustee pursuant
to this Section 2.03(b), including reasonable attorney fees and expenses, 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 March 2003
and on or prior to the related date of substitution, shall be part of the Trust
Fund. Monthly Payments due with respect to each Replacement 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
-90-
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 Special Servicer and/or the Trustee 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 Servicer shall deliver to the party
effecting the repurchase/substitution or its designee any portion of the related
Servicing File, together with any Escrow Payments, Reserve Funds and Additional
Collateral, held by or on behalf of such Master Servicer or the 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, the 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 with respect to any
Pooled Mortgage Loan. 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 replace the affected
Pooled Mortgage Loan as contemplated by this Section 2.03, then the applicable
Master Servicer shall (and the Special Servicer may) promptly notify the Trustee
and the Controlling Class Representative, and the Trustee shall notify the
Certificateholders. Thereafter, the Trustee shall (and the Special Servicer 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 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
-91-
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.
(f) The Trustee shall not consent to the assignment of the
related Pooled Mortgage Loan Seller's obligations under any Pooled Mortgage Loan
Purchase Agreement without written confirmation to the Trustee from each Rating
Agency to the effect that such assignment would not, in and of itself, result in
an Adverse Rating Event with respect to any Class of Rated Certificates.
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) The Depositor has the full corporate power and
authority to 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. This Agreement, assuming due authorization,
execution and delivery by each of the other parties hereto,
constitutes a valid, legal and binding obligation of the
Depositor, enforceable against the Depositor in accordance with
the terms hereof, 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 as was transferred to it by the related Pooled
Mortgage Loan Seller pursuant to the related Pooled 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.
-92-
(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.
(viii) No consent, approval, license, authorization or order
of any state or federal court or governmental agency or body is
required for the consummation by the Depositor of the
transactions contemplated herein, except for (A) those consents,
approvals, licenses, authorizations or orders that previously
have been obtained or where the lack of such consent, approval,
license, authorization or order would not have a material adverse
effect on the ability of the Depositor to perform its obligations
under this Agreement and (B) those filings and recordings of the
Depositor and assignments thereof that are contemplated by this
Agreement to be completed after the Closing Date.
(b) The representations and warranties of the Depositor set
forth in Section 2.04(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 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.
-93-
(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 (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, and such Master Servicer possesses all
licenses and authorizations necessary to perform its obligations
under this Agreement, except for those consents, approvals,
licenses, authorizations or orders that previously have been
obtained or where the lack of such consent, approval, license,
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.
(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
-94-
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, except where the failure to so qualify or comply
would not adversely affect such Master Servicer's ability to
perform its obligations hereunder in accordance with the terms of
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 (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, license, 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, licenses, authorizations or orders that previously
have been obtained or where the lack of such consent, approval,
license, authorization or order would not have a material adverse
effect on the ability
-95-
of such Master Servicer to perform its obligations under this
Agreement, and, except to the extent in the case of performance,
that its failure to be qualified as a foreign corporation or
licensed in one or more states is not necessary for the
performance by it of its obligations hereunder.
(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.
(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 Special
Servicer.
(a) The 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 Special Servicer is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Delaware, the 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
except where the failure to so qualify or comply would not
adversely affect the Special Servicer's ability to perform its
obligations under this Agreement.
(ii) The Special Servicer's execution and delivery of,
performance under and compliance with this Agreement will not
violate the Special Servicer's organizational documents or
constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other 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 Special
Servicer, is likely to affect materially and adversely the
ability of the Special Servicer to perform its obligations under
this Agreement.
-96-
(iii) The Special Servicer has the full power and authority
to enter into and consummate all transactions involving the
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 Special Servicer,
enforceable against the 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 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
Special Servicer's good faith and reasonable judgment, is likely
to affect materially and adversely the ability of the Special
Servicer to perform its obligations under this Agreement.
(vi) No consent, approval, license, authorization or order
of any state or federal court or governmental agency or body is
required for the consummation by the Special Servicer of the
transactions contemplated herein, except for those consents,
approvals, licenses, authorizations or orders that previously
have been obtained or where the lack of such consent, approval,
license, authorization or order would not have a material adverse
effect on the ability of the Special Servicer to perform its
obligations under this Agreement.
(vii) No litigation is pending or, to the best of the
Special Servicer's knowledge, threatened against the Special
Servicer that, if determined adversely to the Special Servicer,
would prohibit the Special Servicer from entering into this
Agreement or that, in the Special Servicer's good faith and
reasonable judgment, is likely to materially and adversely affect
the ability of the Special Servicer to perform its obligations
under this Agreement.
(viii) The 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 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 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 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.
-97-
SECTION 2.08. Representations and Warranties of the
Certificate Administrator.
(a) The Certificate Administrator 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 Certificate Administrator is duly organized, validly
existing and in good standing as a national banking association
under the laws of the United States and possesses all licenses
and authorizations necessary to the performance of its
obligations under this Agreement.
(ii) The Certificate Administrator's execution and delivery
of, performance under and compliance with this Agreement will not
violate the Certificate Administrator'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 Certificate Administrator, is likely to affect materially and
adversely the ability of the Certificate Administrator to perform
its obligations under this Agreement.
(iii) The Certificate Administrator has the requisite power
and authority to enter into and consummate all transactions
involving the Certificate Administrator 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 Certificate
Administrator, enforceable against the Certificate Administrator
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 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) The Certificate Administrator 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 Certificate Administrator's reasonable judgment, is likely
to affect materially and adversely the ability of the Certificate
Administrator 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 Certificate Administrator 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
Certificate Administrator's knowledge, threatened against the
Certificate Administrator that, if determined adversely to the
Certificate Administrator, would prohibit the Certificate
Administrator from entering into this
-98-
Agreement or that, in the Certificate Administrator's reasonable
judgment, is likely to materially and adversely affect the
ability of the Certificate Administrator to perform its
obligations under this Agreement.
(viii) The Certificate Administrator is eligible to act in
such capacity hereunder in accordance with Section 8.06.
(b) The representations and warranties of the Certificate
Administrator 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 Certificate Administrator shall be deemed
to have made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.08(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 Tax
Administrator.
(a) The Tax Administrator 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 Tax Administrator is duly organized, validly
existing and in good standing as a national banking association
under the laws of the United States and possesses all licenses
and authorizations necessary to the performance of its
obligations under this Agreement.
(ii) The Tax Administrator's execution and delivery of,
performance under and compliance with this Agreement will not
violate the Tax Administrator'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 or breach, in the reasonable judgment of the Tax
Administrator, is likely to affect materially and adversely the
ability of the Tax Administrator to perform its obligations under
this Agreement.
(iii) The Tax Administrator 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.
(iv) This Agreement, assuming due authorization, execution
and delivery by each of the other parties hereto, constitutes the
valid, legal and binding obligation of the Tax Administrator,
enforceable against the Tax Administrator 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 the rights of
creditors of
-99-
banks, and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity
or at law.
(v) The Tax Administrator 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 Tax Administrator's
reasonable judgment, is likely to affect materially and adversely
the ability of the Tax Administrator 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 Tax Administrator 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 Tax
Administrator's knowledge, threatened against the Tax
Administrator that, if determined adversely to the Tax
Administrator, would prohibit the Tax Administrator from entering
into this Agreement or that, in the Tax Administrator's
reasonable judgment, is likely to materially and adversely affect
the ability of the Tax Administrator to perform its obligations
under this Agreement.
(viii) The Tax Administrator is eligible to act in such
capacity hereunder in accordance with Section 8.06.
(b) The representations and warranties of 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.
(c) Any successor to the 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, validly existing and in
good standing 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
-100-
such laws) and to perform its obligations under this Agreement
and possesses all licenses and authorizations necessary to the
performance of 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 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
-101-
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.
(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 and possesses all licenses and
authorizations necessary to the performance of its obligations
under this Agreement.
(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.
(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
-102-
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.
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 March 2003 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 (or, in the case of any 1290 Avenue of the Americas REO
Property, the rights of the holder of the related Original Pooled Mortgage Loan
with respect thereto); (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,
subject to the rights of any related B-Note Holder, 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. The Closing Date is hereby designated as the "Startup Day"
of REMIC I within the meaning of Section 860G(a)(9) of the Code.
-103-
(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 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 Pooled 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 regulations section 1.860D-1(b)(1)).
(d) The designation for each REMIC I Regular Interest shall
be the identification number for the related Original Pooled 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(j) 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(c). 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 any particular REMIC I Regular Interest, for any Interest Accrual
Period, shall equal: (A) if the related Original Pooled Mortgage Loan is or was,
as the case may be, a 30/360 Mortgage Loan, the related Net Mortgage Rate in
effect for the related Original 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 Special Servicer (or, in the case of the 1290
Avenue of the Americas Pooled Mortgage Loan, by the 1290 Avenue of the Americas
Master Servicer or the 1290 Avenue of the Americas Special Servicer) or in
connection with any bankruptcy, insolvency or other similar proceeding involving
the related Borrower) and (B) if the related Original Pooled Mortgage Loan is or
was, as the case may be, an Actual/360 Mortgage Loan, a fraction (expressed as a
percentage), the numerator of which is the product
-104-
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 referred to in clause (B) of the second sentence
of the prior paragraph, 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 Special Servicer (or, in the case of the 1290 Avenue of the
Americas Pooled Mortgage Loan, by the 1290 Avenue of the Americas Master
Servicer or the 1290 Avenue of the Americas 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 occurs during (x) December of 2004 or December of any year thereafter
that does not immediately precede a leap year or (y) January of 2004 or January
of any year thereafter, then the amount of interest calculated with respect to
the subject 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
second sentence of the preceding paragraph shall be adjusted accordingly), with
respect to the related Pooled Mortgage Loan (or any successor REO Pooled
Mortgage Loan with respect thereto) transferred, in accordance with Section
3.04(c), from the Distribution 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 occurs during February of 2004 or February of any year
thereafter, then the amount of interest calculated with respect to the subject
REMIC I Regular Interest pursuant to 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 second
sentence of the preceding paragraph shall be adjusted accordingly), with respect
to the related Pooled Mortgage Loan (or any successor REO Pooled Mortgage Loan
with respect thereto) transferred, in accordance with Section 3.05(c), from the
Interest Reserve Account to the Distribution 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. 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 each Interest
Accrual Period is referred to herein as its "Uncertificated Accrued Interest"
for such Interest Accrual Period. 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(j),
shall be an amount (herein referred to as the "Uncertificated Distributable
Interest" with respect to such REMIC I Regular Interest for the related
-105-
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(j), 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(j).
(h) Solely for purposes of satisfying Treasury regulations
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.
(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
-106-
the parties hereto, to the extent it is within the control thereof, shall create
or permit the creation of any other "interests" in REMIC II (within the meaning
of Treasury regulations 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(i) 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. 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 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 each Interest
Accrual Period is referred to herein as its "Uncertificated Accrued Interest"
for such Interest Accrual Period. 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(i),
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
-107-
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(i), 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(i).
(h) Solely for purposes of satisfying Treasury regulations
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 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.
-108-
(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 the control thereof, shall create or permit the creation of
any other "interests" in REMIC III (within the meaning of Treasury regulations
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 Component 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 March 2005, 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 March 2005 through and including the Distribution Date in
March 2006, the aggregate of the Component Notional Amounts of REMIC III
Components ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇,
▇▇-▇, ▇▇-▇-▇, X2-C-2, X2-D-1, X2-D-2, X2-E-1, X2-E-2, X2-F-1, X2-F-2, X2-G,
X2-H-1, X2-H-2 and X2-J-2; (C) subsequent to the Distribution Date in March 2006
through and including the Distribution Date in March 2007, the aggregate of the
Component Notional Amounts of REMIC III Components ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇,
▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇, ▇▇-▇-▇, X2-C-2, X2-D-1, X2-D-2, X2-E-1,
X2-E-2, X2-F-1, X2-F-2, X2-G and X2-H-2; (D) subsequent to the Distribution Date
in March 2007 through and including the Distribution Date in March 2008, the
aggregate of the Component Notional Amounts of REMIC III Components ▇▇-▇-▇-▇,
▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇, ▇▇-▇-▇, X2-C-2, X2-D-1, X2-D-2,
X2-E-1, X2-E-2 and X2-F-2; (E) subsequent to the Distribution Date in March 2008
through and including the Distribution Date in March 2009, the aggregate of the
Component Notional Amounts of REMIC III Components ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇,
▇▇-▇-▇-▇, ▇▇-▇, ▇▇-▇-▇, ▇▇-▇-▇, ▇▇-▇-
-109-
1, X2-D-2 and X2-E-2; (F) subsequent to the Distribution Date in March 2009
through and including the Distribution Date in March 2010, the aggregate of the
Component Notional Amounts of REMIC III Components ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇,
▇▇-▇-▇, ▇▇-▇-▇, and X2-D-2; (G) subsequent to the Distribution Date in March
2010 through and including the Distribution Date in March 2011, the aggregate of
the Component Notional Amounts of REMIC III Components X2-A-2-3, X2-B and
X2-C-2; and (H) subsequent to the Distribution Date in March 2011, 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 such case, the "Pass-Through Rate" for any Interest Accrual Period shall
equal: (a) with respect to the Class A-1 Certificates, an annual rate equal to
3.669% per annum; (b) with respect to the Class A-2 Certificates, an annual rate
equal to 4.493% per annum; (c) with respect to the Class B Certificates, an
annual rate equal to 4.607% per annum; (d) with respect to the Class C
Certificates, an annual rate equal to 4.706% per annum; (e) with respect to the
Class D Certificates, an annual rate equal to 4.775% per annum; (f) with respect
to the Class E Certificates, an annual rate equal to the lesser of (i) 5.259%
per annum and (ii) the REMIC II Remittance Rate in respect of REMIC II Regular
Interests E-1 and E-2 for the subject Interest Accrual Period; (g) with respect
to the Class F Certificates, an annual rate equal to the REMIC II Remittance
Rate in respect of REMIC II Regular Interests F-1 and F-2 for the subject
Interest Accrual Period, minus 0.635%; (h) with respect to the Class G
Certificates, an annual rate equal to the REMIC II Remittance Rate in respect of
REMIC II Regular Interest G for the subject Interest Accrual Period, minus
0.142%; (i) with respect to the Class H Certificates, an annual rate equal to
4.615% per annum; (j) with respect to the Class J Certificates, an annual rate
equal to 4.615% per annum; (k) with respect to the Class K Certificates, an
annual rate equal to 4.615% per annum; (l) with respect to the Class L
Certificates, an annual rate equal to 4.615% per annum; (m) with respect to the
Class M Certificates, an annual rate equal to 4.615% per annum; (n) with respect
to the Class N Certificates, an annual rate equal to 4.615% per annum; (o) with
respect to the Class P Certificates, an annual rate equal to 4.615% 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
-110-
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 Pass-Through Rate
in effect during the subject Interest Accrual Period 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 March 2011, the Pass-Through Rate of
the Class X-2 Certificates shall equal 0% per 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 March 2005, 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-2, 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 March 2005 through
and including the Interest Accrual Period related to the Distribution Date in
March 2006, shall be calculated taking into account only the respective
Pass-Through Rates of REMIC III Components ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇,
▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇, ▇▇-▇-▇, X2-C-2, X2-D-1, X2-D-2,
X2-E-1, X2-E-2, X-2-F-1, X2-F-2, X2-G, X2-H-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 March 2006 through and including the Interest Accrual
Period related to the Distribution Date in March 2007, shall be calculated
taking into account only the respective Pass-Through Rates of REMIC III
Components ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇,
▇▇-▇-▇, X2-C-2, X2-D-1, X2-D-2, X2-E-1, X2-E-2, X-2-F-1, X2-F-2, X2-G and
X2-H-2; (D) for each Interest Accrual Period subsequent to the Interest Accrual
Period related to the Distribution Date in March 2007 through and including the
Interest Accrual Period related to the Distribution Date in March 2008, shall be
calculated taking into account only the respective Pass-Through Rates of REMIC
III Components ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇, ▇▇-▇-▇,
X2-C-2, X2-D-1, X2-D-2, X2-E-1, X2-E-2 and X2-F-2; (E) for each Interest Accrual
Period subsequent to the Interest Accrual Period related to the Distribution
Date in March 2008 through and including the Interest Accrual Period related to
the Distribution Date in March 2009, shall be calculated taking into account
only the respective Pass-Through Rates of REMIC III Components ▇▇-▇-▇-▇,
▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇-▇-▇, ▇▇-▇, ▇▇-▇-▇, X2-C-2, X2-D-1, X2-D-2 and X2-E-2;
(F) for each Interest Accrual Period subsequent to the Interest Accrual Period
related to the Distribution Date in March 2009 through and including the
Interest Accrual Period related to the Distribution Date in March 2010, shall be
calculated taking into account only the respective Pass-Through Rates of REMIC
III Components X2-A-2-2, X2-A-2-3, X2-B, X2-C-1, X2-C-2 and X2-D-2; and (G) for
each Interest Accrual Period subsequent to the Interest Accrual Period related
to the Distribution Date in March 2010 through and including the Interest
Accrual Period related to the Distribution Date in March 2011, shall be
calculated
-111-
taking into account only the respective Pass-Through Rates of REMIC III
Components X2-A-2-3, X2-B and X2-C-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 March
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 March 2005, 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 March 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 March 2006, 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 March 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 March
2007, 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 through and including the Interest
Accrual Period related to the Distribution Date in March 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 March 2008, 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 March 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-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 March 2009, 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
-112-
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 March
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 March 2009, 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 March 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 March 2010, 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 Distribution Date
through and including the Interest Accrual Period related to the Distribution
Date in March 2011, 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 March
2011, 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 March 2011, an annual rate
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 March 2011, 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-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 March 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 March 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 C-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 March 2011, 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 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 each
Interest Accrual Period after the Interest Accrual Period related to the
Distribution Date in March 2011, a rate
-113-
per annum that is equal to the fixed Pass-Through Rate for the Class C
Certificates; (m) 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 March 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 March 2009, 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 D-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 March
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 March 2010, a
rate per annum that is equal to the fixed Pass-Through Rate for the Class D
Certificates; (o) 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 March 2008, an annual rate equal to
the greater of (A) a rate per annum that is the same as the Pass-Through Rate in
effect during the subject Interest Accrual Period 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 March
2008, a rate per annum that is equal to the Pass-Through Rate in effect during
the subject Interest Accrual Period for the Class E Certificates; (p) 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 March 2009, an annual rate equal to the greater of (A)
a rate per annum that is the same as the Pass-Through Rate in effect during the
subject Interest Accrual Period 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 March 2009, a rate
per annum that is equal to the Pass-Through Rate in effect during the subject
Interest Accrual Period for the Class E Certificates; (q) 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 March
2007, an annual rate equal to the greater of (A) a rate per annum that is the
-114-
same as the Pass-Through Rate in effect during the subject Interest Accrual
Period 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 March 2007, a rate per annum that is equal
to the Pass-Through Rate in effect during the subject Interest Accrual Period
for the Class F Certificates; (r) with respect to REMIC II Regular Interest F-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 March 2008, an
annual rate equal to the greater of (A) a rate per annum that is the same as the
Pass-Through Rate in effect during the subject Interest Accrual Period 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 March 2008, a rate per annum that is equal to the
Pass-Through Rate in effect during the subject Interest Accrual Period for the
Class F Certificates; (s) with respect to REMIC II Regular Interest G, (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 March 2007, an annual rate
equal to the greater of (A) a rate per annum that is the same as the
Pass-Through Rate in effect during the subject Interest Accrual Period 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 March 2007, a rate per annum that is equal to the
Pass-Through Rate in effect during the subject Interest Accrual Period 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 March 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 March 2006, 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 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 March 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 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 March 2007, 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 March
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 March 2005, 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 March 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 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 March 2006, a rate per annum that is equal to the
fixed Pass-Through Rate for the Class J Certificates; (x) with respect to
-115-
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 March 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 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 March
2005, 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 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 regulations
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 by the Trust with respect to the Pooled Mortgage Loans that
are ARD Mortgage Loans and/or any successor REO Pooled Mortgage Loans with
respect thereto 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 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
-116-
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.
-117-
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 Serviced Mortgage Loans opposite which such Master Servicer's
name is set forth on the Pooled Mortgage Loan Schedule and any Replacement
Pooled Mortgage Loans delivered in replacement thereof as contemplated in
Section 2.03 and shall be deemed to be the "applicable Master Servicer" with
respect to any REO Property acquired in respect of any such Mortgage Loan. Each
of the Master Servicers and the Special Servicer shall service and administer
the Serviced Mortgage Loans and any Administered 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
(or, in the case of each Mortgage Loan Pair, of the Certificateholders and the
related B-Note Holder), as a collective whole, in accordance with any and all
applicable laws, the terms of this Agreement, and the terms of the respective
Serviced Mortgage Loans and, to the extent consistent with the foregoing, in
accordance with the Servicing Standard. In clarification of, and neither in
addition to nor in deletion of the duties and obligations of the Master
Servicers or the Special Servicer pursuant to this Agreement, no provision
herein contained shall be construed as an express or implied guarantee by either
Master Servicer or the 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 either Master Servicer or the 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 either Master Servicer or the Special Servicer for the reason that
any recovery to the Certificateholders (or, in the case of a Mortgage Loan Pair,
to the Certificateholders and the related B-Note Holder) in respect of a
Mortgage Loan at any time after a determination of present value recovery made
in its reasonable and good faith judgment in accordance with the Servicing
Standard by such Master Servicer or the 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 Performing Serviced Mortgage Loans for which it is the Master
Servicer, and (ii) the Special Servicer shall service and administer (x) each
Serviced Mortgage Loan (other than a Corrected Mortgage Loan) as to which a
Servicing Transfer Event has occurred, and (y) each Administered REO Property;
provided, however, that the applicable Master Servicer shall continue to (A)
make P&I Advances and Servicing Advances required hereunder with respect to any
Specially Serviced Mortgage Loans and Administered REO Properties (and related
REO Pooled Mortgage Loans) for which it is the applicable Master Servicer, (B)
receive payments, collect information and deliver reports to the Certificate
Administrator and the Trustee required hereunder with respect to any Specially
Serviced Mortgage Loans and Administered 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 Administered REO Properties for which it is the applicable Master Servicer
as are specifically provided for herein. In addition, each Master Servicer shall
notify the 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.
-118-
Certain provisions of this Article III make reference to their
applicability to Serviced Mortgage Loans, the Ballston Common B-Note Mortgage
Loan or the Renaissance B-Note Mortgage Loan; notwithstanding such explicit
references, references to "Serviced Mortgage Loans" contained in this Article
III, unless otherwise specified, shall be construed to refer also to each
Mortgage Loan Pair in its entirety (but any other term that is defined in
Article I and used in this Article III shall be construed according to such
definition without regard to this sentence).
(b) Subject to Section 3.01(a) and the terms and provisions
of this Agreement, the Master Servicers and the Special Servicer shall each have
full power and authority, acting alone or, in the case of the Master Servicers
(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 Serviced Mortgage Loans that it is
obligated to service and administer pursuant to this Agreement) and the Special
Servicer (with respect to the Specially Serviced Mortgage Loans), in its own
name or in the name of the Trustee, is hereby authorized and empowered by the
Trustee (in the case of each Serviced Pooled Mortgage Loan) or by the Trustee
and the related B-Note Holder (in the case of each Mortgage Loan Pair) to
execute and deliver, on behalf of the Certificateholders and the Trustee (in the
case of each Serviced Pooled Mortgage Loan) or on behalf of the
Certificateholders, the Trustee and the related B-Note Holder (in the case of
each 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,
3.28, 3.29 and 3.30, any and all assumptions, modifications, waivers,
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 any Serviced Mortgage Loan under the related 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, instruments relating to the custody of any collateral that now
secures or hereafter may secure any Serviced 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 the Special Servicer, furnish,
or cause to be so furnished, to such Master Servicer or the 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 the 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
the Special Servicer. Without limiting the generality of the foregoing, the
Trustee shall execute and deliver to each Master Servicer and the Special
Servicer, on or before the Closing
-119-
Date, a power of attorney substantially in the form attached as Exhibit L
hereto. Notwithstanding anything contained herein to the contrary, neither a
Master Servicer nor the Special Servicer shall, without the Trustee's written
consent: (i) initiate any action, suit or proceeding solely under the Trustee's
name without indicating such Master Servicer's or the 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 the 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 appropriate consistent with the Servicing Standard and applicable law and in
accordance with this Agreement.
(d) The relationship of each Master Servicer and the Special
Servicer to the Trustee and, unless they are the same Person, one another
(whether between a Master Servicer and the other Master Servicer or a Master
Servicer and the 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, each Mortgage Loan Pair shall be serviced and administered under this
Agreement only for as long as the Pooled Mortgage Loan included in such Mortgage
Loan Pair or any related REO Property constitutes an asset of the Trust Fund.
The parties hereto acknowledge that each Mortgage Loan Pair is subject to the
terms and conditions of the related Mortgage Loan Pair Co-Lender Agreement.
(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.
(g) The parties hereto acknowledge that the 1290 Avenue of
the Americas Pooled Mortgage Loan is subject to the terms and conditions of the
1290 Avenue of the Americas Intercreditor Agreement. The parties hereto
recognize the respective rights and obligations of the "Holders" and "Lenders"
under the 1290 Avenue of the Americas Intercreditor Agreement, including with
respect to the allocation of collections and losses on or in respect of the 1290
Avenue of the Americas Pooled Mortgage Loan and the 1290 Avenue of the Americas
Non-Pooled Loans and the making of payments to the "Holders" and "Lenders" in
accordance with the 1290 Avenue of the Americas Intercreditor Agreement.
The parties hereto further acknowledge that, pursuant to the
1290 Avenue of the Americas Intercreditor Agreement, the 1290 Avenue of the
Americas Pooled Mortgage Loan and the 1290 Avenue of the Americas Non-Pooled
Loans are to be serviced and administered by the 1290 Avenue of the Americas
Master Servicer and the 1290 Avenue of the Americas Special Servicer in
accordance with the Series 2003-TOP9 PSA or a successor 1290 Avenue of the
Americas Servicing Agreement.
-120-
Although the 1290 Avenue of the Americas Pooled Mortgage Loan
is not a Serviced Mortgage Loan, WFB and its successors as a Master Servicer
hereunder shall have certain duties and shall constitute the "applicable Master
Servicer" with respect to such Pooled Mortgage Loan.
For so long as (i) the 1290 Avenue of the Americas Pooled
Mortgage Loan or any successor REO Pooled Mortgage Loan with respect thereto is
part of the Mortgage Pool and (ii) the 1290 Avenue of the Americas Pooled
Mortgage Loan and the 1290 Avenue of the Americas Non-Pooled Mortgage Loans or
any related REO Property are being serviced and administered under any 1290
Avenue of the Americas Servicing Agreement, the applicable Master Servicer shall
use reasonable efforts, consistent with the Servicing Standard, to monitor the
performance of the 1290 Avenue of the Americas Master Servicer and the 1290
Avenue of the Americas Special Servicer, respectively, under the 1290 Avenue of
the Americas Servicing Agreement. The applicable Master Servicer shall promptly
notify the Trustee and the Controlling Class Representative of any defaults on
the part of the 1290 Avenue of the Americas Master Servicer and/or the 1290
Avenue of the Americas Special Servicer of which the applicable Master Servicer
is aware.
If there are at any time amounts due from the Trust, as holder
of the 1290 Avenue of the Americas Pooled Mortgage Loan, to any party under the
1290 Avenue of the Americas Intercreditor Agreement or the 1290 Avenue of the
Americas Servicing Agreement, the applicable Master Servicer shall notify the
Special Servicer and the Controlling Class Representative, and the applicable
Master Servicer may (in lieu of paying such amounts out of its Collection
Account) and, at the direction of the Controlling Class Representative or if and
to the extent that the deposits in such Master Servicer Collection Account are
insufficient, shall pay such amounts from its own funds (provided that any such
payment shall constitute, and be reimbursable as, a Servicing Advance).
Except as otherwise expressly addressed in Section 3.20 with
respect to modifications, waivers and amendments of the 1290 Avenue of the
Americas Pooled Mortgage Loan, if (i) the Trustee is requested to take any
action in its capacity as holder of the 1290 Avenue of the Americas Mortgage
Loan, pursuant to the 1290 Avenue of the Americas Intercreditor Agreement and/or
the 1290 Avenue of the Americas Servicing Agreement, or (ii) a Responsible
Officer of the Trustee receives actual notice of a default or event of default
on the part of any other party under the 1290 Avenue of the Americas Servicing
Agreement, then (subject to the next paragraph) the Trustee shall notify (in
writing), and act in accordance with the instructions of, the Controlling Class
Representative; provided that, if such instructions are not provided within a
reasonable time period (not to exceed five (5) Business Days) or if the Trustee
is not permitted (pursuant to the next paragraph) to follow such instructions,
then the Trustee will take such action or inaction, as directed in writing by
the Holders of the Certificates entitled to a majority of the Voting Rights, or
if no such written direction is received within a reasonable period of time (not
to exceed five (5) Business Days), as it deems to be in the best interests of
the Certificateholders (as a collective whole); and provided, further, that the
Trustee may not approve the adoption of any 1290 Avenue of the Americas
Servicing Agreement that is the successor to and/or in replacement of the Series
2003-TOP9 PSA unless it receives written confirmation (at the expense of the
party requesting such approval of the Trustee, if a Certificateholder or a party
to this Agreement, otherwise from the Collection Account) from each Rating
Agency that the servicing and administration of the 1290 Avenue of the Americas
Pooled Mortgage Loan or any related REO Property under that new servicing
agreement would not result in an Adverse Rating Event with respect to any Class
of Rated Certificates; and provided, further, that if the Trustee's consent is
sought with respect to any action under the Series 2003-TOP9 PSA or a successor
1290 Avenue of the Americas Servicing Agreement as
-121-
to which, if such action were taken under this Agreement, written confirmation
would be required from a Rating Agency that such action would not, in and of
itself, result in an Adverse Rating Event with respect to any Class of Rated
Certificates, then the Trustee shall not grant such consent without first having
obtained such written confirmation (at the expense of the party requesting such
approval of the Trustee, if a Certificateholder or a party to this Agreement,
otherwise from the Collection Account). Subject to the rights of the holders of
the 1290 Avenue of the Americas Non-Pooled Loans and the terms of the next
paragraph, the Controlling Class Representative may direct the Trustee in
writing to waive any event of default under the 1290 Avenue of the Americas
Servicing Agreement, to the extent that such event of default relates to the
1290 Avenue of the Americas Pooled Mortgage Loan. During the continuance of any
event of default or other default under the 1290 Avenue of the Americas
Servicing Agreement, the Trustee shall have the right to take all actions 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). The reasonable
costs and expenses incurred by the Trustee in connection with such enforcement
shall, at the direction of the Trustee, be paid by, and reimbursable to, the
applicable Master Servicer as Servicing Advances. The Trustee and the applicable
Master Servicer shall each promptly forward to the other such party, the
Depositor and the Controlling Class Representative all material notices or other
communications delivered to it in connection with the 1290 Avenue of the
Americas Servicing Agreement.
Notwithstanding anything herein to the contrary: (i) the
Trustee shall not 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 the prior paragraph, may (and the Trustee shall ignore and act
without regard to any such advice, direction or objection that the Trustee has
determined, in its reasonable, good faith judgment, would): (A) require or cause
the Trustee to violate applicable law, the terms of any Mortgage Loan or any
other Section of this Agreement, (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, the 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)
expand the scope of a Trustee's responsibilities under this Agreement.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) Each Master Servicer and the Special Servicer shall
undertake reasonable efforts to collect all payments required under the terms
and provisions of the respective Serviced Mortgage Loans it is obligated to
service hereunder and shall follow such collection procedures as are consistent
with the Servicing Standard; provided that neither of the Master Servicers
shall, with respect to any Serviced Mortgage Loan that constitutes an 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 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
-122-
not been forgiven in accordance with Section 3.20 and, in the reasonable
judgment of the Special Servicer, exercised in accordance with the Servicing
Standard, 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 Serviced Mortgage Loan,
provided that, for any waiver thereof under any Serviced 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 applicable 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 90 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 Special
Servicer) and shall request confirmation that the Balloon Payment will be paid
by such maturity date.
(c) Promptly following the Closing Date, the Trustee shall
send written notice to the 1290 Avenue of the Americas Master Servicer stating
that, as of the Closing Date, the Trustee is the holder of the 1290 Avenue of
the Americas Pooled Mortgage Loan and directing the 1290 Avenue of the Americas
Master Servicer to remit to the applicable Master Servicer all amounts payable
to, and to forward, deliver or otherwise make available, as the case may be, to
the applicable Master Servicer all reports, statements, documents,
communications and other information that are to be forwarded, delivered or
otherwise made available to, the holder of the 1290 Avenue of the Americas
Pooled Mortgage Loan under the 1290 Avenue of the Americas Intercreditor
Agreement and the 1290 Avenue of the Americas Servicing Agreement. The
applicable Master Servicer shall, on the day of receipt thereof, deposit into
its Collection Account all amounts received by it from the 1290 Avenue of the
Americas Master Servicer or any other party under the 1290 Avenue of the
Americas Servicing Agreement with respect to the 1290 Avenue of the Americas
Pooled Mortgage Loan, the 1290 Avenue of the Americas Pooled Mortgaged Property
or any 1290 Avenue of the Americas REO Property. In the event the applicable
Master Servicer fails to so receive any amounts due to the holder of the 1290
Avenue of the Americas Pooled Mortgage Loan during any calendar month under the
1290 Avenue of the Americas Intercreditor Agreement and the 1290 Avenue of the
Americas Servicing Agreement by 11:00 a.m. (New York City time) on the Master
Servicer Remittance Date in such calendar month, the applicable Master Servicer
shall (i) notify the 1290 Avenue of the Americas Master Servicer or other
applicable party responsible for making such remittances, as well as the trustee
under the Series 2003-TOP9 PSA or other holder of the 1290 Avenue of the
Americas Mortgage Loan currently subject to the Series ▇▇▇▇-▇▇▇▇ ▇▇▇, the
Trustee and the Controlling Class Representative hereunder, that such amounts
due with respect to the 1290 Avenue of the Americas Pooled Mortgage Loan or any
successor REO Pooled Mortgage Loan with respect thereto have not been received
(specifying the amount of such deficiency) and (ii) make a P&I Advance with
respect to such amounts as required by the terms of this Agreement subject to
and in accordance with Section 4.03. Further, in accordance with Section 4.03,
in the event the applicable Master Servicer fails to make such P&I Advance with
respect to the 1290 Avenue of the Americas Pooled Mortgage Loan or any 1290
Avenue of the Americas REO Pooled Mortgage Loan, then the Trustee or, if it
fails to do so, the Fiscal Agent, shall make such P&I Advance.
-123-
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 Serviced 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 Serviced 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 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 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 the Borrower under any Serviced Mortgage Loan, and in any
event within one (1) Business Day after any such receipt, the 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 Serviced
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 Serviced 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
-124-
Master Servicer (or, if such Mortgage Loan becomes a Specially Serviced Mortgage
Loan, the Special Servicer) shall, subject to and in accordance with the
Servicing Standard, use reasonable efforts to enforce the requirement of the
related Mortgage Loan Documents 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
Serviced 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 the related 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 any
Mortgaged Property 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 Serviced 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 the 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 Serviced 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
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 Serviced 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
-125-
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; (vii) after an
event of default, to pay the principal of, accrued interest on, and any other
amounts payable with respect to such Mortgage Loan; or (viii) to clear and
terminate the Reserve Account at the termination of this Agreement in accordance
with Section 9.01. If the Borrower under any Serviced 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 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 the Special Servicer to enable such Master
Servicer or the Special Servicer, as the case may be, to make any draw under any
Letter of Credit shall constitute a Servicing Advance, and such Master Servicer
or the 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 Serviced
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 Serviced 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 Special Servicer, the Controlling Class
Representative and any affected B-Note Holder. The applicable Master Servicer
shall promptly notify the Trustee, the Special Servicer, the Controlling Class
Representative and any affected B-Note Holder if such Master Servicer determines
that the Borrower under any Serviced 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.
-126-
(g) With respect to each Serviced 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.
SECTION 3.04. Collection Accounts, Distribution Account,
Interest Reserve Account, Excess Liquidation
Proceeds Account and the B-Note Accounts.
(a) Each of the Master Servicers shall segregate and hold
all funds collected and received by it in connection with the Pooled 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 Serviced Pooled 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 Serviced Pooled Mortgage Loans as to which it is the applicable Master
Servicer and any Administered REO Properties acquired in respect thereof (other
than in respect of scheduled payments of principal and interest due and payable
on such Serviced Pooled Mortgage Loans on or before their respective Due Dates
in March 2003 (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 Serviced Pooled Mortgage Loans, including
Principal Prepayments;
(ii) all payments (from whatever source) on account of
interest on such Serviced 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 Serviced Pooled Mortgage Loans;
(iv) all Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received with respect to such Serviced
Pooled Mortgage Loans and/or, insofar as such payments
and/or proceeds represent amounts allocable to reimburse
Servicing Advances or pay Liquidation Expenses and/or other
servicing expenses, in respect of the entire Mortgage Loan
Pair of which any such Serviced Pooled Mortgage Loan is
part;
(v) any amounts relating to such Serviced Pooled
Mortgage Loans and/or Administered REO Properties required
to be deposited by such Master Servicer or the Special
-127-
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;
(vi) any amounts relating to such Administered REO
Properties required to be transferred from any REO Account
pursuant to Section 3.16(c); and
(vii) insofar as they do not constitute Escrow Payments
or Reserve Funds, any amounts relating to such Serviced
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.
In addition, the applicable Master Servicer shall deposit in
its Collection Account, promptly upon receipt thereof, all remittances to the
Trust under the 1290 Avenue of the Americas Servicing Agreement with respect to
the 1290 Avenue of the Americas Pooled Mortgage Loan or any 1290 Avenue of the
Americas REO Property.
Furthermore, each Master Servicer shall deposit in its
Collection Account any amounts required to be deposited by such Master Servicer
pursuant to Section 3.06, as and when required by such section, in connection
with losses incurred with respect to Permitted Investments of funds held in such
Collection Account.
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 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 Compensation
payable to the 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 (vii) of the first paragraph of this Section 3.04(a) with
respect to any Serviced Pooled Mortgage Loan, the 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 Special Servicer, the 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
Special Servicer determines, consistent with the Servicing Standard, that a
particular item cannot be so endorsed
-128-
and delivered because of a restrictive endorsement. Any such amounts received by
the Special Servicer with respect to an Administered REO Property shall be
deposited by the Special Servicer into the 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 and/or any successor REO Mortgage Loans with respect
thereto included in the Mortgage Pool shall be deemed to have been deposited
into the Class V Sub-Account, and 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; provided that, subject to the next paragraph, the Interest
Reserve Account may be a sub-account of the Distribution Account. 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 2004, prior to any distributions being made
with respect to the Certificates on such Distribution Date, the Certificate
Administrator shall, with
-129-
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 from its own funds 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.
Notwithstanding that the Interest Reserve Account may be a
sub-account of the Distribution Account for reasons of administrative
convenience, the Interest Reserve Account and the Distribution Account shall,
for all purposes of this Agreement (including the obligations and
responsibilities of the Certificate Administrator hereunder), be considered to
be and shall be required to be treated as, separate and distinct accounts.
(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 by it 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 from its own funds 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 Ballston Common
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 "Ballston Common B-Note
Account"), in which the funds described below are to be deposited and held on
behalf of the Ballston Common B-Note Holder. Each account that constitutes the
Ballston Common B-Note Account shall be an Eligible Account (and may be a joint
account with funds related to the Renaissance B-Note Mortgage Loan upon the
consent of the related holders of such loans, so long as deposits into and
withdrawals from that joint account are made in the same manner as provided
herein for two separate accounts). The applicable Master Servicer shall deposit
or cause to be deposited in the Ballston Common 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 Ballston Common 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 Ballston Common
B-Note Mortgage Loan subsequent to the Closing Date:
(i) all payments (from whatever source) on account of
principal of the Ballston Common B-Note Mortgage Loan,
including Principal Prepayments;
(ii) all payments (from whatever source) on account of
interest on the Ballston Common B-Note Mortgage Loan,
including Default Interest;
-130-
(iii) all Prepayment Premiums and Yield Maintenance
Charges received in respect of the Ballston Common B-Note
Mortgage Loan;
(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 or Yield Maintenance Charges with
respect to, the Ballston Common B-Note Mortgage Loan (or any
successor REO Mortgage Loan with respect thereto);
(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 Ballston Common B-Note
Account;
(vi) any amounts required to be deposited by the
applicable Master Servicer or the Special Servicer pursuant
to Section 3.07(b) in connection with losses on the Ballston
Common B-Note Mortgage Loan (or any successor REO Mortgage
Loan with respect thereto) 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
Ballston Common B-Note Account from the REO Account pursuant
to Section 3.16(c).
Notwithstanding the foregoing requirements, the applicable
Master Servicer need not deposit into the Ballston Common B-Note Account any
amount that such Master Servicer would be authorized to withdrawal immediately
from such B-Note 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 Ballston Common
B-Note Account shall be exclusive. Without limiting the generality of the
foregoing, actual payments from the Ballston Common 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 Ballston Common Borrower that constitute
Additional Master Servicing Compensation and/or Additional Special Servicing
Compensation, need not be deposited by the applicable Master Servicer in the
Ballston Common B-Note Account. The applicable Master Servicer shall promptly
deliver to the Special Servicer any of the foregoing items received by it with
respect to the Ballston Common B-Note Mortgage Loan, if and to the extent that
such items constitute Additional Special Servicing Compensation with respect to
the Ballston Common B-Note Mortgage Loan. If the applicable Master Servicer
shall deposit in the Ballston Common B-Note Account any amount not required to
be deposited therein, it may at any time withdraw such amount from the Ballston
Common B-Note Account, any provision herein to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i)
through (iv) of the first paragraph of this Section 3.04(e), the 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 Ballston Common B-Note 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 Special Servicer, the Special Servicer shall
endorse such check to the order of the applicable Master Servicer (in its
capacity as such),
-131-
without recourse, representation or warranty, unless the Special Servicer
determines, consistent with the Servicing Standard, that a particular item
cannot be so endorsed and delivered because of a restrictive endorsement. Any
such amounts received by the Special Servicer with respect to an REO Property
relating to the Ballston Common Mortgage Loan Pair shall be deposited by the
Special Servicer into the REO Account, insofar as such amounts are allocable as
interest on, principal of, or Prepayment Premiums or Yield Maintenance Charges
with respect to the Ballston Common B-Note Mortgage Loan or any successor REO
Mortgage Loan with respect thereto, shall be remitted to the applicable Master
Servicer for deposit into the Ballston Common B-Note Account pursuant to Section
3.16(c).
(f) The applicable Master Servicer shall segregate and hold
all funds collected and received by it in connection with the Renaissance 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 "Renaissance B-Note Account"), in
which the funds described below are to be deposited and held on behalf of the
Renaissance B-Note Holder. Each account that constitutes the Renaissance B-Note
Account shall be an Eligible Account (and may be a joint account with funds
related to the Ballston Common B-Note Mortgage Loan upon the consent of the
related holders of such loans, so long as deposits into and withdrawals from
that joint account are made in the same manner as provided herein for two
separate accounts). The applicable Master Servicer shall deposit or cause to be
deposited in the Renaissance 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 Renaissance 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 Renaissance B-Note Mortgage Loan subsequent to
the Closing Date:
(i) all payments (from whatever source) on account of
principal of the Renaissance B-Note Mortgage Loan, including
Principal Prepayments;
(ii) all payments (from whatever source) on account of
interest on the Renaissance B-Note Mortgage Loan, including
Default Interest;
(iii) all Prepayment Premiums and Yield Maintenance
Charges received in respect of the Renaissance B-Note
Mortgage Loan;
(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 or Yield Maintenance Charges with
respect to, the Renaissance B-Note Mortgage Loan (or any
successor REO Mortgage Loan with respect thereto);
(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 Renaissance B-Note Account;
(vi) any amounts required to be deposited by the
applicable Master Servicer or the Special Servicer pursuant
to Section 3.07(b) in connection with losses on the
Renaissance B-Note Mortgage Loan (or any successor REO
Mortgage Loan with respect thereto) resulting from a
deductible clause in a blanket or master force placed hazard
insurance policy; and
-132-
(vii) any amounts required to be transferred to the
Renaissance B-Note Account from the REO Account pursuant to
Section 3.16(c).
Notwithstanding the foregoing requirements, the applicable
Master Servicer need not deposit into the Renaissance B-Note Account any amount
that such Master Servicer would be authorized to withdrawal immediately from
such B-Note 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 Renaissance
B-Note Account shall be exclusive. Without limiting the generality of the
foregoing, actual payments from the Renaissance 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 Renaissance Borrower that constitute Additional Master
Servicing Compensation and/or Additional Special Servicing Compensation, need
not be deposited by the applicable Master Servicer in the Renaissance B-Note
Account. The applicable Master Servicer shall promptly deliver to the Special
Servicer any of the foregoing items received by it with respect to the
Renaissance B-Note Mortgage Loan, if and to the extent that such items
constitute Additional Special Servicing Compensation with respect to the
Renaissance B-Note Mortgage Loan. If the applicable Master Servicer shall
deposit in the Renaissance B-Note Account any amount not required to be
deposited therein, it may at any time withdraw such amount from the Renaissance
B-Note Account, any provision herein to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i)
through (iv) of the first paragraph of this Section 3.04(f), the 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 Renaissance B-Note 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 Special Servicer, the 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
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 Special Servicer with respect to
an REO Property relating to the Renaissance Mortgage Loan Pair shall be
deposited by the Special Servicer into the REO Account and, insofar as such
amounts are allocable as interest on, principal of, or Prepayment Premiums or
Yield Maintenance Charges with respect to the Renaissance B-Note Mortgage Loan
or any successor REO Mortgage Loan with respect thereto, shall be remitted to
the applicable Master Servicer for deposit into the Renaissance B-Note Account
pursuant to Section 3.16(c).
(g) Funds in a Collection Account, the Distribution Account,
the Interest Reserve Account, the Excess Liquidation Proceeds Account and/or a
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.
Each Master Servicer shall give notice to the other parties hereto of the
location of any B-Note Account maintained by it as of the Closing Date and of
the new location of such B-Note Account prior to any change thereof. The
Distribution Account, Interest Reserve Account and Excess Liquidation Proceeds
Account shall each be
-133-
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.
SECTION 3.05. Permitted Withdrawals From the Collection
Accounts, the Distribution Account, the
Interest Reserve Account, the Excess
Liquidation Proceeds Account and the B-Note
Accounts.
(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 on deposit in such Collection Account
that represent Late Collections of interest and principal
Received by the Trust 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 Serviced Pooled Mortgage Loans as
to which it is the applicable Master Servicer and/or any
successor 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 on deposit in
such Collection Account that are allocable as interest on
such Pooled Mortgage Loan or REO Pooled Mortgage Loan, as
the case may be;
(iv) to pay the 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 Pooled
Mortgage Loan, Corrected Pooled Mortgage Loan and/or REO
Pooled Mortgage Loan pursuant to, and from the sources
contemplated by, Section 3.11(c), 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 (other than the 1290 Avenue of the
Americas Pooled Mortgage Loan and any 1290 Avenue of the
Americas REO Property) as to which such Master Servicer is
the applicable Master Servicer;
-134-
(v) to reimburse the Fiscal Agent, the Trustee, the
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 amounts on deposit in such
Collection Account that represent (A) payments made by the
related Borrower that are allocable to cover the item in
respect of which such Servicing Advance was made, and/or (B)
Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds and, if applicable, REO Revenues Received by the
Trust in respect of the particular Pooled Mortgage Loan or
related REO Property as to which such Servicing Advance was
made;
(vi) to reimburse the Fiscal Agent, the Trustee, the
Special Servicer or itself, as applicable, in that order,
out of such general collections on the Pooled Mortgage Loans
and any 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;
(vii) to pay the Fiscal Agent, the Trustee, the 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 amounts on deposit in
such Collection Account that represent Default Charges
Received by the Trust on the Pooled Mortgage Loans or REO
Pooled Mortgage Loans as to which the subject Advance was
made;
(viii) to the extent that such Master Servicer has
reimbursed or is reimbursing the Fiscal Agent, the Trustee,
the Special Servicer or itself, as applicable, for any
unreimbursed Advance with respect to any Pooled 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
Special Servicer or itself, as applicable, in that order,
first out of amounts on deposit in such Collection Account
that represent the remaining Liquidation Proceeds, Insurance
Proceeds and/or Condemnation Proceeds, if any, from the
Pooled Mortgage Loan or REO Property 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 Special Servicer in connection with its
inspecting, pursuant to Section 3.12(a), any Administered
REO Property or any Mortgaged Property securing a Specially
Serviced Pooled Mortgage Loan as to which such Master
Servicer is the applicable Master Servicer or (B) any other
outstanding
-135-
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 amounts on
deposit in such Collection Account that represent Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds from
the related Pooled Mortgage Loan or REO Property;
(x) to pay itself any items of Additional Master
Servicing Compensation, and to pay the 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 Serviced Pooled Mortgage Loan or related
Administered REO Property as to which such Master Servicer
is the applicable Master Servicer, such payments to be made,
first, out of amounts on deposit in such Collection Account
that represent Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds and, if applicable, REO Revenues
received with respect to such Pooled Mortgage Loan or REO
Property, as the case may be, and then, out of such general
collections on the Pooled Mortgage Loans and any 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 Pooled Mortgage Loans
and any related REO Properties as are then on deposit in
such Collection Account, servicing expenses related to the
Pooled 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 amounts on deposit in such
Collection Account that represent 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 Serviced Pooled Mortgage Loan or
Administered 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 Advance) (provided that payment
pursuant to this clause (xiii) with respect to any cost or
expense relating to the Pooled Mortgage Loan in a 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 related
Mortgage Loan Pair Co-Lender Agreement);
(xiv) to pay itself, the 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
amounts on deposit in such Collection Account that represent
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 REO
Properties as are then on deposit in such Collection
Account, any amounts payable to any such Person pursuant to
Section 6.03, Section
-136-
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 Pooled
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 Pooled Mortgage Loan in a
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 related
Mortgage Loan Pair Co-Lender Agreement);
(xv) to pay, first out of amounts on deposit in such
Collection Account that represent 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 REO Properties as are 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 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;
(xvi) to pay itself, the 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 Special Servicer, any Pooled
Mortgage Loan Seller, a Controlling Class Certificateholder,
any 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 on deposit in such Collection Account
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 pay, out of such general collections on the
Pooled Mortgage Loans any REO Properties as are then on
deposit in such Collection Account, to the 1290 Avenue of
the
-137-
Americas Master Servicer, the 1290 Avenue of the Americas
Special Servicer, or the holder of a 1290 Avenue of the
Americas Non-Pooled Loan, any amount reimbursable to such
party pursuant to the terms of the 1290 Avenue of the
Americas Intercreditor Agreement;
(xx) 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
(xxi) to clear and terminate such Collection Account at
the termination of this Agreement pursuant to Section 9.01.
In addition, but subject to the succeeding paragraphs of this
Section 3.05(a), 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 (including pursuant to clause (vi) of the preceding
paragraph) and the amounts on deposit in such Collection Account (after
withdrawing any portion of such amounts deposited in such Collection Account in
error) are 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 the requesting Master Servicer, the 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 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 the requesting 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 (xix) 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) of this
sentence) 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) of the
-138-
first paragraph of this Section 3.05(a), and any payments of interest thereon
out of a Collection Account pursuant to either of clauses (vii) and (viii) of
the first paragraph of this Section 3.05(a), 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 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 (xix) of the first paragraph of this
Section 3.05(a).
Each Master Servicer shall pay to the Special Servicer from
such Master Servicer's Collection Account on each Master Servicer Remittance
Date amounts permitted to be paid to the Special Servicer therefrom based upon
an Officer's Certificate received from the Special Servicer on the first
Business Day following the immediately preceding Determination Date, describing
the item and amount to which the 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. The Special Servicer shall keep and
maintain separate accounting for each Specially Serviced Pooled Mortgage Loan
and REO Property as to which it is the 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;
(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;
-139-
(vi) to pay itself Net Investment Earnings earned on
funds in the Distribution Account for each Collection
Period;
(vii) to pay for the cost of recording this Agreement
pursuant to Section 11.02(a); and
(viii) 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 2004), 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 of
Excess Liquidation Proceeds, 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 Section 4.01(a), 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 shall withdraw from the Excess
Liquidation Proceeds Account and deposit in the Distribution Account, for
distribution on such Distribution Date, any and all Excess Liquidation Proceeds
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 Ballston Common B-Note Account for any of the
following purposes (the order set forth below not constituting an order of
priority for such withdrawals):
-140-
(i) to remit to the Ballston Common B-Note Holder the
amounts to which the Ballston Common B-Note Holder is
entitled in accordance with the last paragraph of this
Section 3.05(f), as and when required by such paragraph;
(ii) to pay to itself earned and unpaid Master
Servicing Fees in respect of the Ballston Common B-Note
Mortgage Loan or any successor REO Mortgage Loan with
respect thereto;
(iii) to pay to the Special Servicer earned and unpaid
Special Servicing Fees in respect of the Ballston Common
Mortgage Loan Pair or any successor REO Mortgage Loans with
respect thereto;
(iv) to pay the Special Servicer (or, if applicable,
any predecessor thereto) earned and unpaid Workout Fees and
Liquidation Fees to which it is entitled with respect to the
Ballston Common B-Note Mortgage Loan or any successor REO
Mortgage Loan with respect thereto pursuant to, and from the
sources contemplated by, the second and third paragraphs of
Section 3.11(c);
(v) to pay the 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
Ballston Common Pooled Mortgage Loan or any successor REO
Mortgage Loan with respect thereto, but which is payable out
of amounts collected on or with respect to the Ballston
Common B-Note Mortgage Loan or any successor REO Mortgage
Loan with respect thereto, pursuant to the second and third
paragraphs of Section 3.11(c);
(vi) to reimburse itself, the Special Servicer, the
Trustee or the Fiscal Agent, as applicable, for any
unreimbursed Servicing Advances made thereby (in each case,
with its own funds) with respect to the Ballston Common
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 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 Ballston Common Mortgage Loan Pair or
any related REO Property;
(viii) to pay itself any items of Additional Master
Servicing Compensation, and to pay to the Special Servicer
any items of Additional Special Servicing Compensation, in
each case on deposit in the Ballston Common B-Note Account
from time to time;
(ix) to pay any unpaid Liquidation Expenses incurred
with respect to the Ballston Common 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 Ballston Common
Mortgage Loan Pair or any related REO Property, which
expenses would, if advanced, constitute Nonrecoverable
Servicing Advances (but only to the
-141-
extent that amounts specifically allocable to such purpose
have not been deposited in the applicable Collection
Account);
(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 Ballston Common
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, 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(b), or Section 8.13, as applicable, in
connection with the Ballston Common 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 itself, the Special Servicer, the
Trustee, the Fiscal Agent or the Depositor, as the case may
be, any amount specifically required to be paid to such
Person at the expense of the Ballston Common 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 Ballston Common B-Note
Account at the termination of this Agreement pursuant to
Section 9.01 or at such time as the Ballston Common Mortgage
Loan Pair or any related REO Property is no longer serviced
hereunder.
If amounts on deposit in the Ballston Common B-Note Account at
any particular time (after withdrawing any portion of such amounts deposited in
the Ballston Common 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
Ballston Common Co-Lender Agreement, any such payment, reimbursement or
remittance shall be made from the funds on deposit in the Ballston Common 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 Ballston Common B-Note Account, and any payments
of interest thereon out of the Ballston Common B-Note Account, 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 Special Servicer.
The applicable Master Servicer shall pay to the Special
Servicer from the Ballston Common B-Note Account amounts permitted to be paid to
it therefrom promptly upon receipt of a certificate of a Servicing Officer of
the Special Servicer describing the item and amount to which the Special
Servicer 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.
-142-
The Trustee, the Fiscal Agent, the Depositor, the Master
Servicer and the Special Servicer shall in all cases have a right prior to the
Ballston Common B-Note Holder to any particular funds on deposit in the Ballston
Common 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 Ballston Common B-Note
Account pursuant to the express terms of this Agreement and the Ballston Common
Co-Lender Agreement.
The applicable Master Servicer shall withdraw from the
Ballston Common B-Note Account and pay to the Ballston Common B-Note Holder (in
accordance with the Ballston Common B-Note Holder's written instructions) all
amounts received on or with respect to the Ballston Common B-Note Mortgage Loan
or any successor REO Mortgage Loan with respect thereto that are deposited into
the Ballston Common 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 Ballston Common B-Note Account, to the extent such
amounts represent collections of Monthly Payments received from the Ballston
Common 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 Ballston Common B-Note Account.
(g) The applicable Master Servicer may, from time to time,
make withdrawals from the Renaissance 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 Renaissance B-Note Holder the amounts to
which the Renaissance B-Note Holder is entitled in accordance
with the last paragraph of this Section 3.05(g), as and when
required by such paragraph;
(ii) to pay to itself earned and unpaid Master Servicing
Fees in respect of the Renaissance B-Note Mortgage Loan or any
successor REO Mortgage Loan with respect thereto;
(iii) to pay to the Special Servicer earned and unpaid
Special Servicing Fees in respect of the Renaissance Mortgage
Loan Pair or any successor REO Mortgage Loans with respect
thereto;
(iv) to pay the Special Servicer (or, if applicable, any
predecessor thereto) earned and unpaid Workout Fees and
Liquidation Fees to which it is entitled with respect to the
Renaissance B-Note Mortgage Loan or any successor REO Mortgage
Loan with respect thereto pursuant to, and from the sources
contemplated by, the second and third paragraphs of Section
3.11(c);
(v) to pay the 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
Renaissance Pooled Mortgage Loan or any successor REO Mortgage
Loan with respect thereto, but which is payable out of amounts
collected on or with respect to the Renaissance B-Note
-143-
Mortgage Loan or any successor REO Mortgage Loan with respect
thereto, pursuant to the second and third paragraphs of Section
3.11(c);
(vi) to reimburse itself, the Special Servicer, the Trustee
or the Fiscal Agent, as applicable, for any unreimbursed
Servicing Advances made thereby (in each case, with its own
funds) with respect to the Renaissance 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 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
Renaissance Mortgage Loan Pair or any related REO Property;
(viii) to pay itself any items of Additional Master
Servicing Compensation, and to pay to the Special Servicer any
items of Additional Special Servicing Compensation, in each case
on deposit in the Renaissance B-Note Account from time to time;
(ix) to pay any unpaid Liquidation Expenses incurred with
respect to the Renaissance 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 Renaissance 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);
(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 Renaissance 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, 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(b), or Section
8.13, as applicable, in connection with the Renaissance 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 itself, the Special Servicer, the Trustee,
the Fiscal Agent or the Depositor, as the case may be, any amount
specifically required to be paid to such Person at the expense of
the Renaissance B-Note Holder under any provision of this
Agreement to which reference is not made in any other clause of
this Section 3.05(g), it being acknowledged that this clause
(xiii) shall not be construed to modify any limitation otherwise
set forth in this Agreement
-144-
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 Renaissance B-Note Account
at the termination of this Agreement pursuant to Section 9.01 or
at such time as the Renaissance Mortgage Loan Pair or any related
REO Property is no longer serviced hereunder.
If amounts on deposit in the Renaissance B-Note Account at any
particular time (after withdrawing any portion of such amounts deposited in the
Renaissance 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 Renaissance
Co-Lender Agreement, any such payment, reimbursement or remittance shall be made
from the funds on deposit in the Renaissance 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
Renaissance B-Note Account, and any payments of interest thereon out of the
Renaissance B-Note Account, 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 Special Servicer.
The applicable Master Servicer shall pay to the Special
Servicer from the Renaissance B-Note Account amounts permitted to be paid to it
therefrom promptly upon receipt of a certificate of a Servicing Officer of the
Special Servicer describing the item and amount to which the Special Servicer 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 Servicer shall in all cases have a right prior to the
Renaissance B-Note Holder to any particular funds on deposit in the Renaissance
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 Renaissance B-Note Account
pursuant to the express terms of this Agreement and the Renaissance Co-Lender
Agreement.
The applicable Master Servicer shall withdraw from the
Renaissance B-Note Account and pay to the Renaissance B-Note Holder (in
accordance with the Renaissance B-Note Holder's written instructions) all
amounts received on or with respect to the Renaissance B-Note Mortgage Loan or
any successor REO Mortgage Loan with respect thereto that are deposited into the
Renaissance 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(g)) on the next Business Day following the
deposit thereof into the Renaissance B-Note Account, to the extent such amounts
represent collections of Monthly Payments received from the Renaissance 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 Renaissance B-Note Account.
-145-
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) that holds its Collection Account or any B-Note Account,
Servicing Account or Reserve Account maintained by it, the Special Servicer may
direct (pursuant to a standing order or otherwise) any depositary institution
(including the Certificate Administrator) that holds the REO Account, and the
Certificate Administrator may direct (pursuant to a standing order or otherwise)
any depositary institution that holds the Distribution Account, the Interest
Reserve Account or the Excess Liquidation Proceeds Account to invest, or if any
of the Master Servicers, the Special Servicer or the Certificate Administrator,
as appropriate, is such depositary institution, such Master Servicer, the
Special Servicer or the Certificate Administrator, as the case may be, 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
Investment 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 11:00 a.m., New York City time, 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 Investment Account shall remain uninvested unless and
until the applicable Master Servicer, the Special Servicer or the Certificate
Administrator, 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 Investment 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 or any B-Note Account,
Servicing Account or Reserve Account maintained by it), the Special Servicer
(with respect to Permitted Investments of amounts in the REO Account), and the
Certificate Administrator (with respect to Permitted Investments of amounts in
the Distribution Account, the Interest Reserve Account or the Excess Liquidation
Proceeds Account) acting on behalf of the Trustee, shall (and Trustee hereby
designates the applicable Master Servicer, the Special Servicer or the
Certificate Administrator, 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, the Special Servicer
or the Certificate Administrator shall constitute "control" by a Person
designated by, and acting on behalf of, the Trustee for purposes of Revised
Article 8 (1994 Revision) of the UCC. If amounts on deposit in an Investment
Account are at any time invested in a Permitted Investment payable on demand,
the party hereunder that maintains such Investment Account (whether it is a
Master Servicer, the Special Servicer or the Certificate Administrator), shall:
(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
-146-
such Master Servicer, the Special Servicer or the
Certificate Administrator, as the case may be, that
such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on
deposit in such Investment Account.
(b) Whether or not a Master Servicer directs the investment
of funds in its Collection Account or in any B-Note 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 Investment 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. 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 Investment Account for each Collection
Period, and subject to the requirements of applicable law or the terms of the
related Serviced Mortgage Loan(s) 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 the Special Servicer
directs the investment of funds in the REO Account, interest and investment
income realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for such Investment Account for each Collection Period, shall
be for the sole and exclusive benefit of the Special Servicer and shall be
subject to its withdrawal in accordance with Section 3.16(b). Whether or not the
Certificate Administrator directs the investment of funds in the Distribution
Account, the Interest Reserve Account or the Excess Liquidation Proceeds
Account, interest and investment income realized on funds deposited therein, to
the extent of the Net Investment Earnings, if any, for each such Investment
Account for each Collection Period, shall be for the sole and exclusive benefit
of the Certificate Administrator and shall be subject to its withdrawal in
accordance with Section 3.05. If any loss shall be incurred in respect of any
Permitted Investment on deposit in any Investment Account, the party hereunder
that maintains such Investment Account (whether it is a Master Servicer, the
Special Servicer or the Certificate Administrator), 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 Investment 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 Serviced Mortgage
Loan or applicable law).
(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 the party hereunder that maintains such
Investment Account (whether it is a Master Servicer, the Special Servicer or the
Certificate Administrator) 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 party
hereunder that maintains such Investment Account (whether it is a Master
Servicer, the Special Servicer or the Certificate Administrator). This provision
is in no way intended to limit any actions that a Master Servicer, the Special
Servicer or the Certificate Administrator may take in this regard at its own
expense.
-147-
(d) Notwithstanding the investment of funds held in any
Investment Account, for purposes of the calculations hereunder, including the
calculation of the Available Distribution Amount, the Master Servicer Remittance
Amounts and the monthly amounts payable to the respective B-Note Holders, 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 Performing Serviced 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 avoid the application of any co-insurance clause and (y)
all other insurance coverage (including but not limited to coverage for damage
resulting from 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 conditions and/or limitations
shall apply:
(A) the applicable Master Servicer shall not be
required to maintain any earthquake or environmental
insurance policy on any Mortgaged Property securing a
Performing Serviced Mortgage Loan unless such insurance
policy was in effect at the time of the origination of such
Mortgage Loan pursuant to the terms of the related Loan
Documents 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 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 on
an Administered REO Property so long as such insurance is
available at commercially reasonable rates);
(B) if and to the extent that any Performing Serviced
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 the Borrower under any
Performing Serviced Mortgage Loan 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;
-148-
(D) in no event shall the applicable Master Servicer be
required to cause the Borrower under any Performing Serviced
Mortgage Loan 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 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 the Borrower under any Performing Serviced
Mortgage Loan 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; and
(F) to the extent the applicable Master Servicer itself
is required to maintain insurance that the Borrower under
any Performing Serviced Mortgage Loan 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).
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 Performing Serviced Mortgage Loan
that has a Stated Principal Balance in excess of $2,500,000, obtain the approval
or disapproval of the Special Servicer (and, in connection therewith, the
Special Servicer shall be required to comply with any applicable provisions of
Section 3.24, Section 3.27, Section 3.28, Section 3.29 or Section 3.30). The
applicable Master Servicer shall be entitled to rely on the determination of the
Special Servicer made in connection with such approval or disapproval. The
Special Servicer 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 seven Business Days of the 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 Special
Servicer, the Trustee and the Controlling Class Representative if the applicable
Master Servicer determines that the Borrower under any Performing Serviced
Mortgage Loan 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 related Mortgage Loan Documents and such
failure materially and adversely affects such Mortgage Loan and/or the interest
of the Trust in the related Mortgaged Property or if the Borrower under any
Performing Serviced Mortgage Loan has notified the applicable Master Servicer in
writing that the Borrower does not intend to maintain such insurance and the
applicable Master Servicer
-149-
has determined that such failure materially and adversely affects such 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 Administered REO Property, the Special Servicer shall
use reasonable efforts, consistent with the Servicing Standard, to maintain
(and, in the case of Specially Serviced Mortgage Loans, the Special Servicer
shall itself maintain, subject to the right of the Special Servicer to (x)
direct the applicable Master Servicer to make a Servicing Advance for the costs
associated with coverage that the 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 such Mortgage Loan or 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 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 (12) months
or, with respect to Mortgage Loans with initial principal balances greater than
$35 million, at least eighteen (18) months, in each case if so required pursuant
to the related Mortgage Loan Documents; provided, however, that neither the
applicable Master Servicer nor the Special Servicer shall be required in any
event to maintain or obtain the insurance coverage otherwise described by this
paragraph beyond what is available at commercially reasonable rates 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 Serviced Mortgage
Loan), or shall name the Trustee as the insured, with loss payable to the
Special Servicer on behalf of the Trustee (in the case of insurance maintained
in respect of an Administered REO Property). Any amounts collected by a Master
Servicer or the 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 or a related B-Note Account, as
appropriate in accordance with Section 3.04, subject to withdrawal pursuant to
Section 3.05, in the case of amounts received in respect of a Serviced Mortgage
Loan, or in the REO Account, subject to withdrawal pursuant to Section 3.16(c),
in the case of amounts received in respect of an Administered REO Property. Any
cost incurred by a Master Servicer or the 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 Serviced 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 or Special Servicer on
behalf of the Trust to enforce any obligations of the related Borrower under
such Mortgage Loan. Costs to a
-150-
Master Servicer or the Special Servicer of maintaining insurance policies
pursuant to this Section 3.07 shall be paid by and reimbursable to such Master
Servicer or the Special Servicer, as the case may be, as a Servicing Advance.
(b) If (i) a Master Servicer or the Special Servicer shall
obtain and maintain, or cause to be obtained and maintained, a blanket policy or
master force-placed policy insuring against hazard losses on all of the Serviced
Mortgage Loans or Administered REO Properties, as applicable, as to which it is
the applicable Master Servicer or the Special Servicer, as the case may be,
then, to the extent such policy (A) is obtained from a Qualified Insurer having
the Required Claims-Paying Ratings, and (B) provides protection equivalent to
the individual policies otherwise required herein and in the Mortgage Loan
Documents or (ii) a Master Servicer or the Special Servicer has long-term
unsecured debt obligations that are rated not lower than "A" by S&P and "A" by
Fitch and such Master Servicer or the Special Servicer, as the case may be,
self-insures for its obligation to maintain, and deposits into its Collection
Account (any such deposit to be deemed to constitute "Insurance Proceeds") the
amount of any loss to the Trust that would have been covered by, the individual
policies otherwise required, such Master Servicer or the 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 the Special Servicer, as the case may be,
whichever maintains such policy, shall, if there shall not have been maintained
on any Mortgaged Property securing a Serviced Mortgage Loan or any Administered
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 a B-Note
Mortgage Loan, in the applicable B-Note Account) maintained by the applicable
Master Servicer, from its own funds without any right of reimbursement from the
Trust, 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 Serviced 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). The Master Servicers and the Special
Servicer shall each prepare and present, on behalf of itself, the Trustee and
Certificateholders and, if applicable, any affected 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 Performing Serviced Mortgage Loan
that is subject to an Environmental Insurance Policy, if the applicable Master
Servicer has actual knowledge of any event (an "Insured Environmental Event")
giving rise to a claim under an Environmental Insurance Policy, such Master
Servicer shall notify the 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 Administered REO Property that is subject to an Environmental Insurance
Policy, if the Special Servicer has actual knowledge of any event giving rise to
a claim under an Environmental Insurance Policy, the 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
thereunder. Any legal fees or other out-of-
-151-
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 Special Servicer) shall be paid by, and
reimbursable to, the applicable Master Servicer as a Servicing Advance.
(d) The Master Servicers and the Special Servicer shall each
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 Administered REO Properties 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 the Special Servicer shall be
deemed to have complied with the foregoing provision if an Affiliate thereof has
such fidelity bond coverage and, by the terms of such fidelity bond, the
coverage afforded thereunder extends to such Master Servicer or the Special
Servicer, as the case may be. Such fidelity bond shall provide that it may not
be canceled without ten days' prior written notice to the Trustee. So long as
the long-term unsecured debt obligations of a Master Servicer are rated not
lower than "BBB" by S&P 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.
The Master Servicers and the Special Servicer shall each 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 Administered REO Properties 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 the Special Servicer shall be deemed to have complied with
the foregoing provisions if an Affiliate thereof has such insurance and, by the
terms of such policy or policies, the coverage afforded thereunder extends to
such Master Servicer or the Special Servicer, as the case may be. Any such
errors and omissions policy shall provide that it may not be canceled without
ten days' prior written notice to the Trustee. So long as the long-term
unsecured debt obligations of a Master Servicer are rated not lower than "BBB"
by S&P and "A" by Fitch, such Master Servicer may self-insure with respect to
the errors and omissions coverage required as 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 Serviced 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 related Mortgage Loan Documents, the applicable Master Servicer
(with respect to a Performing Serviced Mortgage Loan) or the 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
-152-
the Mortgaged Property is transferred in violation of the related Mortgage Loan
Documents or (ii) if in the best economic interest of the Trust and, if
applicable, any affected 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 conditions and/or 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 Performing Serviced Mortgage
Loan that is a Pooled Mortgage Loan, unless such Master Servicer has
obtained the consent of the Special Servicer (it being understood and
agreed that (1) the applicable Master Servicer shall promptly provide
the 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 Special Servicer
may reasonably request in order to withhold or grant any such consent,
(2) the 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, Section 3.28, Section 3.29 or Section
3.30, as applicable) and (3) if any such consent has not been
expressly denied within seven Business Days of the 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) if the affected Performing Serviced Mortgage Loan
is a Pooled Mortgage Loan that, together with all other Pooled
Mortgage Loans, if any, that are in the same Cross-Collateralized
Group as such Pooled Mortgage Loan or have the same Borrower as such
Pooled Mortgage Loan or have Borrowers that are known to be affiliated
with the Borrower under such Pooled Mortgage Loan, is one of the ten
largest Pooled 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 a Pooled Mortgage Loan that is part of a Mortgage Loan Pair,
neither the applicable Master Servicer (with respect to a Serviced
Pooled Mortgage Loan other than a Specially Serviced Pooled Mortgage
Loan) nor the Special Servicer (with respect to a Specially Serviced
Pooled 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 Performing Serviced Mortgage Loan) nor the 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 Special Servicer
(pursuant to the approval procedures described in clause (A) above) or
(y) in the case of the Special Servicer, it has obtained the consent
of the Controlling Class Representative if and to the extent required
under Section 3.24);
-153-
(D) subject to the related Mortgage Loan Documents
and applicable law, neither the applicable Master Servicer (with
respect to a Performing Serviced Mortgage Loan) nor the 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 Serviced 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 any affected B-Note Holder (it being understood and agreed that,
except as expressly provided herein, neither the applicable Master
Servicer nor the Special Servicer shall be obligated to cover or
assume any such costs or expenses);
(E) neither the applicable Master Servicer (with
respect to a Performing Serviced Mortgage Loan) nor the 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 Serviced Mortgage Loan,
consent or agree to any modification, waiver or amendment of any term
or provision of such Serviced 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 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 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 Special Servicer if (a) the assignment
and assumption is permitted under the related Mortgage Loan Documents and (b)
the conditions to the assignment and assumption that are set forth in the
related 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 related
Mortgage Loan Documents that do not include any other approval or exercise).
If the provisions of any Serviced Mortgage Loan expressly
permits the further encumbrance of the related 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
related Mortgage Loan Documents, the applicable Master Servicer (with respect to
a Performing Serviced Mortgage Loan) or the 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 related
Mortgaged Property is encumbered in the violation of the related Mortgage Loan
Documents or (ii) if in the best economic interest of the Trust and, if
applicable, any affected 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 conditions and/or restrictions shall apply:
-154-
(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 with respect to any Performing
Serviced Mortgage Loan unless such Master Servicer has obtained the
consent of the Special Servicer (it being understood and agreed that
(1) the applicable Master Servicer shall promptly provide the Special
Servicer with notice of any such 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 Special Servicer may reasonably
request in order to withhold or grant any such consent, (2) the 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, Section 3.28, Section 3.29 or Section 3.30, as
applicable) and (3) if any such consent has not been expressly denied
within seven Business Days of the 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 Performing Serviced Mortgage Loan) nor the 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 that such action would not result in
an Adverse Rating Event with respect to any Class of Rated Certificates
from Fitch, with respect to any Serviced Pooled Mortgage Loan that is
one of the ten largest Pooled Mortgage Loans then in the Trust Fund, by
principal balance, and from S&P, with respect to any Serviced Pooled
Mortgage Loan that (1) represents 2% or more of the then aggregate
principal balance of all of the Pooled Mortgage Loans then in the Trust
Fund, (2) is one of the ten largest Pooled Mortgage Loans then in the
Trust Fund by principal balance, (3) has an aggregate loan-to-value
ratio (including existing and proposed additional debt) that is equal
to or greater than 85% or (4) has an aggregate debt service coverage
ratio (including the debt service on the existing and proposed
additional debt) that is less than 1.2x;
(C) subject to the related Mortgage Loan Documents
and applicable law, neither the applicable Master Servicer (with
respect to a Performing Serviced Mortgage Loan) nor the 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
Serviced 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
any affected B-Note Holder (it being understood and agreed that neither
the applicable Master Servicer nor the Special Servicer shall be
obligated to cover or assume any such costs or expenses);
(D) neither the applicable Master Servicer (with
respect to a Performing Serviced Mortgage Loan) nor the 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 Serviced Mortgage Loan, consent or agree to
any modification, waiver or amendment of any term or provision of such
Serviced Mortgage Loan that would result in an Adverse REMIC
-155-
Event with respect to any REMIC Pool or any Adverse Grantor Trust
Event with respect to either Grantor Trust Pool; and
(E) the 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 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 Special Servicer if (a) the further
encumbrance is permitted under the related Mortgage Loan Documents and (b) the
conditions to the further encumbrance that are set forth in the related 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 related 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 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, any B-Note Holder or any other Person (i) with respect to
the 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 conditions
and/or restrictions set forth in clauses (A) through (F) of the first paragraph
of this Section 3.08(a) or clauses (A) through (E) of the third paragraph of
this Section 3.08(a), as the case may be.
(b) In connection with any permitted assumption of any
Serviced Mortgage Loan or waiver of a "due-on-sale" or "due-on-encumbrance"
clause thereunder, the applicable Master Servicer (in the case of a Performing
Serviced Mortgage Loan) or the 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 the Borrower under a Performing
Serviced Mortgage Loan, to the extent such transfer is allowed under the terms
of the related Mortgage Loan Documents (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 related Mortgage Loan Documents that
do not include any other approval or exercise of discretion), including any
consent to transfer to any subsidiary or affiliate of such Borrower or to a
person acquiring less than a majority interest in such Borrower; provided,
however, that, subject to the terms of the related Mortgage Loan Documents and
applicable law, if (i) the affected Serviced Mortgage Loan is a Pooled Mortgage
Loan that, together with all other Pooled Mortgage Loans, if any, that are in
the same Cross-Collateralized Group as such Pooled Mortgage Loan or have the
same Borrower as such Pooled Mortgage Loan or have Borrowers that are known to
be affiliated with the Borrower under such Pooled 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 ten Pooled 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 applicable Master Servicer
shall not consent to such transfer unless and until it has received written
confirmation
-156-
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 related
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 connection with such transfers of interest as
Additional Master Servicing Compensation.
SECTION 3.09. Realization Upon Defaulted Serviced Mortgage
Loans.
(a) The 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 Serviced
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 neither Master Servicer shall,
with respect to any Serviced Mortgage Loan that is an 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 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
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. In connection with the foregoing, in the event of a default
under any Serviced 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 Special Servicer shall consult
Independent counsel regarding the order and manner in which the Special Servicer
should foreclose upon or comparably proceed against such properties. The Special
Servicer may direct the applicable Master Servicer to advance, as contemplated
by Section 3.19(b), 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 applicable 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 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
Serviced Mortgage Loan, which Liquidation Expenses were outstanding at the time
such proceeds are received. Nothing contained in this Section 3.09 shall be
construed so as to require the Special Servicer, on behalf of the Trust, to make
a bid on any Mortgaged Property at a foreclosure sale or similar proceeding that
is in excess of the fair market value of such property, as determined by the
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 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 Serviced Mortgage Loan, whether for purposes of bidding at
foreclosure or otherwise, such Master Servicer or the Special Servicer (as the
case may be) is authorized
-157-
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 Serviced Mortgage Loan. The Special
Servicer and the Master Servicers shall not foreclose upon or otherwise
comparably convert, including by taking title thereto, any real property or
other collateral securing the 1290 Avenue of the Americas Pooled Mortgage Loan.
(b) Notwithstanding the foregoing provisions of this Section
3.09, no Mortgaged Property shall be acquired by the Special Servicer on behalf
of the Trust (and, in the case of a Mortgage Loan Pair, the related B-Note
Holder) 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
regulations 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 Special
Servicer shall not acquire any personal property on behalf of the Trust (and, in
the case of a Mortgage Loan Pair, the related B-Note Holder) 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 Special Servicer; or
(ii) the Special Servicer shall have obtained an
Opinion of Counsel (the cost of which shall be covered by,
and reimbursable as, a Servicing Advance) to the effect that
the holding of such personal property as part of the Trust
Fund will not 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 Special Servicer shall not, on behalf of the Trust (and, in the case
of a Mortgage Loan Pair, the related 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 Special Servicer, exercised in accordance with the
Servicing Standard, be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law, unless:
(i) the Special Servicer has previously determined in
accordance with the Servicing Standard, based on a Phase I
Environmental Assessment (and any additional environmental
testing that the Special Servicer deems necessary and
prudent) of such Mortgaged Property conducted by an
Independent Person who regularly conducts Phase I
Environmental Assessments and performed during the 12-month
period preceding any such acquisition of title or other
action, that such Mortgaged Property is in compliance with
applicable environmental
-158-
laws and regulations and there are no circumstances or
conditions present at the Mortgaged Property relating to the
use, management or disposal of Hazardous Materials for which
investigation, testing, monitoring, containment, clean-up or
remediation could be required under any applicable
environmental laws and regulations; or
(ii) in the event that the determination described in
clause (c)(i) above cannot be made, the Special Servicer has
previously determined in accordance with the Servicing
Standard, on the same basis as described in clause (c)(i)
above, 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 a Mortgaged Property securing a Mortgage Loan Pair,
to the related 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 a Mortgaged Property securing a
Mortgage Loan Pair, to the related B-Note Holder, to be
performed at the 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 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 a
Mortgaged Property securing a Mortgage Loan Pair, the related 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 a Mortgaged Property securing a Mortgage Loan Pair,
out of the related 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 Serviced Mortgage Loan,
the Special Servicer shall take such action as is in accordance with the
Servicing Standard (other than proceeding against the Mortgaged Property) and,
at such time as it deems appropriate, may, on behalf of the Trust and, if
applicable, any affected B-Note Holder, release all or a portion of such
Mortgaged Property from the lien of the related Mortgage; provided that, if such
Serviced 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 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 Special Servicer's
good faith judgment, was inconsistent with the Servicing Standard.
-159-
(e) The Special Servicer shall report to the Trustee, the
applicable Master Servicer and the Controlling Class Representative (and, in the
case of a Mortgaged Property securing a Mortgage Loan Pair, the related B-Note
Holder) monthly in writing as to any actions taken by the Special Servicer with
respect to any Mortgaged Property as to which neither of the conditions set
forth in clauses (i) and (ii) of the first paragraph of Section 3.09(c) has been
satisfied, in each case until the earliest to occur of satisfaction of either of
such conditions, release of the lien of the related Mortgage on such Mortgaged
Property and the related Serviced Mortgage Loan's (or, in the case of a Mortgage
Loan Pair, each of the related Serviced Mortgage Loan's) becoming a Corrected
Mortgage Loan.
(f) The Special Servicer shall have the right to determine,
in accordance with the Servicing Standard, with respect to any Specially
Serviced Mortgage Loan, 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 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 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 Serviced Mortgage Loan
for which it is the applicable Master Servicer, or Mortgaged Property securing a
Serviced 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 Special Servicer and the Trustee.
(h) As soon as the Special Servicer (or, in the case of the
1290 Avenue of the Americas Pooled Mortgage Loan or any related REO Property,
the applicable Master Servicer) makes a Final Recovery Determination (such
determination to be made in consultation with the Controlling Class
Representative (or, in the case of a B-Note Mortgage Loan or the related
Mortgaged Property, the related B-Note Holder) and the related calculations to
be subject to the approval of such Controlling Class Representative (or 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 (unless it is the one making the determination) and the Controlling
Class Representative (and, in the case of a B-Note Mortgage Loan or the related
Mortgaged Property, the related B-Note Holder). The Special Servicer (or, in the
case of the 1290 Avenue of the Americas Pooled Mortgage Loan or any related REO
Property, the applicable Master 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 (unless
it is the one making the determination) and the Controlling Class Representative
no later than ten Business Days following such Final Recovery Determination. For
purposes of making a Final Recovery Determination, with respect to the 1290
Avenue of the Americas Pooled Mortgage Loan or any related REO Property, the
applicable Master Servicer shall be entitled and required to rely on any
comparable determination made by the 1290 Avenue of the Americas Special
Servicer.
-160-
SECTION 3.10. Trustee to Cooperate; Release of Mortgage
Files.
(a) Upon the payment in full of any Serviced 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
a B-Note Mortgage Loan, the Master Servicer shall promptly so notify the related
B-Note Holder and request delivery to it or its designee of the Mortgage Note
for such B-Note Mortgage Loan (such notice and request to be effected by
delivering to the Trustee and, in the case of a B-Note Mortgage Loan, the
related B-Note Holder 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 a B-Note
Mortgage Loan, if applicable, the related 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 a B-Note Mortgage Loan, in
the related B-Note Account, pursuant to Section 3.04 have been or will be so
deposited). Upon receipt of such Request for Release, the Trustee and, in the
case of a B-Note Mortgage Loan, if applicable, the related 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, a B-Note Account or the
Distribution Account.
(b) If from time to time, and as appropriate for servicing
or foreclosure of any Serviced Mortgage Loan, the applicable Master Servicer or
the Special Servicer shall otherwise require any Mortgage File (or any portion
thereof) or, in the case of a B-Note Mortgage Loan, the related Mortgage 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 Special Servicer and receipt
from the Special Servicer of a Request for Release in the form of Exhibit C-2
attached hereto, the Trustee or, in the case of a B-Note Mortgage Loan, if
applicable, the related 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 a B-Note Mortgage Loan, the related Mortgage Note to such Master
Servicer or the 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 a B-Note Mortgage Loan, the related Mortgage
Note to the related B-Note Holder, or upon the Special Servicer's delivery to
the Trustee and, in the case of a B-Note Mortgage Loan, the related 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 related 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 a B-Note Mortgage Loan, the related B-Note Holder, to the applicable
Master Servicer or the Special Servicer, as applicable.
(c) Within five Business Days of the Special Servicer's
request therefor (or, if the Special Servicer notifies the Trustee and, in the
case of a B-Note Mortgage Loan, if applicable, the related B-Note Holder, of an
exigency, within such shorter period as is reasonable under the circumstances),
the Trustee and, in the case of a B-Note Mortgage Loan, if applicable, the
related B-
-161-
Note Holder, shall execute and deliver to the Special Servicer, in the form
supplied to the Trustee or the related B-Note Holder, as applicable, by the
Special Servicer, any court pleadings, requests for trustee's sale or other
documents reasonably necessary, with respect to any Serviced Mortgage Loan, to
the foreclosure or trustee's sale in respect of the related Mortgaged Property
or to any legal action brought to obtain judgment against the related 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 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 the Special Servicer;
provided that the Trustee and, in the case of a B-Note Mortgage Loan, if
applicable, the related B-Note Holder, may alternatively execute and deliver to
the Special Servicer, in the form supplied to the Trustee or the related B-Note
Holder, as applicable, by the Special Servicer, a limited power of attorney
issued in favor of the Special Servicer and empowering the Special Servicer to
execute and deliver any or all of such pleadings or documents on behalf of the
Trustee or the related B-Note Holder, as applicable (however, the Trustee and,
in the case of a B-Note Mortgage Loan, the related B-Note Holder, shall not be
liable for any misuse of such power of attorney by the Special Servicer).
Together with such pleadings or documents (or such power of attorney empowering
the Special Servicer to execute the same on behalf of the Trustee or the related
B-Note Holder, as applicable), the Special Servicer shall deliver to the Trustee
or, in the case of a B-Note Mortgage Loan, if applicable, the related B-Note
Holder, an Officer's Certificate requesting that such pleadings or documents (or
such power of attorney empowering the Special Servicer to execute the same on
behalf of the Trustee or the related B-Note Holder, as applicable) be executed
by the Trustee or, in the case of a B-Note Mortgage Loan, if applicable, the
related 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 related B-Note Holder, as applicable (or by the Special Servicer
on behalf of the Trustee or the related 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.
(d) If from time to time, pursuant to the terms of the 1290
Avenue of the Americas Intercreditor Agreement and the 1290 Avenue of the
Americas Servicing Agreement, and as appropriate for enforcing the terms of, or
otherwise properly servicing, the 1290 Avenue of the Americas Pooled Mortgage
Loan, the 1290 Avenue of the Americas Master Servicer, the 1290 Avenue of the
Americas Special Servicer or the holder of a 1290 Avenue of the Americas
Non-Pooled Loan requests delivery to it of the original Mortgage Note for the
1290 Avenue of the Americas Pooled Mortgage Loan, then the Trustee shall release
or cause the release of such original Mortgage Note to the requesting party or
its designee. In connection with the release of the original Mortgage Note for
the 1290 Avenue of the Americas Pooled Mortgage Loan in accordance with the
preceding sentence, the Trustee shall obtain such documentation as is
appropriate to evidence the holding by the 1290 Avenue of the Americas Master
Servicer, the 1290 Avenue of the Americas Special Servicer or such holder of a
1290 Avenue of the Americas Non-Pooled Loan, as the case may be, of such
original Mortgage Note as custodian on behalf of and for the benefit of the
Trustee.
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 Serviced Mortgage Loan (including
-162-
each Specially Serviced Mortgage Loan), and each REO Mortgage Loan that was
previously a Serviced 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 March 2003) or any 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 Serviced Mortgage Loan or any REO Mortgage
Loan (other than any 1290 Avenue of the Americas REO Pooled Mortgage Loan) shall
cease to accrue (but not as to any Replacement Pooled Mortgage Loan with respect
thereto) if a Liquidation Event occurs in respect thereof (or, in the case of a
B-Note Mortgage Loan or any REO Mortgage Loan with respect thereto, in respect
of the related Pooled Mortgage Loan or REO Property). Master Servicing Fees
earned with respect to any Serviced Pooled Mortgage Loan or any REO Pooled
Mortgage Loan (other than any 1290 Avenue of the Americas 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 Serviced Pooled Mortgage Loan or
any REO Pooled Mortgage Loan (other than any 1290 Avenue of the Americas 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 a B-Note Mortgage Loan or any successor
REO Mortgage Loan with respect thereto shall be payable out of the related
B-Note Account as provided in Section 3.05(f) or Section 3.05(g), as applicable.
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 Serviced Mortgage Loans (and any successor REO
Mortgage Loans with respect to such Serviced 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 Serviced Mortgage Loans (and any
successor REO Mortgage Loans with respect to such Serviced 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
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 F-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 F-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
-163-
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 Serviced Mortgage
Loan or successor REO Mortgage Loan with respect thereto 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 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"):
(i) any and all Net Default Charges actually collected with
respect to any Serviced Mortgage Loan for which such Master
Servicer is the applicable Master Servicer or any successor REO
Mortgage Loan with respect thereto, which Net Default Charges
accrued during the period when such Mortgage Loan was a
Performing 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 Performing Serviced Mortgage Loans for which such
Master Servicer is the applicable Master Servicer;
-164-
(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 Performing Serviced
Mortgage Loans for which such Master Servicer is the applicable
Master Servicer 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 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
Performing Serviced Mortgage Loans for which such Master Servicer
is the applicable Master Servicer and paid in connection with a
consent, approval or other action that such Master Servicer is
permitted to take in the absence of the consent or approval (or
deemed consent or approval) of the 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 under Serviced Mortgage Loans for which such Master
Servicer is the applicable Master Servicer;
(iv) any and all Prepayment Interest Excesses collected with
respect to the Pooled Mortgage Loans for which such Master
Servicer is the applicable Master Servicer;
(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, the
Special Servicer shall be entitled to receive monthly the Special Servicing Fee
with respect to each Specially Serviced Mortgage Loan, and each REO Mortgage
Loan thereto that relates to an Administered REO Property. 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 Specially Serviced 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
-165-
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 respect thereof (or, in the case of a B-Note
Mortgage Loan or any successor REO Mortgage Loan with respect thereto, in
respect of the related Pooled Mortgage Loan or REO Property) 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 applicable Collection Account;
provided that, unless the Special Servicer reasonably determines that they will
not ultimately be collectable out of collections on or with respect to the
related B-Note Mortgage Loan or any successor REO Mortgage Loan with respect
thereto, any Special Servicing Fees earned by the Special Servicer with respect
to the Ballston Common Pooled Mortgage Loan, the Renaissance Pooled Mortgage
Loan or any successor REO Pooled Mortgage Loan with respect to either shall be
paid out of the related B-Note Account pursuant to Section 3.05(f) or Section
3.05(g), as applicable. Earned but unpaid Special Servicing Fees with respect to
any B-Note Mortgage Loan or any successor REO Mortgage Loan with respect thereto
shall be payable out of the related B-Note Account as provided in Section
3.05(f) or Section 3.05(g), as applicable.
As further compensation for its activities hereunder, the
Special Servicer shall be entitled to receive the Workout Fee with respect to
each Corrected Mortgage Loan, unless the basis on which the applicable Serviced
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 (and, if applicable any
Resolution Extension Period as 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
related B-Note Mortgage Loan or any successor REO Mortgage Loan with respect
thereto, any Workout Fees earned by the Special Servicer with respect to the
Ballston Common Pooled Mortgage Loan or the Renaissance Pooled Mortgage Loan
shall be paid out of the related B-Note Account pursuant to Section 3.05(f) or
Section 3.05(g), as applicable. The Workout Fee with respect to any Corrected
Mortgage Loan will cease to be 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 Serviced Mortgage Loan again became a Corrected Mortgage Loan
after having again become a Specially Serviced Mortgage Loan. If the Special
Servicer is terminated or resigns, it shall retain the right (and the successor
Special Servicer) to receive any and all Workout Fees payable in respect of (i)
any Serviced 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 the Special
Servicer has resolved the circumstances and/or conditions causing any such
Mortgage Loan to be a
-166-
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 the
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 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
Special Servicer shall also be entitled to receive a Liquidation Fee with
respect to each Specially Serviced Mortgage Loan as to which it receives any
full, partial or discounted payoff from the related Borrower and each Specially
Serviced Mortgage Loan and Administered 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 Special Servicer, a B-Note Holder or the Majority
Controlling Class Certificateholder(s) pursuant to Section 3.18, Section 3.28 or
Section 3.30, (B) the purchase or other acquisition of any such Specially
Serviced Mortgage Loan or Administered REO Property by any Controlling Class
Certificateholder(s), the Sole Certificateholder(s), a Master Servicer or the
Special Servicer pursuant to Section 9.01, (C) the repurchase or replacement of
any such Specially Serviced Mortgage Loan or Administered 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,
(D) the purchase of any Specially Serviced Mortgage Loan or Administered REO
Property by any other creditor of the related Borrower or any of its Affiliates
or other equity holders pursuant to a right under the related Mortgage Loan
Documents (provided that such right is exercised within the period and in the
manner required under such Mortgage Loan Documents and the payment of the
Liquidation Fee would not otherwise be covered by the price to be paid by such
creditor), or (E) any Liquidation Event involving the 1290 Avenue of the
Americas Pooled Mortgage Loan or any related REO Property (including any
purchase of such Mortgage Loan by the holder of any 1290 Avenue of the Americas
Non-Pooled Loan in accordance with the 1290 Avenue of the Americas Intercreditor
Agreement)). As to each such Specially Serviced Mortgage Loan or Administered
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 Special Servicer reasonably determines that they will
not ultimately be collectable out of collections on or with respect to the
related B-Note Mortgage Loan or any successor REO Mortgage Loan with respect
thereto, any Liquidation Fees earned by the Special Servicer with respect to the
Ballston Common Pooled Mortgage Loan, the Renaissance Pooled Mortgage Loan or
any successor REO Pooled Mortgage Loan with respect to either shall be paid out
of the related B-Note Account pursuant to Section 3.05(f) or Section 3.05(g), as
applicable. 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.
-167-
The Special Servicer's right to receive any Special Servicing
Fee, Workout Fee and/or Liquidation Fee to which it is entitled may not be
transferred in whole or in part except in connection with the transfer of all of
the Special Servicer's responsibilities and obligations under this Agreement and
except as otherwise expressly provided herein.
(d) The Special Servicer shall be entitled to receive the
following items as additional special servicing compensation (the following
items, collectively, the "Additional Special Servicing Compensation"):
(i) any and all Net Default Charges actually collected with
respect to any Serviced Mortgage Loan or any successor REO
Mortgage Loan with respect thereto, which Net Default Charges
accrued during the period when such loan or deemed loan was a
Specially Serviced Mortgage Loan or an REO 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 any
Specially Serviced Mortgage Loans or any REO Mortgage Loans
(other than any 1290 Avenue of the Americas REO Pooled Mortgage
Loan);
(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 Performing Serviced
Mortgage Loans or REO Mortgage Loans 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 Special
Servicer under the other provisions of this Agreement; and
(iii) interest or other income earned on deposits in the REO
Account maintained by the 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 Special Servicer and
shall not be required to deposit such amounts in any Collection Account or
B-Note Account pursuant to Section 3.04.
(e) The Master Servicers and the Special Servicer shall each
be required (subject to Section 3.11(h) below) to pay out of its own funds all
expenses incurred by it in connection with its servicing activities hereunder
(including payment of any amounts due and owing to any 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, B-Note Account, Servicing Account, Reserve Account or REO
Account, and none of the Master Servicers or the Special Servicer 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 the Special Servicer
in
-168-
accordance with Section 3.19(b) or otherwise, the Special Servicer shall
promptly provide such Master Servicer with such documentation regarding the
subject Servicing Advance as such Master Servicer may reasonably request.
(f) If a Master Servicer or, as contemplated by Section
3.19(b), the 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 the 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 the Special Servicer, as the case may be,
within one Business Day 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) The Master Servicers, the Special Servicer, the Trustee
and the Fiscal Agent shall each be entitled to receive interest at the
Reimbursement Rate in effect from time to time, accrued on the amount of each
Servicing Advance made thereby (with its own funds), for so long as such
Servicing Advance is outstanding. Such interest with respect to any Servicing
Advances shall be payable: (i) first, in accordance with Sections 3.05 and 3.26,
out of any Default Charges subsequently collected on or in respect of the
particular Pooled Mortgage Loan or REO Pooled 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 or, as and to the extent contemplated by the second paragraph
of Section 3.05(a), the other Master Servicer's Collection Account (provided
that such Advance Interest on any Servicing Advances with respect to a Mortgage
Loan Pair or any related REO Property shall be payable out of the related 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 related B-Note
Mortgage Loan or any successor REO Mortgage Loan with respect thereto shall it
be payable out of the Collection Account in accordance with Section 3.05(a)).
The applicable Master Servicer shall reimburse itself, the Special Servicer, the
Trustee or the Fiscal Agent, as appropriate, for any Servicing Advance made by
any such Person 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 a B-Note Account maintained by such Master Servicer, as
applicable; provided that, notwithstanding the foregoing, if a Master Servicer,
the Special Servicer, the Trustee or the Fiscal Agent believes that it is in the
best interest of the Holders of the Investment Grade Certificates, it may, at
its sole option, reimburse itself or request that it be reimbursed, as
applicable, for Nonrecoverable Servicing Advances in installments over time; and
provided, further, that (A) any such Nonrecoverable Servicing Advance
reimbursable in installments made by the applicable Master Servicer (and any
interest thereon and costs related thereto) shall be repaid or caused to be
repaid by the related Borrower within 12 months after the making of such
Nonrecoverable Servicing Advance (and if not so repaid, and if not repaid under
the agreement contemplated by the immediately following clause (B), shall be
paid from the Collection Account with interest at the Reimbursement Rate), and
(B) the applicable Master Servicer may condition the reimbursement of any
Nonrecoverable Servicing Advance in installments on the condition that such
Advance and such reimbursements shall be payable/reimbursable pursuant to a
written agreement (as to payment of a fee and expenses, assurances of repayment,
indemnity and other
-169-
terms). Notwithstanding the foregoing, any interest on such Nonrecoverable
Servicing Advance shall be payable from the Collection Account only to the
extent that such interest accrued on such outstanding Nonrecoverable Servicing
Advance during the period from the date such Nonrecoverable Servicing Advance
was made by the applicable Master Servicer through the date that such Master
Servicer is first entitled to be reimbursed from the Collection Account for the
entire amount of the outstanding Nonrecoverable Servicing Advance pursuant to
this Agreement; provided, however, that the applicable Master Servicer shall not
be entitled to interest under this Section 3.11(g) payable from the Collection
Account to the extent that such interest and the related Nonrecoverable
Servicing Advance or portion thereof has either been paid by the related
Borrower as contemplated by clause (A) of the immediately preceding sentence or
has been paid pursuant to the agreement contemplated by clause (B) of the
immediately preceding sentence. Any decision by the applicable Master Servicer
to be reimbursed for a Nonrecoverable Servicing Advance either (1) in
installments pursuant to this Section 3.11(g) or (2) in a single, undeferred
payment shall in each case be deemed to be in compliance with the Servicing
Standard.
(h) Notwithstanding anything to the contrary set forth
herein, none of the Master Servicers, the Special Servicer, the Trustee or the
Fiscal Agent shall be required to make any Servicing Advance that would, if
made, 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 any affected 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, absent bad faith, any such determination as to
the recoverability of any Servicing Advance shall be conclusive and binding on
the Certificateholders and, in all cases, 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, the Special Servicer or,
if appropriate, any party under the 1290 Avenue of the Americas Servicing
Agreement with respect to a particular Servicing Advance for any Mortgage Loan
or REO Property, and the applicable Master Servicer and the Special Servicer
shall each be entitled to conclusively rely on any determination of
nonrecoverability that may have been made by the other such party or, if
appropriate, any party under the 1290 Avenue of the Americas Servicing Agreement
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
Special Servicer, a copy of any such Officer's Certificate (and accompanying
information) of the Special Servicer shall also be promptly delivered to the
Master Servicer 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 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
-170-
Administered REO Property is involved, shall) pay directly out of such Master
Servicer's Collection Account and/or, in the case of a Mortgage Loan Pair or any
related REO Property, the related B-Note Account, any servicing expense that, if
paid by the applicable Master Servicer or the 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
Servicer, if a Specially Serviced Mortgage Loan or an Administered 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, any affected 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 any
affected 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 a 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 related 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 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 Special Servicer shall perform or cause to be
performed a physical inspection of a Mortgaged Property securing a Specially
Serviced Mortgage Loan as soon as practicable (but in any event not later than
60 days) after the subject Serviced Mortgage Loan becomes a Specially Serviced
Mortgage Loan (and 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 subject Serviced Mortgage Loan
remains a Specially Serviced Mortgage Loan or if such Mortgaged Property becomes
an REO Property); provided that the Special Servicer shall be entitled to
reimbursement of the reasonable and direct out-of-pocket expenses incurred by it
in connection with each such inspection as Servicing Advances and otherwise as
contemplated by Section 3.05(a). The applicable Master Servicer shall, at its
own expense, inspect or cause to be inspected each Mortgaged Property (other
than the 1290 Avenue of the Americas Mortgaged Property, Mortgaged Properties
related to Specially Serviced Mortgage Loans and REO Properties), every calendar
year beginning in 2004, or every second calendar year beginning in 2004 if the
unpaid principal balance of the related Serviced Pooled Mortgage Loan is less
than $2,000,000; provided that with respect to any Serviced Pooled Mortgage Loan
(other than a Specially Serviced Pooled Mortgage Loan) that has an unpaid
principal balance of less than $2,000,000 and has been placed on the CMSA
Servicer Watch List, the applicable Master Servicer, at its own expense, shall,
at the request of the Controlling Class Representative, inspect or cause to be
inspected the related Mortgaged Property every calendar year beginning in 2004
so long as such Mortgage Loan continues to be on the CMSA Servicer Watch List;
and provided, further, that neither Master Servicer will be obligated to inspect
any particular Mortgaged Property during any one-year or two-year, as
applicable, period contemplated above in this sentence, if the Special Servicer
has already done so during that period pursuant to the preceding sentence. Each
of the Master Servicers and the Special Servicer shall prepare (and, 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 the Special
Servicer's internet website) to the Trustee, the Controlling Class
Representative and the applicable
-171-
Master Servicer or the Special Servicer (and, if applicable, any affected 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
such Master Servicer or the Special Servicer (or their respective designees), as
the case may be, material and is evident from such inspection, (ii) any
abandonment of the subject Mortgaged Property, (iii) any change in the condition
or value of the Mortgaged Property that is, in the reasonable judgment of such
Master Servicer or the 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 subject 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-backed securities transactions generally. Each of the Master Servicers
and the Special Servicer shall deliver to the Controlling Class Representative
and, if applicable, any affected 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
the 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 the 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
June 30, 2003, the Special Servicer, in the case of any Specially Serviced
Mortgage Loan, and the applicable Master Servicer, in the case of each
Performing Serviced 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 Special Servicer shall cause quarterly and annual operating
statements, budgets and rent rolls to be regularly prepared in respect of each
REO Property and shall collect all such items promptly following their
preparation. The Special Servicer shall deliver 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 and any
affected B-Note Holder within 30 days of its receipt thereof.
(c) In connection with the matters addressed in this Section
3.12 with respect to the Mortgage Loan Pairs, the applicable Master Servicer and
the Special Servicer shall comply with the provisions of Section 9 of each of
the Ballston Common Co-Lender Agreement and the Renaissance Co-Lender Agreement.
SECTION 3.13. Annual Statement as to Compliance.
The Master Servicers and the Special Servicer shall each
deliver to the Trustee, the Certificate Administrator, the Depositor, the
Underwriters and the Controlling Class Representative, on or before May 1 of
each year, beginning in 2004, an Officer's Certificate (the "Annual Performance
Certification") stating, as to the signer thereof, that (i) a review of the
activities of such Master Servicer
-172-
or the Special Servicer, as the case may be, during the preceding calendar year
and of its performance under this Agreement has been made under such officer's
supervision, (ii) to the best of such officer's knowledge, based on such review,
such Master Servicer or the Special Servicer, as the case may be, has fulfilled
all of its obligations under this Agreement in all material respects throughout
such year (or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof), and (iii) such Master Servicer or the 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 the Master Servicers and the Special Servicer shall each be
required to deliver its Annual Performance Certification by March 15 in 2004 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 the Special Servicer, the Depositor
shall review such Annual Performance Certification and, if applicable, consult
with the applicable Master Servicer or the Special Servicer (as the case may be)
as to the nature of any defaults by such Master Servicer or the Special Servicer
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 2004, the Master
Servicers and the Special Servicer each shall, at its expense, cause a firm of
independent public accountants that is a member of the American Institute of
Certified Public Accountants to furnish, or itself deliver a copy of, 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 the 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 the 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 the Master Servicers and the Special Servicer shall each be required to
cause the delivery of its Annual Accountants' Report by March 15 in 2004 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 the Special Servicer, the
Depositor shall review such report and, if applicable, consult with the
applicable Master Servicer or the Special Servicer (as the case may be) as to
the nature of any defaults by such Master Servicer or the Special Servicer in
the fulfillment of any of such Master Servicer's or Special Servicer's
obligations.
-173-
SECTION 3.15. Access to Information.
(a) The Master Servicers and the Special Servicer shall each
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, each
Underwriter, each Rating Agency, the Controlling Class Representative and each
B-Note Holder, access to any records regarding the Mortgage Loans (or, in the
case of a B-Note Holder, just the related B-Note Mortgage Loan) 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 each B-Note Holder 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 the 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, the Master Servicers and the
Special Servicer may each (i) affix a reasonable disclaimer to any information
provided by it for which it is not the original source (without suggesting
liability on the part of any other party hereto); (ii) affix to any information
provided by it a reasonable statement regarding securities law restrictions on
such information and/or condition access to information on the execution of a
reasonable confidentiality agreement; (iii) withhold access to confidential
information or any intellectual property; and (iv) withhold access to items of
information contained in the Servicing File for any Serviced 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 Servicer, the Master Servicers and the
Special Servicer each shall, without charge, make a knowledgeable Servicing
Officer available either by telephone (with Servicing Officers of each of the
Master Servicers and the Special Servicer 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
Serviced Mortgage Loans and/or Administered REO Properties for which such Master
Servicer or the 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 the Special Servicer to disclose
any information otherwise required to be disclosed by it pursuant to this
Agreement shall not constitute a breach of this Agreement the extent that such
-174-
Master Servicer or the Special Servicer, as the case may be, determines, in its
reasonable and good faith judgment consistent with the Servicing Standard, 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 Servicer
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 Servicer (and their
respective employees, attorneys, officers, directors and agents) shall, in each
case, 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 Administered REO Property; REO
Account.
(a) If title to any Administered 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 any Ballston Common REO
Property or Renaissance REO Property, also on behalf of the related 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 Special Servicer at the expense of the
Trust (or, in the case of any Ballston Common REO Property or Renaissance REO
Property, at the expense of the Trust and the related B-Note Holder; it being
the intention that the related B-Note Holder bear such expense prior to the
Trust) for the purpose of taking title to one or more Administered REO
Properties pursuant to this Agreement. Any such limited liability company formed
by the Special Servicer shall be a manager-managed limited liability company,
with the Special Servicer to serve as the initial manager to manage the property
of the limited liability company, including any applicable Administered REO
Property, in accordance with the terms of this Agreement as if such property was
held directly in the name of the Trust or Trustee under this Agreement. The
Special Servicer shall sell any Administered 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 such REO Property for purposes of Section
860G(a)(8) of the Code, unless the Special Servicer either (i) applies, more
than 60 days prior to the expiration of such liquidation period, and is granted
an extension of time (an "REO Extension") by the IRS to sell such REO Property
or (ii) obtains for the Trustee an Opinion of Counsel, addressed to the Trustee,
to the effect that the holding by the Trust of such REO Property subsequent to
the end of the third calendar year following the year in which such acquisition
occurred will not result in an Adverse REMIC Event with respect to any 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,
the Special Servicer shall act in accordance with the Servicing Standard to
liquidate the subject Administered REO Property on a timely basis. If the
Special Servicer is granted such REO Extension or obtains such Opinion of
Counsel with respect to any Administered REO Property, the Special Servicer
shall (i) promptly forward a copy of such REO Extension or Opinion of Counsel to
the Trustee, and (ii) sell subject Administered REO Property within such
extended period as is permitted by such REO Extension or contemplated by such
Opinion of Counsel, as the case may be. Any expense incurred by the Special
Servicer in connection with its applying for and being granted the REO Extension
contemplated by clause (i) of the third preceding sentence or its obtaining the
Opinion of Counsel
-175-
contemplated by clause (ii) of the third preceding sentence, and for the
creation of and the operating of a limited liability company, shall be covered
by, and be reimbursable as, a Servicing Advance.
(b) The Special Servicer shall segregate and hold all funds
collected and received by it in connection with any Administered REO Property
separate and apart from its own funds and general assets. If any REO Acquisition
occurs in respect of any Mortgaged Property securing a Serviced Mortgage Loan,
then the Special Servicer shall establish and maintain one or more accounts
(collectively, the "REO Account"), to be held on behalf of the Trustee in trust
for the benefit of the Certificateholders (or, in the case of any Ballston
Common REO Property or Renaissance REO Property, on behalf of both the
Certificateholders and the related B-Note Holder), as a collective whole, for
the retention of revenues and other proceeds derived from such Administered REO
Property. Each account that constitutes the REO Account shall be an Eligible
Account. The Special Servicer shall deposit, or cause to be deposited, in the
REO Account, within one Business Day following receipt, all REO Revenues,
Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds received in
respect of an Administered REO Property. Funds in the REO Account may be
invested in Permitted Investments in accordance with Section 3.06. The Special
Servicer is authorized to pay out of related Liquidation Proceeds, Insurance
Proceeds and/or Condemnation Proceeds, if any, any Liquidation Expenses incurred
in respect of an Administered 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 Special Servicer shall be entitled to make withdrawals
from the REO Account to pay itself, as Additional Special Servicing
Compensation, interest and investment income earned in respect of amounts held
in the REO Account as provided in Section 3.06(b) (but only to the extent of the
Net Investment Earnings, if any, with respect to the REO Account for any
Collection Period). The Special Servicer shall give notice to the other parties
hereto of the location of the REO Account when first established and of the new
location of the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account
funds necessary for the proper operation, management, leasing, maintenance and
disposition of any Administered 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 the REO Account and deposit into the applicable
Master Servicer's Collection Account (or, to the extent that such amounts are
allocable to an REO Mortgage Loan that was previously a B-Note Mortgage Loan,
into the related 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 an REO Mortgage Loan that was previously a B-Note Mortgage
Loan, into the related B-Note Account), the aggregate of all amounts received in
respect of each Administered REO Property during such Collection Period that are
then on deposit in the REO Account, net of any withdrawals made out of such
amounts pursuant to the preceding sentence; provided that, in the case of each
Administered REO Property, the Special Servicer may retain in the 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 Administered REO Property (including the
creation of a reasonable reserve for repairs, replacements, necessary capital
improvements and other related expenses), such reserve not to exceed an amount
sufficient to cover such items reasonably expected to be incurred during the
following 12-month period. For the avoidance of doubt, such amounts withdrawn
from the REO Account and deposited into the applicable Master Servicer's
Collection Account following the end of each Collection Period pursuant to the
preceding sentence
-176-
shall, upon such deposit, be construed to have been received by the applicable
Master Servicer during such Collection Period.
(d) The Special Servicer shall keep and maintain separate
records, on a property-by-property basis, for the purpose of accounting for all
deposits to, and withdrawals from, the REO Account pursuant to Section 3.16(b)
or 3.16(c).
(e) Notwithstanding anything to the contrary, this Section
3.16 shall not apply to any 1290 Avenue of the Americas REO Property.
SECTION 3.17. Management of Administered REO Property.
(a) Prior to the acquisition of title to any Mortgaged
Property securing a defaulted Serviced Mortgage Loan, the 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 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 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 the Special Servicer may (provided that
in the judgment of the 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 the Special
Servicer shall 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 the 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 the 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, the Special
Servicer shall either (A) implement the Proposed Plan (after
acquiring the respective Mortgaged Property as REO Property)
or (B)
-177-
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 Special Servicer's decision as
to how each Administered REO Property shall be managed and operated shall be in
accordance with the Servicing Standard. Neither the 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 Administered REO
Property. Nothing in this Section 3.17(a) is intended to prevent the sale of any
Administered REO Property pursuant to the terms and subject to the conditions of
Section 3.18.
(b) If title to any Administered REO Property is acquired,
the Special Servicer shall manage, conserve, protect and operate such REO
Property for the benefit of the Certificateholders (or, in the case of any
Ballston Common REO Property or Renaissance REO Property, on behalf of both the
Certificateholders and the related B-Note Holder), 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 respect to either Grantor Trust
Pool. Except as contemplated by Section 3.17(a), the Special Servicer shall not
enter into any lease, contract or other agreement with respect to any
Administered REO Property that causes the Trust to receive, and (unless required
to do so under any lease, contract or agreement to which the 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 Serviced Mortgage Loan) shall not, with
respect to any Administered 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 Special Servicer shall
have full power and authority to do any and all things in connection with the
administration of any Administered REO Property, as are consistent with the
Servicing Standard and, consistent therewith, shall withdraw from the REO
Account, to the extent of amounts on deposit therein with respect to such REO
Property, funds necessary for the proper operation, management, 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 REO Account with respect to any
Administered 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
-178-
to Section 3.19, make a Servicing Advance of such amounts as are necessary for
such purposes unless such Master Servicer or the 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.
(c) The Special Servicer may, and, if required for the
Administered 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 Administered 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
such REO Property;
(iii) any such contract shall be consistent with
Treasury regulations section 1.856-6(e)(6) and 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
the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c)
relating to any such contract or to actions taken through
any such Independent Contractor shall be deemed to relieve
the Special Servicer of any of its duties and obligations
hereunder with respect to the operation and management of
any such REO Property; and
(v) the Special Servicer shall be obligated with
respect thereto to the same extent as if it alone were
performing all duties and obligations in connection with the
operation and management of such REO Property, and the
Special Servicer shall comply with the Servicing Standard in
maintaining such Independent Contractor.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. To the extent the costs of any contract with any
Independent Contractor for the operation and management of any Administered 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.
(d) Notwithstanding anything to the contrary, this Section
3.17 shall not apply to any 1290 Avenue of the Americas REO Property.
-179-
SECTION 3.18. Fair Value Option; Sale of Administered REO
Properties; Sale of the 1290 Avenue of the
Americas Pooled Mortgage Loan.
(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 and 9.01 of this Agreement, (iii) in the
case of a Pooled Mortgage Loan with a related mezzanine loan or a related B-Note
Mortgage Loan, in connection with a Mortgage Loan default as set forth in the
related intercreditor agreement, or (iv) in the case of the 1290 Avenue of the
Americas Pooled Mortgage Loan, pursuant to a purchase option under the 1290
Avenue of the Americas Intercreditor Agreement and/or the 1290 Avenue of the
Americas Servicing Agreement.
(b) If any Pooled Mortgage Loan becomes a Specially
Designated Defaulted Pooled Mortgage Loan, then the 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 part of a
Mortgage Loan Pair, the related B-Note Holder), in writing. In addition, the
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 part of a Mortgage Loan Pair, the
related B-Note Holder), the Fair Value of such Pooled Mortgage Loan. The 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 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 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 Special Servicer's reasonable
judgment, materially affect, the Special Servicer's most recent Fair Value
determination with respect to such Specially Designated Defaulted Pooled
Mortgage Loan, then the Special Servicer shall redetermine (in a manner as is
permitted above, but taking into account any such new circumstances or
conditions known to the Special Servicer), and report to the Certificate
Administrator, the Trustee, the Controlling Class Representative (and, if the
affected Pooled Mortgage Loan is part of a Mortgage Loan Pair, the related
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 Special Servicer has not accepted a bid at
the Fair Value of the Mortgage Loan, as most recently determined by the Special
Servicer, prior to the expiration of 90 days from such determination, and
thereafter the 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 Special Servicer shall redetermine (in the same
manner as provided above, but taking into account any such new circumstances or
conditions known to the Special Servicer), and report to the Trustee, the
Certificate Administrator, the Controlling Class Representative (and, if the
affected Pooled Mortgage Loan is part of a Mortgage Loan Pair, the related
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 Special Servicer may rely on the
existing third-party information if it deems such reliance to be reasonable.
-180-
In determining the Fair Value of any Specially Designated
Defaulted Pooled Mortgage Loan, the Special Servicer shall take into account,
among other factors, the period and amount of the delinquency on such Mortgage
Loan, the occupancy level and physical condition of the related Mortgaged
Property, the state of the local economy in the area where the 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 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 Defaulted Pooled Mortgage Loan without such an Appraisal; provided
that the Special Servicer shall take account of any change in the circumstances
regarding or the condition of the related Mortgaged Property known to the
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 Special Servicer shall consider available objective
third-party information obtained from generally available sources, as well as
information obtained from vendors providing real estate services to the Special
Servicer, concerning the market for distressed real estate loans and the real
estate market for the subject property type in the area where the related
Mortgaged Property is located. The Special Servicer may, to the extent it is
reasonable to do so in accordance with the Servicing Standard, conclusively rely
on any opinions or reports of qualified Independent third parties 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 Mortgage Loan in making such determination. The reasonable costs of
all appraisals, inspection reports and broker opinions of value, incurred by the
Special Servicer pursuant to this Section 3.18(b) shall constitute, and be
reimbursable as, Servicing Advances. The other parties to this Agreement shall
cooperate with all reasonable requests for information made by the Special
Servicer in order to allow the Special Servicer to perform its duties pursuant
to this Section 3.18(b).
Notwithstanding the foregoing, no Fair Value shall be
determined under this Agreement with respect to the 1290 Avenue of the Americas
Pooled Mortgage Loan.
(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 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 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 Pooled Mortgage Loan or the related
Mortgaged Property becomes an REO Property.
-181-
(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 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 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 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 Special Servicer or its assignee within the
30-day period following the assignment of such Purchase
Option to the 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 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 Special
Servicer (or, if the applicable Master Servicer and the
Special Servicer are the same Person or Affiliates, the
Trustee, upon reasonable notice, shall confirm and report to
the Certificate Administrator and the Special Servicer) that
the 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 Special Servicer may, at its own
expense, revise any such Fair Value determination that is
rejected by the applicable Master Servicer (or, if
applicable, the Trustee), it being understood and agreed
that such revised Fair Value determination will likewise be
subject to confirmation in accordance with this clause (vi).
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 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 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 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
-182-
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. The Special Servicer shall provide the
applicable Master Servicer (or, if applicable, the Trustee) with all information
that the Special Servicer utilized in determining the Fair Value that is being
confirmed.
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 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 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 Special Servicer for deposit in the applicable Master Servicer's Collection
Account) no later than ten 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 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 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.
In no event shall there be a Purchase Option hereunder with
respect to the 1290 Avenue of the Americas Pooled Mortgage Loan.
(d) The Special Servicer shall use its reasonable efforts,
consistent with the Servicing Standard, to solicit cash bids for each
Administered 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 Administered
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 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 Administered REO Property. If the 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 Administered REO Property within the
time constraints imposed by Section 3.16(a), then the 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 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
-183-
written notice of its intention to sell any Administered 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 Administered 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 Administered REO Property pursuant
hereto.
(e) Whether any cash bid constitutes a fair price for any
Administered REO Property for purposes of Section 3.18(d), shall be determined
by the Special Servicer or, if such cash bid is from the Special Servicer, 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 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 Special Servicer if neither the Special Servicer nor any
Affiliate thereof is bidding with respect to the subject Administered REO
Property and (ii) selected by the Trustee if either the Special Servicer or any
Affiliate thereof is so bidding. Where any Pooled Mortgage Loan Seller, any
Certificateholder or any Affiliate of any such Person is among those bidding
with respect to any Administered REO Property, the Special Servicer shall
require that all bids be submitted to it (or, if the 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 Administered REO Property, the 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 such REO Property, the state of
the then current local economy and commercial real estate market where such REO
Property is located and the obligation to dispose of such 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 Administered 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 Special Servicer or any Affiliate thereof shall constitute a fair price
for any Administered REO Property unless such bid is the highest cash bid
received and at least two Independent bids (not including the bid of the Special
Servicer or any Affiliate) have been received. In the event the bid of the
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 Administered
REO Property and the original bid of the Special Servicer or any Affiliate
thereof is the highest of all bids received, then the bid of the 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 Administered REO Property. Any bid by
the Special Servicer for any Administered REO Property shall be unconditional;
and, if accepted, the subject Administered REO Property shall be transferred to
the Special Servicer without recourse, representation or warranty other than
customary representations as to title given in connection with the sale of a
real property.
-184-
(f) Subject to Sections 3.18(a) through 3.18(e) above, the
Special Servicer shall act on behalf of the Trustee in negotiating with
Independent third parties in connection with the sale of any Administered REO
Property and taking any other action necessary or appropriate in connection with
the sale of any Specially Designated Defaulted Pooled Mortgage Loan or
Administered REO Property, and the collection of all amounts payable in
connection therewith. In connection with the sale of any Administered REO
Property, the Special Servicer may charge prospective bidders, and may retain,
fees that approximate the Special Servicer's actual costs in the preparation and
delivery of information pertaining to such sales or evaluating bids without
obligation to deposit such amounts into a Collection Account; provided, that if
the Special Servicer was previously reimbursed for such costs from the
Collection Account, then the Special Servicer must deposit such amounts into a
Collection Account. Any sale of a Specially Designated Defaulted Pooled Mortgage
Loan or any Administered 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 Special Servicer nor the Trustee shall have
any liability to any Certificateholder with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
(g) Any sale of any Specially Designated Defaulted Pooled
Mortgage Loan or Administered REO Property shall be for cash only.
(h) The applicable Master Servicer shall act on behalf of
the Trustee in coordinating with independent third parties seeking to purchase
the 1290 Avenue of the Americas Pooled Mortgage Loan by, and taking any other
action necessary or appropriate in connection with the sale of the 1290 Avenue
of the Americas Pooled Mortgage Loan to, any purchase option holder with respect
thereto pursuant to the 1290 Avenue of the Americas Servicing Agreement and/or
the 1290 Avenue of the Americas Intercreditor Agreement, and the collection of
all amounts payable in connection therewith. Any sale of the 1290 Avenue of the
Americas Pooled Mortgage Loan pursuant to the 1290 Avenue of the Americas
Servicing Agreement and/or the 1290 Avenue of the Americas Intercreditor
Agreement shall be final and without recourse to the Trustee or the Trust, and
if such sale is consummated in accordance with the terms of the 1290 Avenue of
the Americas Servicing Agreement and/or the 1290 Avenue of the Americas
Intercreditor Agreement, neither the Special Servicer nor the Trustee shall have
any liability to any Certificateholder with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
(i) If any Specially Designated Defaulted Pooled Mortgage
Loan or Administered REO Property is sold under this Section 3.18, or the 1290
Avenue of the Americas Pooled Mortgage Loan is sold in accordance with this
Agreement and pursuant to the 1290 Avenue of the Americas Intercreditor
Agreement or the 1290 Avenue of the Americas Servicing Agreement, then the
purchase price 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, in the case of a Specially Designated Defaulted Pooled Mortgage Loan or
Administered REO Property, notification by the 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.
(j) Any purchaser of the Ballston Common Pooled Mortgage
Loan or the Renaissance Pooled Mortgage Loan hereunder, whether pursuant to this
Section 3.18 or pursuant to
-185-
Section 2.03 or 9.01, will be subject to the related Mortgage Loan Pair
Co-Lender Agreement, including any requirements thereof governing who may be a
holder of such Pooled Mortgage Loan. The Special Servicer will require, in
connection with such a sale of the Ballston Common Pooled Mortgage Loan or the
Renaissance Pooled Mortgage Loan, that the purchaser assume in writing all of
the rights and obligations of the holder of such Pooled Mortgage Loan under the
related Mortgage Loan Pair Co-Lender Agreement.
(k) The purchase option for any Specially Designated
Defaulted Pooled 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
Designated Defaulted Pooled Mortgage Loan has become a Corrected Mortgage Loan
or has otherwise ceased to be a Specially Designated Defaulted Pooled Mortgage
Loan, (iii) the related Mortgaged Property has become an REO Property, (iv) a
Final Recovery Determination has been made with respect to such Specially
Designated Defaulted Pooled Mortgage Loan, (v) alternatively but solely in the
case of a Specially Designated Defaulted Pooled Mortgage Loan that is part of a
Mortgage Loan Pair, the purchase option set forth in Section 3.28 or Section
3.30, as applicable, is exercised, or (vi) such Specially Designated Defaulted
Pooled Mortgage Loan has otherwise been removed from the Trust.
SECTION 3.19. Additional Obligations of Master Servicers and
the Special Servicer.
(a) Within sixty (60) days (or within such longer period as
the 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 Serviced Pooled Mortgage Loan (i)
becomes a Modified Mortgage Loan following the occurrence of a Servicing
Transfer Event, (ii) becomes an REO Pooled 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 Serviced Pooled Mortgage Loan and any related REO Pooled 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
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 Special Servicer has no
knowledge of changed circumstances that in the 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 Special Servicer when the Appraisal is received by the
Special Servicer. Promptly following the receipt of, and based upon, such
Appraisal, the 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
Serviced Pooled Mortgage Loan with an outstanding principal balance of less than
$2,000,000 only, consist solely of an internal valuation performed by the
Special Servicer. In the case of the Ballston
-186-
Common Mortgaged Property or the Renaissance Mortgaged Property, the Special
Servicer shall also determine and report to the Trustee, the Master Servicer,
the Controlling Class Representative and the related B-Note Holder the Appraisal
Reduction Amount, if any, with respect to the entire related Mortgage Loan Pair
(calculated as if it was a single Serviced Pooled Mortgage Loan).
A Serviced Pooled 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 Serviced Pooled Mortgage Loan or related
REO Pooled Mortgage Loan remains a Required Appraisal Loan, the 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 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 Special Servicer when the Appraisal is received by the Special Servicer.
Promptly following the receipt of, and based upon, such update, the 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 Ballston Common
Mortgaged Property or the Renaissance Mortgaged Property, the Special Servicer
shall also redetermine, and report to the Trustee, the applicable Master
Servicer, the Controlling Class Representative and the related B-Note Holder,
the Appraisal Reduction Amount, if any, with respect to the entire related
Mortgage Loan Pair (calculated as if it was a single Serviced Pooled Mortgage
Loan).
The Controlling Class Representative and, insofar as a B-Note
Mortgage Loan is affected, the related 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 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 related B-Note Holder, as
applicable. Upon receipt of such Appraisal the Special Servicer shall deliver a
copy thereof to the Trustee, the applicable Master Servicer, the Controlling
Class Representative and, in the case of the Ballston Common Mortgaged Property
or the Renaissance Mortgaged Property, the related B-Note Holder. Promptly
following the receipt of, and based upon, such Appraisal, the 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 Ballston Common Mortgaged Property or the Renaissance Mortgaged
Property, the Special Servicer shall also redetermine and report to the Trustee,
the Master Servicer, the Controlling Class Representative and the related B-Note
Holder the Appraisal Reduction Amount, if any, with respect to the entire
related Mortgage Loan Pair (calculated as if it was a single Serviced Pooled
Mortgage Loan).
(b) Notwithstanding anything to the contrary contained in
any other Section of this Agreement, the 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 Administered REO
Property, and, such Master Servicer shall make such Servicing Advance; provided
that the Special
-187-
Servicer shall make any Servicing Advance on a Specially Serviced Mortgage Loan
or Administered 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 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 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 of such request. If the request is timely and properly made,
the 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 Specially Serviced Mortgage Loan or Administered 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 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.
Notwithstanding the foregoing provisions of this Section
3.19(b), a Master Servicer shall not be required to reimburse the Special
Servicer for, or to make at the direction of the Special Servicer, any Servicing
Advance if such Master Servicer determines in its reasonable judgment that such
Servicing Advance, although not characterized by the Special Servicer as a
Nonrecoverable Servicing Advance, is in fact a Nonrecoverable Servicing Advance.
Such Master Servicer shall notify the Special Servicer in writing of such
determination and, if applicable, such Nonrecoverable Servicing Advance shall be
reimbursed to the 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 sum of: (i) the aggregate amount of Prepayment Interest
Shortfalls incurred in connection with Principal Prepayments or principal
prepayments, as applicable, received during the most recently ended Collection
Period with respect to Serviced Pooled Mortgage Loans as to which such Master
Servicer is the applicable Master Servicer, to the extent such Prepayment
Interest Shortfalls arose from (A) voluntary Principal Prepayments made by a
Borrower on such Serviced Pooled Mortgage Loans that are not Specially Serviced
Mortgage Loans or defaulted Mortgage Loans or (B) to the extent that 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
Serviced Pooled Mortgage Loans that are not Specially Serviced Mortgage Loans or
defaulted Mortgage Loans; (ii) if any principal prepayment relating to the 1290
Avenue of the Americas Pooled Mortgage Loan will be distributed to
Certificateholders on the related Distribution Date, and if such Master Servicer
is the applicable Master Servicer with respect to the 1290 Avenue of the
Americas Pooled Mortgage Loan, the amount of any related Prepayment Interest
Shortfall, to the extent such Prepayment Interest Shortfall arose from (A) a
voluntary principal prepayment made by the Borrower on such Pooled Mortgage Loan
at a time that it was not specially serviced or in monetary default or (B) to
the extent that the 1290 Avenue of the
-188-
Americas Master Servicer did not apply the proceeds thereof in accordance with
the terms of the related Mortgage Loan Documents, an involuntary principal
prepayment made on such Pooled Mortgage Loan at a time that it was not specially
serviced or in monetary default; and (iii) if any Balloon Payment (net of any
portion thereof previously covered by P&I Advances) relating to the 1290 Avenue
of the Americas Pooled Mortgage Loan will be distributed to Certificateholders
on the related Distribution Date, and if such Master Servicer is the applicable
Master Servicer with respect to the 1290 Avenue of the Americas Mortgage Loan,
the amount of any related Balloon Payment Interest Shortfall; provided that, if
and to the extent that any Prepayment Interest Shortfall or Balloon Payment
Interest Shortfall referred to in clause (ii) or (iii) of this sentence resulted
from negligence on the part of the Certificate Administrator in connection with
the failure to cause the related principal prepayment or Balloon Payment to be
distributed to Certificateholders on an earlier Distribution Date, then the
Certificate Administrator shall, on the subject Master Servicer Remittance Date,
make the corresponding portion of the Compensating Interest Payment in lieu of
the applicable Master Servicer making such payment.
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 Serviced Pooled Mortgage Loan that
is to be defeased in accordance with its terms, the applicable Master Servicer
shall execute and deliver to each Rating Agency a certification substantially in
the form attached hereto as Exhibit P and, further, 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 Section 2(a)(16) of the Investment Company Act in an
amount sufficient to make all scheduled payments under the subject Serviced
Pooled 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 the subject Serviced Pooled 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 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 Serviced Mortgage Loans) to assume the subject Serviced
Pooled 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 subject Serviced Pooled 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; provided that,
if (A) the subject Serviced Pooled 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 ten largest Pooled Mortgage Loans then in the
Trust Fund, (B) the terms of the subject Serviced Pooled 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 or
(C) the applicable Master Servicer is unable to execute and deliver the
certification attached hereto as Exhibit P in connection with the subject
defeasance, 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 permit a defeasance unless (i) the subject
Serviced Pooled Mortgage
-189-
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 the 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 related 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 Special Servicer (in the case of a Specially
Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a
Performing 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 Serviced
Mortgage Loan for which it is responsible, subject, however, to Sections 3.08,
3.24, 3.28 and 3.30, 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(e) (with respect to Post-ARD Additional
Interest) and Section 3.20(f) (with respect to various
routine matters), 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 Serviced 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 (solely in the case
of a Performing Serviced Mortgage Loan) such Master Servicer
has obtained the consent of the Special Servicer (it being
understood and agreed that (A) the applicable Master
Servicer shall promptly provide the 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 Special Servicer may reasonably request in order to
withhold or grant any such consent, (B) the Special Servicer
shall decide whether to withhold or grant such consent in
accordance with the Servicing Standard (and subject to
Sections 3.24, 3.28 and 3.30), and (C) if any such consent
has not been expressly denied within ten Business Days of
the 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;
-190-
(ii) other than as provided in Sections 3.02, 3.08 and
3.20(f), the Special Servicer shall not agree to (or, in the
case of a Performing 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 Performing 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
Serviced 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 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 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 a
Mortgage Loan Pair, the related 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 a
Mortgage Loan Pair, the related 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 a 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 related Mortgage Loan Pair
Co-Lender Agreement, such that neither the Trust as holder
of the Pooled Mortgage Loan in such Mortgage Loan Pair nor
the related 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 related Mortgage Loan Pair Co-Lender
Agreement, reflected in the related Mortgage Loan Documents,
including the related Mortgage Loan Pair Co-Lender
Agreement, and (B) to the extent consistent with the
Servicing Standard (taking into account the extent to which
the related B-Note Mortgage Loan is junior to the Pooled
Mortgage Loan in the subject Mortgage Loan Pair), (I) no
waiver, reduction or deferral of any particular amounts due
on the Pooled Mortgage Loan in the subject Mortgage Loan
Pair shall be effected prior to the waiver, reduction or
deferral of the entire corresponding item in respect of the
related B-Note Mortgage Loan, (II) no reduction of the
Mortgage Rate (exclusive, if applicable, of any portion
thereof that represents a Post-ARD Additional Interest Rate)
of the Pooled Mortgage Loan in the subject Mortgage Loan
Pair shall be effected prior to the reduction of the
Mortgage Rate (exclusive, if applicable, of any portion
thereof that represents a Post-ARD Additional Interest Rate)
of the related B-Note Mortgage Loan, and (III) no reduction
of any Post-ARD Additional Interest Rate applicable to the
Pooled Mortgage Loan in the subject Mortgage Loan Pair shall
be effected prior to the reduction of any Post-ARD
Additional Interest Rate applicable to the related B-Note
Mortgage Loan;
(iii) the Special Servicer shall not extend (or, in the
case of a Performing 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 Serviced
Mortgage Loan to a date beyond the earliest of (A) two years
prior to the Rated Final Distribution Date, (B) if such
Serviced 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, ten
-191-
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 Serviced Mortgage Loan is covered
by an Environmental Insurance Policy, for more than five
years later than such Serviced Mortgage Loan's Stated
Maturity Date, unless either (I) the Special Servicer shall
have first determined in its reasonable judgment, based upon
a Phase I Environmental Assessment (and any additional
environmental testing that the Special Servicer deems
necessary and prudent) conducted by an Independent Person
who regularly conducts Phase I Environmental Assessments,
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 such Serviced Mortgage Loan;
(iv) neither the applicable Master Servicer nor the
Special Servicer shall make or permit any modification,
waiver or amendment of any term of, or take any of the other
acts referenced in this Section 3.20(a) with respect to, any
Serviced 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 (the
Master Servicers and the Special Servicer shall not 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 Special Servicer shall
permit any modification, waiver or amendment of any term of
any Performing Serviced Mortgage Loan unless all related
fees and expenses are paid by the Borrower;
(vi) the Special Servicer shall not permit (or, in the
case of a Performing Serviced Mortgage Loan, consent to the
applicable Master Servicer's permitting) any Borrower to add
or substitute any real estate collateral for its Serviced
Mortgage Loan unless the 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 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) 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 Special Servicer shall not release (or, in
the case of a Performing 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
Serviced Mortgage Loan, except as provided in Section
3.09(d), except
-192-
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 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 delivered), (C) the
remaining Mortgaged Property (together with any substitute
collateral) is, in the reasonable judgment of the Special
Servicer, adequate security for the remaining Mortgage Loan
and (D) 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
Serviced Mortgage Loan that either occurs automatically, or results from the
exercise of a unilateral option within the meaning of Treasury regulations
section 1.1001-3(c)(2)(iii) by the related Borrower, 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 Special Servicer shall be
required to oppose the confirmation of a plan in any bankruptcy or similar
proceeding involving a Borrower under a Serviced Mortgage Loan if, in its
reasonable judgment, such opposition would not ultimately prevent the
confirmation of such plan or one substantially similar.
(b) If any payment of interest on a Serviced Pooled Mortgage
Loan is deferred pursuant to Section 3.20(a), then such payment of interest
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 the 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 Special
Servicer may, as a condition to its granting any request by a Borrower under a
Serviced Mortgage Loan for consent, modification, waiver or indulgence or any
other matter or thing, the granting of which is within such Master Servicer's or
the 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 otherwise constitute a "significant modification" of the
subject Mortgage Loan pursuant to Treasury regulations section 1.860G-2(b). All
such fees collected by the applicable Master Servicer and/or the Special
Servicer with respect to any Serviced 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.
-193-
(d) All modifications, amendments, material waivers and
other material actions entered into or taken in respect of the Serviced 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 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 any affected B-Note Holder, in writing, of any material
modification, waiver, amendment or other action entered into or taken thereby in
respect of any Serviced 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 any affected 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 Special
Servicer or the applicable Master Servicer, as appropriate, pursuant to Section
3.20(a) above, the 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 any affected 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 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 Serviced Mortgage Loan, such
Officer's Certificate shall be so delivered before the modification, waiver or
amendment is agreed to.
(e) With respect to any Performing Serviced Mortgage Loan
that is an ARD Mortgage Loan after its Anticipated Repayment Date, the
applicable Master Servicer shall be permitted, with the consent of the Special
Servicer (which consent shall be deemed granted if not denied in writing within
ten Business Days after receipt of 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) 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 (ii) 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, Section 3.24, Section 3.28 or Section 3.30 to the contrary, the
applicable Master Servicer shall not be required to seek the consent of, or
provide prior notice to, the Special Servicer, any Certificateholder or any
B-Note Holder or obtain any confirmation from the Rating Agencies with respect
to the absence of an Adverse Rating Event (unless required by the Mortgage Loan
Documents) in order to approve the following modifications, waivers or
amendments of the Performing 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
-194-
the related 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 related Mortgage Loan Documents
that do not include any other approval or exercise)) and such release is made as
required by the related 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 Serviced 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 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 Serviced Pooled 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 the subject Serviced 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 a Mortgage Loan Pair in
accordance with Section 3.20(a), the Special Servicer (if the Mortgage Loans in
such Mortgage Loan Pair are Specially Serviced Mortgage Loans), or the
applicable Master Servicer (if the Mortgage Loans in such Mortgage Loan Pair are
not Specially Serviced Mortgage Loans) shall 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 Special Servicer, the Trustee, the
Controlling Class Representative and the related B-Note Holder audited operating
statements on a quarterly basis with respect to the related Mortgaged Property,
provided that the 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.
(h) If and to the extent that the Trust, as holder of the
1290 Avenue of the Americas Pooled Mortgage Loan, is entitled to consent to or
approve any modification, waiver or amendment of such Pooled Mortgage Loan, the
applicable Master Servicer shall be responsible for responding to any request
for such consent or approval in accordance with the Servicing Standard, and
subject to the same conditions and/or restrictions, as if the 1290 Avenue of the
Americas Pooled Mortgage Loan was a Performing Serviced Mortgage Loan. Insofar
as any other Person would have consent rights hereunder with respect to a
similar modification, waiver or amendment of a Pooled Mortgage Loan that is a
Performing Serviced Mortgage Loan (other than a Pooled Mortgage Loan that is
part of a Mortgage Loan Pair), such Person shall likewise have the same consent
rights, subject to the same conditions and/or restrictions, with respect to such
modification, waiver or amendment of the 1290 Avenue of the Americas Pooled
Mortgage Loan.
-195-
(i) The Master Servicer shall, as to each Serviced Mortgage
Loan which is secured by the interest of the related Borrower under a Ground
Lease as listed on the Mortgage Loan Schedule, in accordance with the related
Mortgage Loan Documents, promptly (and, in any event, within 45 days) after the
Closing Date notify the related ground lessor of the transfer of such Mortgage
Loan to the Trust pursuant to this Agreement and inform such ground lessor that
any notices of default under the related Ground Lease should thereafter be
forwarded to the Master Servicer.
SECTION 3.21. Transfer of Servicing Between Applicable
Master Servicer and the Special Servicer;
Record Keeping.
(a) Upon determining that a Servicing Transfer Event has
occurred with respect to any Serviced Mortgage Loan, the applicable Master
Servicer shall immediately give notice thereof to the Controlling Class
Representative (and, if affected thereby, to the Ballston Common B-Note Holder
or the Renaissance B-Note Holder, as applicable), and if the applicable Master
Servicer is not also the Special Servicer, the applicable Master Servicer shall
immediately give notice thereof to the Special Servicer, the Trustee and the
Controlling Class Representative, and shall deliver the related Servicing File
to the Special Servicer and shall use its best reasonable efforts to provide the
Special Servicer with all information, documents (or copies thereof) and records
(including records stored electronically on computer tapes, magnetic discs and
the like) relating to such Mortgage Loan and reasonably requested by the Special
Servicer to enable it to assume its functions hereunder with respect thereto
without acting through a Sub-Servicer. 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 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 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 Special Servicer, the 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 Special Servicer's
obligation to service such Mortgage Loan, and the 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 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 Cross-Collateralized Mortgage Loan upon its
becoming a Corrected Mortgage Loan, the applicable Master Servicer and the
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
-196-
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.
(b) In servicing any Specially Serviced Mortgage Loan, the
Special Servicer shall provide to the Trustee originals of documents
contemplated by the definition of "Mortgage File" and generated while the
subject Serviced 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
the subject Serviced Mortgage Loan is a Specially Serviced Mortgage Loan.
(c) The applicable Master Servicer and the 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 Serviced Mortgage
Loan or Administered 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 Serviced Mortgage Loan or Administered REO
Property, each of the applicable Master Servicer and the 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 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 such Master
Servicer shall for any reason no longer act in such capacity hereunder
(including, without limitation, by reason of an Event of Default), any successor
to such Master Servicer 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 such Master Servicer under such agreement or, subject
to the provisions of Section 3.22(f), terminate such rights and obligations
without payment of any fee (provided, however, that neither the Ballston Common
Sub-Servicing Agreement, if any, nor the Renaissance Sub-Servicing Agreement, if
any, may be terminated except for cause or at the direction of the related
Mortgage Loan Pair Controlling Party); (iii) prohibits the Sub-Servicer from
modifying any Serviced Mortgage Loan or commencing any foreclosure or similar
proceedings with respect to any Mortgaged Property without the consent of such
Master Servicer and, further, prohibits the Sub-Servicer from taking any action
that such Master Servicer would be prohibited from taking hereunder; (iv) 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 Special Servicer with respect to any Specially Serviced
Mortgage Loan or otherwise; (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 thereunder as contemplated by the
immediately preceding clause (ii) and except with respect to the obligations of
any applicable successor Master Servicer under a Designated Sub-Servicer
Agreement) none of the Trustee, any successor to such
-197-
Master Servicer 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 Serviced Pooled Mortgage Loan pursuant
to this Agreement to terminate such agreement with respect to such purchased
Serviced Pooled 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
pursuant to Section 6.03; (viii) does not impose any liability or
indemnification obligation whatsoever on the Trustee or the Certificateholders
with respect to anything contained therein; and (ix) in the case of each of the
Ballston Common Sub-Servicing Agreement and the Renaissance 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 related Mortgage Loan Pair 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 include actions taken or to be taken by a
Sub-Servicer on behalf of such Master Servicer; and, in connection therewith,
all amounts advanced by any Sub-Servicer to satisfy the obligations of a Master
Servicer hereunder to make Advances shall be deemed to have been advanced by
such Master Servicer out of its own funds and, accordingly, such Advances shall
be recoverable by such Sub-Servicer through such Master Servicer in the same
manner and out of the same funds as if such Sub-Servicer were such Master
Servicer. 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 and such Sub-Servicer as they may agree. For purposes of this
Agreement, the Master Servicers shall each be deemed to have received any
payment when a Sub-Servicer retained by it receives such payment.
(c) The Master Servicers shall each 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 Serviced 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, 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
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 to
terminate a Sub-Servicer, each of the Master 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 a B-Note Holder.
-198-
(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)
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 to the
applicable Master Servicer (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 applicable 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 a Master Servicer under any Sub-Servicing Agreement,
such Master Servicer, 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 Serviced 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, the Master Servicers shall each remain obligated and liable to the
Trustee and the Certificateholders (and, in the case of a Mortgage Loan Pair, to
the related 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 Serviced Mortgage Loans and/or Administered REO
Properties for which it is responsible. The Master Servicers shall each 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 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 shall remain responsible for the actions of such third-party
contractors as if it 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 to be
reimbursed for any cost or expense for which it is otherwise entitled to
reimbursement under this Agreement.
(k) The applicable Master Servicer shall not enter into any
Sub-Servicing Agreement with respect to a Mortgage Loan Pair without the consent
of the related Mortgage Loan Pair Controlling Party. In addition, the related
Mortgage Loan Pair Controlling Party may require the applicable Master Servicer
to terminate any particular Sub-Servicing Agreement with respect to a Mortgage
Loan Pair.
-199-
Furthermore, if PAR is no longer a Master Servicer, then: (i) the Ballston
Common Controlling Party may require the applicable Master Servicer to (A)
appoint a Sub-Servicer (acceptable to the Ballston Common Controlling Party in
its sole discretion) with respect to the Ballston Common Mortgage Loan Pair and
(B) 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 Ballston Common Mortgage
Loan Pair to that Sub-Servicer; and (ii) the Renaissance Controlling Party may
require the applicable Master Servicer to (A) appoint a Sub-Servicer (acceptable
to the Renaissance Controlling Party in its sole discretion) with respect to the
Renaissance Mortgage Loan Pair and (B) 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 Renaissance Mortgage Loan Pair to that Sub-Servicer.
(l) The Special Servicer shall not enter into any
Sub-Servicing Agreement.
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 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).
-200-
(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 a Master Servicer or the Special Servicer,
the Certificate Administrator shall deliver to each of the Trustee, the Master
Servicers and the Special Servicer 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 the Master Servicers and the Special Servicer
shall each 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 the 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 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, the 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, the 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
Special Servicer, whereupon (if the Special Servicer, a 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 Special
Servicer, (i) the Controlling Class Representative had acted in good faith,
-201-
without negligence or willful misfeasance, with regard to the particular matter
at issue, and (ii) there is no potential for the 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 Special Servicer on behalf of the Trust shall, subject to
Section 6.03, assume the defense of any such claim against the Controlling Class
Representative; provided, that no judgment against the Controlling Class
Representative shall be payable out of the Trust Fund. 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) Subject to Section 3.24(c), the Special Servicer shall
prepare a report (the "Asset Status Report") recommending the taking of certain
actions for each Serviced 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 Serviced Mortgage Loan is transferred to the 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 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 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
Special Servicer may satisfy by providing a copy of the most
recently obtained Appraisal); and
(vi) such other information as the 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 ten Business Days from
receipt of an Asset Status Report the Controlling Class Representative does not
object to such Asset Status Report or (iii) within ten Business Days after
receipt of an Asset Status Report the Controlling Class Representative objects
to such Asset Status Report and the 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 any affected B-Note Holder, as a
collective whole, the Special Servicer shall take the recommended actions
described in the Asset Status
-202-
Report. If within ten Business Days after receipt of an Asset Status Report the
Controlling Class Representative objects to such Asset Status Report and the
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 any affected B-Note Holder, as a collective whole, then
(subject to Section 3.24(c)) the 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 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 Special
Servicer shall implement the recommended action as outlined in the most recent
version of such Asset Status Report (provided that the Special Servicer shall
not take any action that is contrary to applicable law or the terms of the
applicable Mortgage Loan Documents). The Special Servicer may, from time to
time, 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 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 Special Servicer has reasonably determined
that failure to take such action would materially and adversely affect the
interests of the Certificateholders or, in the case of a Mortgage Loan Pair, the
Certificateholders and the related B-Note Holder, in each case as a collective
whole and (B) it has made a reasonable effort to contact the Controlling Class
Representative. The 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 Special Servicer
shall promptly notify the Controlling Class Representative of such inconsistent
action and provide a reasonably detailed explanation of the reasons therefor.
The 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 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 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 (x) of this sentence not otherwise specifically covered by an
approved Asset Status Report, unless and until the Special Servicer has notified
the Controlling Class Representative in writing of the 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 (or, in the case of a
proposed action for which the applicable Master Servicer has requested
-203-
approval from the Special Servicer, within such shorter period during which the
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 Administered 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 Performing Serviced
Mortgage Loan that 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(e), 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 Administered REO
Property into compliance with applicable environmental laws
or to otherwise address Hazardous Materials located at an
Administered REO Property;
(v) any release of collateral for any Serviced Mortgage
Loan (except that in circumstances where either (x) both (A)
the relevant Serviced Mortgage Loan is a Performing Serviced
Mortgage Loan with 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
Serviced 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 Serviced Mortgage Loan (except that in
circumstances where either (x) the relevant Serviced
Mortgage Loan is a Performing Serviced Mortgage Loan with 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 any
Mortgaged Property securing a Serviced Mortgage Loan (except
that in circumstances where either (x) the relevant Serviced
Mortgage Loan is a Performing Serviced Mortgage Loan with a
principal balance of less than $2,500,000 or (y) the release
of the
-204-
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 securing a Serviced
Mortgage Loan (except that in circumstances where the
relevant Serviced Mortgage Loan is a Performing Serviced
Mortgage Loan with 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 Serviced Mortgage Loan to and
assumption of such Serviced 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 Serviced Mortgage Loan or any waiver
of a "due-on-encumbrance" clause in any Serviced Mortgage
Loan (except that in circumstances where the relevant
Serviced Mortgage Loan is a Performing Serviced Mortgage
Loan with 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
Serviced 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 Serviced
Mortgage Loan is a Performing Serviced Mortgage Loan with 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 Special Servicer determines that immediate
action is necessary to protect the interests of the Certificateholders and any
affected B-Note Holder (as a collective whole), the 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 Special Servicer to take, or to refrain from
taking, such actions as the Controlling Class Representative may deem advisable
with respect to the servicing and administration of Specially
-205-
Serviced Pooled Mortgage Loans and/or Administered REO Properties or as to which
provision is otherwise made herein. Upon reasonable request, the Special
Servicer shall provide the Controlling Class Representative with any information
in the 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) the
Special Servicer shall not 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 (and provisions of this Agreement requiring such consultation,
consent or approval shall be of no effect) 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)
or any other provision of this Agreement, may (and the Special Servicer shall
ignore and act without regard to any such advice, direction or objection that
the Special Servicer has determined, in its reasonable, good faith judgment,
would): (A) require or cause the Special Servicer to violate applicable law, the
terms of any Mortgage Loan or any other Section of this Agreement, including the
Special Servicer's obligation to act in accordance with the Servicing Standard,
(B) result in an Adverse REMIC Event with respect to any REMIC Pool or an
Adverse Grantor Trust Event with respect to either Grantor Trust Pool, (C)
expose the Trust, the Depositor, a Master Servicer, the 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 the Special Servicer's responsibilities under
this Agreement. Furthermore, notwithstanding the foregoing (including any
contrary provisions of subsection (a) or subsection (b)), the 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 a Mortgage Loan
Pair, or to even prepare any Asset Status Report with respect to a Mortgage Loan
Pair, or otherwise obtain the approval of or accept direction from the
Controlling Class Representative with respect to any servicing action involving
a Mortgage Loan Pair, unless a Ballston Common Change of Control Event, in the
case of the Ballston Common Mortgage Loan Pair, or a Renaissance Change of
Control Event, in the case of the Renaissance Mortgage Loan Pair, has occurred
and is continuing; provided that, during the period that no Ballston Common
Change of Control Event, in the case of the Ballston Common Mortgage Loan Pair,
or Renaissance Change of Control Event, in the case of the Renaissance Mortgage
Loan Pair, exists, the 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 subject Mortgage Loan
Pair and within 20 days thereafter deliver the same to the applicable Master
Servicer, the Controlling Class Representative and each Rating Agency.
(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.
-206-
SECTION 3.25. Replacement of Special Servicer.
(a) Subject to Section 3.25(b), the Controlling Class
Representative may remove the existing Special Servicer hereunder (with or
without cause) and appoint a successor to the existing Special Servicer;
provided that if any such removal is made without cause, then the costs of
transferring the special servicing responsibilities of the removed 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 rating confirmation described in clause (i) of subsection
(b) that 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.
(b) No removal of the 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, (B) an
Acknowledgment of Proposed Special Servicer in the form attached hereto as
Exhibit I-2, executed by the Person designated to be the successor to the
terminated Special Servicer, and (C) 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 the 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 I-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 the terminated
Special Servicer has been removed by without cause, the Certificateholders of
the Controlling Class 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 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 Special Servicer of all
outstanding Servicing Advances made by the terminated Special Servicer and all
unpaid Advance Interest accrued on such outstanding Servicing Advances (in which
case the successor Special Servicer shall be deemed to have made such Servicing
Advances at the same time that the terminated Special Servicer had actually made
them), (ii) the terminated Special Servicer shall thereafter be entitled to
Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and
(iii) the terminated Special Servicer shall continue to be entitled to the
benefits of Section 6.03, notwithstanding any such termination; and provided,
further, that the 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. The
terminated Special Servicer shall
-207-
cooperate with the Trustee and the replacement Special Servicer in effecting the
transfer of the 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
Special Servicer for administration by it of all cash amounts that at the time
are or should have been credited by the 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 the terminated Special Servicer with respect to any Mortgage Loan or
REO Property.
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 Serviced Pooled Mortgage Loan
or REO Pooled Mortgage Loan (other than any 1290 Avenue of the Americas REO
Pooled Mortgage Loan), 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 Special Servicer, in that order, any Advance
Interest due and owing to such party on outstanding Advances made
thereby with respect to such Serviced Pooled Mortgage Loan or REO
Pooled 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
Special Servicer since the Closing Date with respect to such Serviced
Pooled Mortgage Loan or REO Pooled Mortgage Loan, as the case may be,
which interest was paid from a source other than Default Charges
collected on such Serviced Pooled Mortgage Loan or REO Pooled Mortgage
Loan, as the case may be; and
third, to pay any remaining portion of such Default Charges
(such remaining portion, "Net Default Charges"), in accordance with
Section 3.11, as Additional Master Servicing Compensation to the
applicable Master Servicer or as Additional Special Servicing
Compensation to the Special Servicer, as applicable.
(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 clause second of Section 3.26(a) shall be deemed to offset
payments of Advance Interest in the chronological order in which it accrued with
respect to the subject Serviced Pooled Mortgage Loan or REO Pooled Mortgage Loan
(whereupon such Advance Interest shall thereafter be deemed to have been paid
out of Default Charges).
SECTION 3.27. Certain Matters Regarding the Ballston Common
B-Note Holder.
(a) The Trustee hereby acknowledges receipt on the Closing
Date of an executed counterpart of a Co-Lender Agreement substantially in the
form of Exhibit M-1 hereto, dated as of the Closing Date, with respect to the
Ballston Common Mortgage Loan Pair (the "Ballston Common Co-Lender Agreement"),
which counterpart has been executed by PMCF, in its capacity as Ballston Common
B-Note Holder. Pursuant to the Ballston Common Co-Lender Agreement, the Ballston
-208-
Common B-Note Holder accepts and agrees to be bound by the terms of this
Agreement insofar as it relates to the Ballston Common B-Note Mortgage Loan.
(b) From and after the date hereof, the parties hereto shall
recognize PMCF as the Ballston Common B-Note Holder; provided that, if PMCF
shall transfer the Ballston Common B-Note Mortgage Loan pursuant to Section 19
of the Ballston Common Co-Lender Agreement, the parties hereto shall recognize
as the Ballston Common B-Note Holder the most recent endorsee of the Ballston
Common B-Note that has delivered to each of the parties hereto: (i) either (A) a
certification to the effect that such endorsee is a Qualified Institutional
Lender (as defined in the Ballston Common Co-Lender Agreement) or (B) written
confirmation from each Rating Agency to the effect that the transferee's failure
to be such a Qualified Institutional Lender shall not result in an Adverse
Rating Event with respect to any Class of Rated Certificates; and (ii) a fully
executed assignment and assumption agreement substantially in the form of
Exhibit O-1 hereto (the "Ballston Common B-Note Assignment and Assumption
Agreement"), whereby the transferor of the Ballston Common 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 Ballston Common B-Note
Holder under, the Ballston Common 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 Ballston Common B-Note Mortgage Loan.
(c) In any Insolvency Proceeding involving the Ballston
Common Borrower, the Special Servicer shall (i) file a proof of claim in respect
of the claims of the Trust and the Ballston Common B-Note Holder against the
Ballston Common Borrower, (ii) have the exclusive right to exercise any voting
rights in respect of the claims of the Trust and the Ballston Common B-Note
Holder against the Ballston Common Borrower and (iii) otherwise represent the
Trust and the Ballston Common B-Note Holder in such Insolvency Proceeding, with
due consideration given to the priority in payment to the Trust, as holder of
the Ballston Common Pooled Mortgage Loan, over the Ballston Common B-Note
Holder, as reflected in the Ballston Common Co-Lender Agreement and the other
related Mortgage Loan Documents. Without the written consent of the other,
neither the Trust nor the Ballston Common B-Note Holder shall (except through
the Special Servicer) acquiesce, petition or otherwise invoke or cause any other
Person to invoke an Insolvency Proceeding with respect to the Ballston Common
Borrower or seek to appoint a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official with respect to the Ballston
Common Borrower or all or any part of its property or assets or ordering the
winding-up or liquidation of the affairs of the Ballston Common Borrower. In
addition, without the written consent of the other, neither the Trust nor the
Ballston Common B-Note Holder shall (except through the 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 Ballston Common Borrower under
the Bankruptcy Code. The Trust and the Ballston Common B-Note Holder grant to
the 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 Ballston Common B-Note Holder in
connection with any case by or against the Ballston Common 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
Ballston Common Mortgage Loan Pair and to file a motion to modify the automatic
stay with respect to the Ballston Common Mortgage Loan Pair. The Trust and the
Ballston Common B-Note Holder shall execute, acknowledge and deliver to the
Special Servicer all such further deeds, conveyances and instruments as may be
reasonably necessary for the better assuring and evidencing of the foregoing
grant.
-209-
SECTION 3.28. Certain Rights and Powers of the Ballston
Common B-Note Holder.
(a) Provided that no Ballston Common Change of Control Event
has occurred and is continuing, the Ballston Common B-Note Holder will be
entitled to advise the applicable Master Servicer and the Special Servicer with
respect to that party's taking any of the actions identified in clauses (i)
through (vii) 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 Ballston Common Change of Control Event has
occurred and is continuing, neither the applicable Master Servicer nor the
Special Servicer will be permitted to take any of the actions identified in
clauses (i) through (vii) of this sentence, unless and until the applicable
Master Servicer or the Special Servicer, as the case may be, has (consistent
with the Ballston Common Co-Lender Agreement) notified the Ballston Common
B-Note Holder in writing of that party's intent to take the particular action
and the Ballston Common B-Note Holder has (consistent with the Ballston Common
Co-Lender Agreement) consented thereto in writing:
(i) any modification, amendment or waiver of the
Ballston Common Pooled Mortgage Loan or the Ballston Common
B-Note Mortgage Loan that would have a material adverse
effect on the interests of the Ballston Common B-Note
Holder;
(ii) any modification, amendment or waiver of a
monetary term (including the timing of payments or
forgiveness of interest or principal, but excluding any term
relating to late payment charges) or any material
non-monetary term of the Ballston Common Pooled Mortgage
Loan or the Ballston Common B-Note Mortgage Loan;
(iii) any acceptance of a discounted payoff of the
Ballston Common Pooled Mortgage Loan or the Ballston Common
B-Note Mortgage Loan;
(iv) any approval of a successor property manager with
respect to, or any material alteration of, the Ballston
Common Mortgaged Property;
(v) any waiver of the requirements under the Ballston
Common Mortgage Loan Pair with respect to property insurers
or the manner in which payments or other collections on the
Ballston Common Mortgage Loan Pair are held and/or invested;
(vi) any waiver of a due-on-sale or due-on-encumbrance
clause with respect to the Ballston Common Mortgage Loan
Pair or approval of a transfer of an interest in the related
Borrower or the related Mortgaged Property;
(vii) any material release of collateral for the
Ballston Common Mortgage Loan Pair (other than in accordance
with the terms of, or upon satisfaction of, the Ballston
Common Mortgage Loan Pair);
(viii) any acceptance of substitute or additional
collateral for the Ballston Common Mortgage Loan Pair (other
than in accordance with the terms of the Ballston Common
Mortgage Loan Pair);
-210-
(ix) any acceptance of an assumption agreement
releasing the related Borrower from liability under the
Ballston Common Mortgage Loan Pair; and
(x) any appointment or removal of a Sub-Servicer with
respect to the Ballston Common Mortgage 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 Ballston Common Change of Control Event has occurred and is continuing,
the Special Servicer shall, at any time that a Servicing Transfer Event exists
with respect to the Ballston Common Mortgage Loan Pair:
(i) consult with the Ballston Common B-Note Holder upon the
occurrence of any material event of default under the Ballston
Common Mortgage Loan Pair and follow the directions of the
Ballston Common B-Note Holder with respect to the resolution of
that event of default or the liquidation of the Ballston Common
Mortgage Loan Pair; and
(ii) obtain the prior written consent of the Ballston Common
B-Note Holder (in a manner consistent with the Ballston Common
Co-Lender Agreement) prior to taking any of the following
actions--
(A) foreclosure upon or acquisition of the Ballston Common
Mortgaged Property or any other collateral securing the
Ballston Common Mortgage Loan Pair or engage in any
other enforcement action under the related Mortgage
Loan Documents,
(B) any sale of any REO Property relating to the Ballston
Common Mortgage Loan Pair,
(C) any action to bring the Ballston Common Mortgaged
Property into compliance with applicable environmental
laws or otherwise to address hazardous materials
located at the Ballston Common Mortgaged Property, and
(D) any release of the related Borrower or any guarantor
from liability under the Ballston Common Mortgage Loan
Pair
(c) If, and for so long as, a Ballston Common Change of
Control Event has occurred and is continuing, the Ballston Common 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 Special Servicer
shall have any right or obligation to consult with or to seek and/or obtain
consent or approval from the Ballston Common B-Note Holder prior to acting, and
the provisions of this Agreement requiring such shall be of no effect; provided
that, if a Ballston Common Change of Control Event has occurred and is
continuing, then the applicable Master Servicer and the Special Servicer shall
notify the Ballston Common B-Note Holder and, upon the request of the Ballston
Common B-Note Holder during the 10-Business Day period following its receipt of
such notice, the applicable Master Servicer or the Special Servicer, as
applicable, shall consult with the Ballston Common B-Note Holder regarding its
views as to the proposed action (but may, in its sole discretion, reject any
advice or direction from the Ballston Common B-Note Holder). Furthermore, no
advice, consent, direction or objection given or made by the
-211-
Ballston Common B-Note Holder, as contemplated by Section 3.28(a) or Section
3.28(b) or otherwise herein, may (and the applicable Master Servicer and the
Special Servicer shall each ignore and act without regard to any such advice,
consent, direction or objection that such Master Servicer or the 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
Special Servicer to violate applicable law, the terms of the Ballston Common
Mortgage Loan Pair or the Ballston Common 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, (C) be inconsistent with the best interests of the
Certificateholders and the Ballston Common B-Note Holder, as a collective whole
(i.e., as if they were a single holder holding both the Ballston Common Pooled
Mortgage Loan and the Ballston Common B-Note Mortgage Loan), or (D) materially
expand the scope of the applicable Master Servicer's or the Special Servicer's
responsibilities under this Agreement.
Upon reasonable request, the applicable Master Servicer and
the Special Servicer shall each provide the Ballston Common B-Note Holder with
any information in the possession of the applicable Master Servicer or the
Special Servicer, as applicable, with respect to the matters contemplated by
Section 3.28(a) and/or Section 3.28(b), including its reasons for determining to
take a proposed action.
The applicable Master Servicer and the Special Servicer shall
each notify the Ballston Common B-Note Holder and the Controlling Class
Representative of any release or substitution of collateral for the Ballston
Common Mortgage Loan Pair even if such release or substitution is in accordance
with the loan documents for the Ballston Common Mortgage Loan Pair.
(d) Upon an event of default under the Ballston Common
Pooled Mortgage Loan, the Ballston Common B-Note Holder will be entitled to cure
such event of default, in which case the Special Servicer will refrain from
taking any action against the related Borrower, any related guarantor or any of
the related Mortgaged Properties; provided, that the Ballston Common B-Note
Holder shall not have the right to cure more than three (3) consecutive monthly
defaults in any 12-month period and shall not have the right to cure more than
ten (10) monthly defaults in the aggregate without, in either case, the prior
written consent of the Special Servicer. In connection therewith, the Ballston
Common B-Note Holder shall have an additional five days beyond any grace period
for the related Borrower to have remedied such event of default, subject to
payment by the Ballston Common B-Note Holder of any Advance Interest arising out
of such event of default with respect to any such additional day(s). Each of the
applicable Master Servicer and the Special Servicer shall notify the Ballston
Common B-Note Holder in writing of any event of default under the Ballston
Common Pooled Mortgage Loan, promptly following that party's gaining actual
knowledge of such event of default. Amounts advanced by the Ballston Common
B-Note Holder in effecting any cure pursuant to this Section 3.28(d) shall be
reimbursable to it as contemplated by Section 3 and/or Section 4 of the Ballston
Common Co-Lender Agreement.
(e) If a Ballston Common Purchase Trigger Event shall at any
time occur, the applicable Master Servicer shall promptly so notify the Trustee,
the Special Servicer and the Ballston Common B-Note Holder. Pursuant to the
Ballston Common Co-Lender Agreement, for 180 days following its receipt of such
notice, so long as an event of default exists and the Ballston Common Pooled
Mortgage Loan continues to be a Specially Serviced Mortgage Loan following the
occurrence of the subject Ballston Common Purchase Trigger Event, the Ballston
Common B-Note Holder shall be
-212-
entitled to purchase the Ballston Common Pooled Mortgage Loan at the related
Purchase Price. Any such purchase shall be effectuated not less than five (5) or
more than thirty (30) Business Days after the Ballston Common B-Note Holder
gives notice to the Trustee, the applicable Master Servicer and the Special
Servicer of its intent to purchase the Ballston Common Pooled Mortgage Loan. In
the event of any such purchase, the Purchase Price for the Ballston Common
Pooled Mortgage Loan shall be deposited into the applicable Master Servicer's
Collection Account, and the Trustee, upon receipt of an Officer's Certificate
from the applicable Master Servicer to the effect that such deposit has been
made, shall release or cause to be released to the Ballston Common B-Note Holder
or its designee the Mortgage File for the Ballston Common 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 Ballston Common B-Note Holder ownership of the Ballston
Common Pooled Mortgage Loan. In connection with any such purchase, the
applicable Master Servicer and the Special Servicer shall each deliver any
portion of the related Servicing File in its possession to the Ballston Common
B-Note Holder. The Ballston Common B-Note Holder shall be responsible for all
reasonable costs and expenses incurred by any other party to this Agreement in
connection with the Ballston Common B-Note Holder's exercising its purchase
option under this Section 3.28(e).
(f) Each Certificateholder acknowledges and agrees, by its
acceptance of its Certificates, that: (i) the Ballston Common B-Note Holder may
have special relationships and interests that conflict with those of Holders of
one or more Classes of Certificates; (ii) the Ballston Common 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 Ballston Common B-Note Holder does not
have any duties to the Holders of any Class of Certificates; and (iv) the
Ballston Common 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 Ballston Common B-Note Holder or any director,
officer, employee, agent or principal thereof for having so acted.
(g) If a Ballston Common Change of Control Event shall
occur, the Ballston Common B-Note Holder shall be entitled to receive upon
request made to any party hereto, a copy of any notice or report required to be
delivered (upon request or otherwise) by such party to the Controlling Class
Representative or the Trustee with respect to the Ballston Common Mortgage Loan
Pair. Any such party shall be permitted to require payment of a sum sufficient
to cover the reasonable costs and expenses of providing such copies pursuant to
this Section 3.28(g).
SECTION 3.29. Certain Matters Regarding the Renaissance
B-Note Holder.
(a) The Trustee hereby acknowledges receipt on the Closing
Date of an executed counterpart of a Co-Lender Agreement substantially in the
form of Exhibit M-2 hereto, dated as of the Closing Date, with respect to the
Renaissance Mortgage Loan Pair (the "Renaissance Co-Lender Agreement"), which
counterpart has been executed by PMCF, in its capacity as Renaissance B-Note
Holder. Pursuant to the Renaissance Co-Lender Agreement, the Renaissance B-Note
Holder accepts and agrees to be bound by the terms of this Agreement insofar as
it relates to the Renaissance B-Note Mortgage Loan.
(b) From and after the date hereof, the parties hereto shall
recognize PMCF as the Renaissance B-Note Holder; provided that, if PMCF shall
transfer the Renaissance B-Note Mortgage
-213-
Loan pursuant to Section 19 of the Renaissance Co-Lender Agreement, the parties
hereto shall recognize as the Renaissance B-Note Holder the most recent endorsee
of the Renaissance B-Note that has delivered to each of the parties hereto: (i)
either (A) a certification to the effect that such endorsee is a Qualified
Institutional Lender (as defined in the Renaissance Co-Lender Agreement) or (B)
written confirmation from each Rating Agency to the effect that the transferee's
failure to be such a Qualified Institutional Lender shall not result in an
Adverse Rating Event with respect to any Class of Rated Certificates; and (ii) a
fully executed assignment and assumption agreement substantially in the form of
Exhibit O-2 hereto (the "Renaissance B-Note Assignment and Assumption
Agreement"), whereby the transferor of the Renaissance 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 Renaissance B-Note Holder
under, the Renaissance 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 Renaissance B-Note Mortgage Loan.
(c) In any Insolvency Proceeding involving the Renaissance
Borrower, the Special Servicer shall (i) file a proof of claim in respect of the
claims of the Trust and the Renaissance B-Note Holder against the Renaissance
Borrower, (ii) have the exclusive right to exercise any voting rights in respect
of the claims of the Trust and the Renaissance B-Note Holder against the
Renaissance Borrower and (iii) otherwise represent the Trust and the Renaissance
B-Note Holder in such Insolvency Proceeding, with due consideration given to the
priority in payment to the Trust, as holder of the Renaissance Pooled Mortgage
Loan, over the Renaissance B-Note Holder, as reflected in the Renaissance
Co-Lender Agreement and the other related Mortgage Loan Documents. Without the
written consent of the other, neither the Trust nor the Renaissance B-Note
Holder shall (except through the Special Servicer) acquiesce, petition or
otherwise invoke or cause any other Person to invoke an Insolvency Proceeding
with respect to the Renaissance Borrower or seek to appoint a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
with respect to the Renaissance Borrower or all or any part of its property or
assets or ordering the winding-up or liquidation of the affairs of the
Renaissance Borrower. In addition, without the written consent of the other,
neither the Trust nor the Renaissance B-Note Holder shall (except through the
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
Renaissance Borrower under the Bankruptcy Code. The Trust and the Renaissance
B-Note Holder grant to the 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
Renaissance B-Note Holder in connection with any case by or against the
Renaissance 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 Renaissance Mortgage Loan Pair and to file a
motion to modify the automatic stay with respect to the Renaissance Mortgage
Loan Pair. The Trust and the Renaissance B-Note Holder shall execute,
acknowledge and deliver to the 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 3.30. Certain Rights and Powers of the Renaissance
B-Note Holder.
(a) Provided that no Renaissance Change of Control Event has
occurred and is continuing, the Renaissance B-Note Holder will be entitled to
advise the applicable Master Servicer and the Special Servicer with respect to
that party's taking any of the actions identified in clauses (i) through (vii)
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
3.30(c), provided that no Renaissance
-214-
Change of Control Event has occurred and is continuing, neither the applicable
Master Servicer nor the Special Servicer will be permitted to take any of the
actions identified in clauses (i) through (vii) of this sentence, unless and
until the applicable Master Servicer or the Special Servicer, as the case may
be, has (consistent with the Renaissance Co-Lender Agreement) notified the
Renaissance B-Note Holder in writing of that party's intent to take the
particular action and the Renaissance B-Note Holder has (consistent with the
Renaissance Co-Lender Agreement) consented thereto in writing:
(i) any modification, amendment or waiver of the Renaissance
Pooled Mortgage Loan or the Renaissance B-Note Mortgage Loan that
would have a material adverse effect on the interests of the
Renaissance B-Note Holder;
(ii) any modification, amendment or waiver of a monetary
term (including the timing of payments or forgiveness of interest
or principal, but excluding any term relating to late payment
charges) or any material non-monetary term of the Renaissance
Pooled Mortgage Loan or the Renaissance B-Note Mortgage Loan;
(iii) any acceptance of a discounted payoff of the
Renaissance Pooled Mortgage Loan or the Renaissance B-Note
Mortgage Loan;
(iv) any approval of a successor property manager with
respect to, or any material alteration of, the Renaissance
Mortgaged Property;
(v) any waiver of the requirements under the Renaissance
Mortgage Loan Pair with respect to property insurers or the
manner in which payments or other collections on the Renaissance
Mortgage Loan Pair are held and/or invested;
(vi) any waiver of a due-on-sale or due-on-encumbrance
clause with respect to the Renaissance Mortgage Loan Pair or
approval of a transfer of an interest in the related Borrower or
the related Mortgaged Property;
(vii) any material release of collateral for the Renaissance
Mortgage Loan Pair (other than in accordance with the terms of,
or upon satisfaction of, the Renaissance Mortgage Loan Pair);
(viii) any acceptance of substitute or additional collateral
for the Renaissance Mortgage Loan Pair (other than in accordance
with the terms of the Renaissance Mortgage Loan Pair)
(ix) any acceptance of an assumption agreement releasing the
related Borrower from liability under the Renaissance Mortgage
Loan Pair; and
(x) any appointment or removal of a Sub-Servicer with
respect to the Renaissance Mortgage Loan Pair.
-215-
(b) Notwithstanding anything in any other Section of this
Agreement to the contrary, but in all cases subject to Section 3.30(c), provided
that no Renaissance Change of Control Event has occurred and is continuing, the
Special Servicer shall, at any time that a Servicing Transfer Event exists with
respect to the Renaissance Mortgage Loan Pair:
(i) consult with the Renaissance B-Note Holder upon the
occurrence of any material event of default under the Renaissance
Mortgage Loan Pair and follow the directions of the Renaissance
B-Note Holder with respect to the resolution of that event of
default or the liquidation of the Renaissance Mortgage Loan Pair;
and
(ii) obtain the prior written consent of the Renaissance
B-Note Holder (in a manner consistent with the Renaissance
Co-Lender Agreement) prior to taking any of the following
actions--
(A) foreclosure upon or acquisition of the Renaissance
Mortgaged Property or any other collateral securing the
Renaissance Mortgage Loan Pair or engage in any other
enforcement action under the related Mortgage Loan
Documents,
(B) any sale of any REO Property relating to the
Renaissance Mortgage Loan Pair,
(C) any action to bring the Renaissance Mortgaged Property
into compliance with applicable environmental laws or
otherwise to address hazardous materials located at the
Renaissance Mortgaged Property, and
(D) any release of the related Borrower or any guarantor
from liability under the Renaissance Mortgage Loan
Pair.
(c) If, and for so long as, a Renaissance Change of Control
Event has occurred and is continuing, the Renaissance B-Note Holder shall cease
to have the rights provided for in Section 3.30(a) and Section 3.30(b), and
neither the applicable Master Servicer nor the Special Servicer shall have any
right or obligation to consult with or to seek and/or obtain consent or approval
from the Renaissance B-Note Holder prior to acting, and the provisions of this
Agreement requiring such shall be of no effect; provided that, if a Renaissance
Change of Control Event has occurred and is continuing, then the applicable
Master Servicer and the Special Servicer shall notify the Renaissance B-Note
Holder and, upon the request of the Renaissance B-Note Holder during the
10-Business Day period following its receipt of such notice, the applicable
Master Servicer or the Special Servicer, as applicable, shall consult with the
Renaissance B-Note Holder regarding its views as to the proposed action (but
may, in its sole discretion, reject any advice or direction from the Ballston
Common B-Note Holder). Furthermore, no advice, consent, direction or objection
given or made by the Renaissance B-Note Holder, as contemplated by Section
3.30(a) or Section 3.30(b) or otherwise herein, may (and the applicable Master
Servicer and the Special Servicer shall each ignore and act without regard to
any such advice, consent, direction or objection that such Master Servicer or
the 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 Special Servicer to violate applicable law, the terms of the Renaissance
Mortgage Loan Pair or the Renaissance 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
-216-
Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with
respect to either Grantor Trust Pool, (C) be inconsistent with the best
interests of the Certificateholders and the Renaissance B-Note Holder, as a
collective whole (i.e., as if they were a single holder holding both the
Renaissance Pooled Mortgage Loan and the Renaissance B-Note Mortgage Loan), or
(D) materially expand the scope of the applicable Master Servicer's or the
Special Servicer's responsibilities under this Agreement.
Upon reasonable request, the applicable Master Servicer and
the Special Servicer shall each provide the Renaissance B-Note Holder with any
information in the possession of the applicable Master Servicer or the Special
Servicer, as applicable, with respect to the matters contemplated by Section
3.30(a) and/or Section 3.30(b), including its reasons for determining to take a
proposed action.
The applicable Master Servicer and the Special Servicer shall
each notify the Renaissance B-Note Holder and the Controlling Class
Representative of any release or substitution of collateral for the Renaissance
Mortgage Loan Pair even if such release or substitution is in accordance with
the loan documents for the Renaissance Mortgage Loan Pair.
(d) Upon an event of default under the Renaissance Pooled
Mortgage Loan, the Renaissance B-Note Holder will be entitled to cure such event
of default, in which case the Special Servicer will refrain from taking any
action against the related Borrower, any related guarantor or any of the related
Mortgaged Properties; provided, that the Renaissance B-Note Holder shall not
have the right to cure more than three (3) consecutive monthly defaults in any
12-month period and shall not have the right to cure more than ten (10) monthly
defaults in the aggregate without, in either case, the prior written consent of
the Special Servicer. In connection therewith, the Renaissance B-Note Holder
shall have an additional five days beyond any grace period for the related
Borrower to have remedied such event of default, subject to payment by the
Renaissance B-Note Holder of any Advance Interest arising out of such event of
default with respect to any such additional day(s). Each of the applicable
Master Servicer and the Special Servicer shall notify the Renaissance B-Note
Holder in writing of any event of default under the Renaissance Pooled Mortgage
Loan, promptly following that party's gaining actual knowledge of such event of
default. Amounts advanced by the Renaissance B-Note Holder in effecting any cure
pursuant to this Section 3.30(d) shall be reimbursable to it as contemplated by
Section 3 and/or Section 4 of the Renaissance Co-Lender Agreement.
(e) If a Renaissance Purchase Trigger Event shall at any
time occur, the applicable Master Servicer shall promptly so notify the Trustee,
the Special Servicer and the Renaissance B-Note Holder. Pursuant to the
Renaissance Co-Lender Agreement, for 180 days following its receipt of such
notice, so long as an event of default exists and the Renaissance Pooled
Mortgage Loan continues to be a Specially Serviced Mortgage Loan following the
occurrence of the subject Renaissance Purchase Trigger Event, the Renaissance
B-Note Holder shall be entitled to purchase the Renaissance Pooled Mortgage Loan
at the related Purchase Price. Any such purchase shall be effectuated not less
than five (5) or more than thirty (30) Business Days after the Renaissance
B-Note Holder gives notice to the Trustee, the applicable Master Servicer and
the Special Servicer of its intent to purchase the Renaissance Pooled Mortgage
Loan. In the event of any such purchase, the Purchase Price for the Renaissance
Pooled Mortgage Loan shall be deposited into the applicable Master Servicer's
Collection Account, and the Trustee, upon receipt of an Officer's Certificate
from the applicable Master Servicer to the effect that such deposit has been
made, shall release or cause to be released to the Renaissance B-Note Holder or
its designee the Mortgage File for the Renaissance 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
-217-
are reasonably necessary to vest in the Renaissance B-Note Holder ownership of
the Renaissance Pooled Mortgage Loan. In connection with any such purchase, the
applicable Master Servicer and the Special Servicer shall each deliver any
portion of the related Servicing File in its possession to the Renaissance
B-Note Holder. The Renaissance B-Note Holder shall be responsible for all
reasonable costs and expenses incurred by any other party to this Agreement in
connection with the Renaissance B-Note Holder's exercising its purchase option
under this Section 3.30(e).
(f) Each Certificateholder acknowledges and agrees, by its
acceptance of its Certificates, that: (i) the Renaissance B-Note Holder may have
special relationships and interests that conflict with those of Holders of one
or more Classes of Certificates; (ii) the Renaissance 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 Renaissance B-Note Holder does not have any
duties to the Holders of any Class of Certificates; and (iv) the Renaissance
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 Renaissance B-Note Holder or any director, officer, employee, agent
or principal thereof for having so acted.
(g) If a Renaissance Change of Control Event shall occur,
the Renaissance B-Note Holder shall be entitled to receive upon request made to
any party hereto, a copy of any notice or report required to be delivered (upon
request or otherwise) by such party to the Controlling Class Representative or
the Trustee with respect to the Renaissance Mortgage Loan Pair. Any such party
shall be permitted to require payment of a sum sufficient to cover the
reasonable costs and expenses of providing such copies pursuant to this Section
3.30(g).
-218-
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;
(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
-219-
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;
(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));
-220-
(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;
(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;
(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
-221-
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;
(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;
-222-
(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;
(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));
-223-
(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;
(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 any Class A Principal
Distribution Cross-Over Date, and in any event 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, 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, and in any event
on 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 the respective 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
Distribution Date, until the Class Principal Balance of each such Class has been
reduced to zero.
-224-
(b) Funds on deposit in the Distribution Account on each
Distribution Date that represent Prepayment Premiums or Yield Maintenance
Charges Received by the Trust with respect to any Pooled Mortgage Loan or REO
Pooled Mortgage Loan during the related Collection Period (or, in the case of
the 1290 Avenue of the Americas Pooled Mortgage Loan or any successor REO Pooled
Mortgage Loan with respect thereto, the related 1290 Avenue of the Americas
Certificate-Level 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 Received by the Trust with respect to any Pooled Mortgage Loan or REO
Pooled Mortgage Loan during the related Collection Period (or, in the case of
the 1290 Avenue of the Americas Pooled Mortgage Loan or any successor REO Pooled
Mortgage Loan with respect thereto, the related 1290 Avenue of the Americas
Certificate-Level 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 REO Pooled Mortgage
Loan, as the case may be, 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. 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 any Prepayment Premium or Yield Maintenance
Charge pursuant to this 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 Pooled Mortgage Loan or REO Pooled
Mortgage Loan and distributable on 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 REO Pooled Mortgage Loan, as the case
may be, 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 REO Pooled Mortgage Loan, as the case may be,
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 (or, in the case of a Pooled Mortgage Loan that is, or an REO
Pooled Mortgage Loan that was, an ARD Mortgage Loan, the related Anticipated
Repayment Date), such interpolated yield converted to a monthly equivalent
yield. If Federal Reserve Statistical
-225-
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) or, in the absence of any such reduction, in accordance with the
respective Component Notional Amounts 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 Pooled
Mortgage Loans that are ARD Mortgage Loans (or any successor REO Mortgage Loans
with respect thereto) 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 of Certificates on each Distribution Date shall be made to
the Certificateholders of the respective Class of record at the close of
business on the related Record Date and shall be made by wire transfer of
immediately available funds to the account of any such Certificateholder at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the 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
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
-226-
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
Servicer 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 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,
-227-
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 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 that are all
Corresponding REMIC II Regular Interests with respect to the same Class of
Principal Balance Certificates, 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 the numerical portion of their alphanumeric
designations that follows the portion
-228-
thereof that is the same as the alphabetic or alphanumeric designation of the
Class of Principal Balance Certificates for which such REMIC II Regular
Interests constitute Corresponding REMIC II Regular 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 the numerical portion of their alphanumeric designations that follows
the portion thereof that is the same as the alphabetic or 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
Distribution 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 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 Pooled Mortgage Loan(s) or REO Pooled Mortgage
Loan(s); 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).
-229-
Each Prepayment Premium and Yield Maintenance Charge
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
Pooled Mortgage Loan or REO Pooled Mortgage Loan, as the case may be, in respect
of which such Prepayment Premium or Yield Maintenance Charge was received or
deemed received.
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 I Regular
Interests on such Distribution Date pursuant to this Section 4.01(j).
Notwithstanding the deemed distributions on the REMIC I Regular Interests
described in this Section 4.01(j), actual distributions of funds from the
Distribution Account shall be made only in accordance with Section 4.01(a) or
Section 4.01(b), as applicable.
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(c) 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 Pooled Mortgage Loans and the Mortgaged Properties; provided
that the Certificate Administrator need not deliver to the Depositor, the Master
Servicers, the Special Servicer, 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 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 (or, with respect to the 1290 Avenue of the Americas Pooled
Mortgage Loan or any related REO Property, any 1290 Avenue of the Americas
Loan-Level Collection Period) that
-230-
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 Pooled 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 (or, with respect to the 1290 Avenue of the Americas Pooled Mortgage Loan
or any related REO Property, any 1290 Avenue of the Americas Loan-Level
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 Pooled 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 a Master Servicer or the Special Servicer to timely deliver any
information or reports hereunder. None of the Master Servicers, the Special
Servicer 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, the Special Servicer or the Certificate Administrator, as applicable.
None of the Certificate Administrator, the Master Servicers or the Special
Servicer 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 and each of the Pooled Mortgage Loan Purchase Agreements (including,
in each case, all schedules and exhibits thereto). Upon notification by the
Depositor that ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Bear,
▇▇▇▇▇▇▇ & Co. Inc. have 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, each recipient of information regarding the
Trust on the Certificate Administrator's internet website will be deemed to have
agreed to keep confidential such information until such reports are filed with
the Commission, and to the extent such information is presented on the
Certificate Administrator's internet website, such website will bear a legend to
the following effect: "No recipient shall use or disclose the
-231-
information contained in this statement/report/file in any manner which could
result in a violation of any provision of the Securities Act of 1933 or the
Securities Exchange Act of 1934 or would require registration of any
Non-Registered Certificates pursuant to Section 5 of the Securities Act of
1933."
The Certificate Administrator makes no representations or
warranties as to the accuracy or completeness of any report, document or other
information made available on its internet website and assumes no responsibility
therefor. In addition, the Certificate Administrator may disclaim responsibility
for any information distributed by the Certificate Administrator for which it is
not the original source.
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 Pooled 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 Servicer shall
promptly provide to the Depositor and the Certificate Administrator such
information regarding, in the case of a Master Servicer, the Mortgage Loans and
the Mortgaged Properties for which it is the applicable Master Servicer and, in
the case of the Special Servicer, the Specially Serviced Mortgage Loans and the
Administered REO Properties, as the case may be, in any event as such party may
reasonably request and that has been furnished to, or may otherwise be in the
possession of, such Master Servicer or the Special Servicer, as the case may be.
-232-
(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 Pooled 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 Pooled 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 (or, in the case of the 1290 Avenue of
the Americas Pooled Mortgage Loan, as of such later date as is specified in the
1290 Avenue of the Americas Intercreditor Agreement with respect to certain
payments and collections described therein that are received by such other
Master Servicer after the Determination Date but that, as a consequence of the
1290 Avenue of the Americas Master Servicer's being required to remit such
amounts to such other Master Servicer pursuant to the 1290 Avenue of the
Americas Intercreditor Agreement, are nonetheless distributable to
Certificateholders on the related Distribution 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 Pooled Mortgage Loans as to which it is the applicable
Master Servicer, reflecting information as of the close of business on such
Determination Date (or, in the case of the 1290 Avenue of the Americas Pooled
Mortgage Loan, as of such later date as is specified in the 1290 Avenue of the
Americas Intercreditor Agreement with respect to certain payments and
collections described therein that are received by such other Master Servicer
after the Determination Date but that, as a consequence of the 1290 Avenue of
the Americas Master Servicer's being required to remit such amounts to such
other Master Servicer pursuant to the 1290 Avenue of the Americas Intercreditor
Agreement, are nonetheless distributable to Certificateholders on the related
Distribution 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 Pooled 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
April 2003 will be based solely upon information generated from actual
collections received by such Master Servicer (or, in the case of the 1290 Avenue
of the Americas Pooled Mortgage Loan, by the 1290 Avenue of the Americas 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 Pooled
Mortgage Loans with respect to the period prior to the Closing Date). The
Special Servicer shall from time to time (and, in any event, upon request)
provide each Master Servicer with such information in its possession regarding
the Specially Serviced Mortgage Loans and
-233-
Administered REO Properties 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 the 1290 Avenue of the Americas Mortgaged
Property and each Mortgaged Property that secures a Serviced Pooled Mortgage
Loan that is not a Specially Serviced Pooled Mortgage Loan and the 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 Pooled Mortgage Loan and Administered 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 June 30,
2003, the applicable Master Servicer (in the case of the 1290 Avenue of the
Americas Mortgaged Property and Mortgaged Properties that secure Serviced
Mortgage Loans that are not Specially Serviced Mortgage Loans) or the Special
Servicer (in the case of Mortgaged Properties securing Specially Serviced
Mortgaged Loans and Administered 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 for year end 2002 (or, with respect to Mortgage
Loans that are purchase-money mortgage loans or that closed after 2002,
beginning in 2004 for year end 2003)), the applicable Master Servicer (in the
case of the 1290 Avenue of the Americas Mortgaged Property and Mortgaged
Properties securing Serviced Mortgage Loans that are not Specially Serviced
Mortgage Loans) or the Special Servicer (in the case of Mortgaged Properties
securing Specially Serviced Mortgage Loans and Administered REO Properties)
shall, based upon the most recently available normalized 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 Financial File and a CMSA NOI
Adjustment Worksheet for each related Mortgaged Property and/or REO Property.
The Master Servicers and the Special Servicer shall each remit
electronically an image (labeled according to the ARCap Naming Convention for
Electronic File Delivery) of each CMSA Operating Statement Analysis Report
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 Special Servicer. The Certificate Administrator shall, upon
request from the applicable Master Servicer or the Special Servicer and, to the
extent such items have been delivered to the Certificate Administrator by a
Master Servicer or the Special Servicer, deliver to any Certificateholder or, if
the Certificate Administrator has in accordance with Section 5.06(b) confirmed
-234-
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 Performing Serviced Mortgage Loan, the
Special Servicer has any questions for the related Borrower based upon the
information delivered to the 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 the
Special Servicer's efforts to contact and solicit information from such
Borrower.
(e) Reporting by the Special Servicer. Not later than 2:00
p.m. (New York City time) on the first Business Day following each Determination
Date, the Special Servicer shall prepare and deliver or cause to be delivered to
both of the Master Servicers and, upon request, the Controlling Class
Representative and, to the extent relevant thereto, each B-Note Holder, the
following reports (or data files relating to reports of a Master Servicer) with
respect to the Specially Serviced Mortgage Loans and Administered REO
Properties, 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 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 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, to the extent
relevant thereto, each 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 Administered REO Properties, 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, the 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 Administered 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, a CMSA Property File and a CMSA Comparative
Financial Status Report, combining information for the Pooled 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 Pooled 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, and in each
case providing the most recent information with respect to the subject Pooled
Mortgage Loans and REO Properties as of the related
-235-
Determination Date (or, in the case of the 1290 Avenue of the Americas Pooled
Mortgage Loan and any related REO Property, as of such later date as is
specified in the 1290 Avenue of the Americas Intercreditor Agreement with
respect to certain payments and collections described therein that are received
by such other Master Servicer after the Determination Date but that, as a
consequence of the 1290 Avenue of the Americas Master Servicer's being required
to remit such amounts to such other Master Servicer pursuant to the 1290 Avenue
of the Americas Intercreditor Agreement, are nonetheless distributable to
Certificateholders on the related Distribution Date) and, in each case, if
applicable, identifying each subject Pooled 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, a CMSA Property File and a CMSA Comparative Financial Statement
Report, combining information for the Pooled 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 Pooled
Mortgage Loans and REO Properties as of the related Determination Date (or, in
the case of the 1290 Avenue of the Americas Pooled Mortgage Loan and any related
REO Property, as of such later date as is specified in the 1290 Avenue of the
Americas Intercreditor Agreement with respect to certain payments and
collections described therein that are received by such other Master Servicer
after the Determination Date but that, as a consequence of the 1290 Avenue of
the Americas Master Servicer's being required to remit such amounts to such
other Master Servicer pursuant to the 1290 Avenue of the Americas Intercreditor
Agreement, are nonetheless distributable to Certificateholders on the related
Distribution Date) and, in each case, if applicable, identifying each subject
Pooled Mortgage Loan by loan number and property name. Each CMSA Financial File,
CMSA Property File and a CMSA Comparative Financial Statement Report 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 April 2003.
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
Pooled Mortgage Loans and REO Properties as to which it is the applicable Master
Servicer, and 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 Pooled
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 Pooled Mortgage Loans and REO Properties for
which such other Master Servicer is the applicable Master Servicer but
segregated according to the identities of the
-236-
Master Servicers, in each case providing the most recent information with
respect to the subject Pooled Mortgage Loans and REO Properties as of the
related Determination Date (or, in the case of the 1290 Avenue of the Americas
Pooled Mortgage Loan and any related REO Property, as of such later date as is
specified in the 1290 Avenue of the Americas Intercreditor Agreement with
respect to certain payments and collections described therein that are received
by such other Master Servicer after the Determination Date but that, as a
consequence of the 1290 Avenue of the Americas Master Servicer's being required
to remit such amounts to such other Master Servicer pursuant to the 1290 Avenue
of the Americas Intercreditor Agreement, are nonetheless distributable to
Certificateholders on the related Distribution Date) and, in each case, if
applicable, identifying each subject Pooled 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 (or, with respect to the
1290 Avenue of the Americas Pooled Mortgage Loan or any related REO Property,
any 1290 Avenue of the Americas Loan-Level 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 Pooled 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 Pooled Mortgage Loans and REO
Properties as of the related Determination Date (or, in the case of the 1290
Avenue of the Americas Pooled Mortgage Loan and any related REO Property, as of
such later date as is specified in the 1290 Avenue of the Americas Intercreditor
Agreement with respect to certain payments and collections described therein
that are received by such other Master Servicer after the Determination Date but
that, as a consequence of the 1290 Avenue of the Americas Master Servicer's
being required to remit such amounts to such other Master Servicer pursuant to
the 1290 Avenue of the Americas Intercreditor Agreement, are nonetheless
distributable to Certificateholders on the related Distribution Date) and, in
each case, if applicable, identifying each subject Pooled 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 Pooled 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 Pooled 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 Pooled Mortgage Loans as of the Master Servicer Remittance Date
related to such Distribution Date; provided that the information with respect to
the
-237-
1290 Avenue of the Americas Pooled Mortgage Loan and any related REO Property
shall be provided as of the end of the 1290 Avenue of the Americas Loan-Level
Collection Period. 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 Pooled Mortgage Loans as of the
Master Servicer Remittance Date related to such Distribution Date; provided that
the information with respect to the 1290 Avenue of the Americas Pooled Mortgage
Loan and any related REO Property shall be provided as of the end of the 1290
Avenue of the Americas Loan-Level Collection Period.
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 Pooled 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 Pooled 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
Pooled Mortgage Loans (which shall be the Pooled Mortgage Loans for which a P&I
Advance was made on the preceding Master Servicer Remittance Date or, in the
case of the 1290 Avenue of the Americas Pooled Mortgage Loan, on such other date
as may be appropriate under the 1290 Avenue of the Americas Servicing Agreement)
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 Pooled 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 Pooled Mortgage Loans (which
shall be the Pooled Mortgage Loans for which a P&I Advance was made on the
preceding Master Servicer Remittance Date or, in the case of the 1290 Avenue of
the Americas Pooled Mortgage Loan, on such other date as may be appropriate
under the 1290 Avenue of the Americas Servicing Agreement) 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 Pooled 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 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 K-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
-238-
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 Pooled 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 Servicer 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 Servicer 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 Servicer 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 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. The
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 Servicer, the Master Servicers and
the Certificate Administrator. Each Master Servicer may, absent manifest error,
conclusively rely on the reports to be provided by the Special Servicer pursuant
to Section 3.12(b) and Section 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 the Special
Servicer, the other Master Servicer or a party under the 1290 Avenue of the
Americas Servicing Agreement, and the Special Servicer, such other
-239-
Master Servicer or such party under the 1290 Avenue of the Americas Servicing
Agreement (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 the Special Servicer, such other Master
Servicer or such party under the 1290 Avenue of the Americas Servicing Agreement
(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 the Special Servicer, such other Master Servicer or such party under the
1290 Avenue of the Americas Servicing Agreement (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
Administrator by a Master Servicer pursuant to Section 4.02(c) or Section
4.02(f) was to be prepared by the 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 the 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 the 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 the
Special Servicer is required to deliver any statement, report or information
under any provision of this Agreement, such Master Servicer or the Special
Servicer, as the case may be, may satisfy such obligation by (x) physically
delivering a paper copy of such statement, report or information, (y) delivering
such statement, report or information in a commonly used electronic format or
(z) making such statement, report or information available on 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
and the Trustee may each request delivery in paper format of any statement,
report or information required to be delivered to the Certificate Administrator
or the Trustee, as the case may be, and clause (z) shall not apply to the
delivery of any information required to be delivered to the Certificate
Administrator or the Trustee, as the case may be, unless the Certificate
Administrator or the Trustee, as the case may be, 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
-240-
the Controlling Class Representative and the 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.
(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 the 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 a 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) Notwithstanding anything in this Section 4.02 to the
contrary, in preparing and disseminating any of the statements, reports and
other information required under this Section 4.02, insofar as such statements,
reports and other information relate to the 1290 Avenue of the Americas Pooled
Mortgage Loan or any related REO Property, the applicable Master Servicer shall
be entitled to rely upon the information received by it under the 1290 Avenue of
the Americas Intercreditor Agreement and/or the 1290 Avenue of the Americas
Servicing Agreement; provided that it does not have actual knowledge that any
such information received by it is erroneous. In addition, absent knowledge to
the contrary, the applicable Master Servicer, the Servicer Report Administrator
and the Certificate Administrator shall assume that, on each Distribution Date,
for so long as the 1290 Avenue of the Americas Pooled Mortgage Loan or any
successor REO Pooled Mortgage Loan with respect thereto is part of the Mortgage
Pool, an amount at least equal to the Monthly Payment (or, following the related
maturity date or any related REO Acquisition, the Assumed Monthly Payment) for
the preceding Due Date will (in the form of a P&I Advance or otherwise) be
passed through to the Certificateholders, with the interest portion thereof
adjusted to the related Net Mortgage Rate.
(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 each B-Note Holder, the Certificate Administrator (upon
request), the Special Servicer and the Controlling Class Representative the
following materials, in writing or by electronic means reasonably acceptable to
such B-Note Holder and such Master 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 related Mortgage Loan Pair:
-241-
(i) the amount of the distributions made on the
respective Mortgage Loan(s) in the related Mortgage Loan
Pair 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
B-Note Holder with respect to the related B-Note Mortgage
Loan was less than the full amount that would have been
distributable to such B-Note Holder 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 related
B-Note Mortgage Loan immediately following payment for such
period;
(iv) the aggregate amount of unscheduled payments of
principal allocable to the related 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 subject Mortgage Loan Pair and interest
thereon as of the end of, and all interest paid on Servicing
Advances with respect to the subject Mortgage Loan Pair
during, the prior calendar month;
(vii) the amount of the servicing compensation paid to
the applicable Master Servicer and the Special Servicer with
respect to the subject 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
Special Servicer as allocated between the related Pooled
Mortgage Loan and the related B-Note Mortgage Loan;
(viii) information relating to the status of the
subject 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 holder of the related Pooled Mortgage Loan for such
period and the amount of any outstanding amounts due to the
related Pooled Mortgage Loan for prior periods; and
(x) information contained in the CMSA Investor
Reporting Package relating solely to the related 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
-242-
the total amount of P&I Advances to be made by such Master Servicer; provided,
that the Master Servicer shall give preference to amounts in clause (ii) of this
sentence for purposes of making P&I Advances. 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 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.
Notwithstanding the foregoing, all P&I Advances with respect
to the 1290 Avenue of the Americas Pooled Mortgage Loan or any 1290 Avenue of
the Americas REO Pooled Mortgage Loan are required to be made by the 1290 Avenue
of the Americas Master Servicer pursuant to, and as and when required by, the
1290 Avenue of the Americas Servicing Agreement and/or the 1290 Avenue of the
Americas Intercreditor Agreement. If, as of 11:00 a.m., New York City time, on
any Master Servicer Remittance Date, the 1290 Avenue of the Americas Master
Servicer shall not have advanced the portion of any P&I Advance required to be
made pursuant to the 1290 Avenue of the Americas Servicing Agreement that is
allocable to the 1290 Avenue of the Americas Pooled Mortgage Loan or any 1290
Avenue of the Americas REO Pooled Mortgage Loan (and shall not have delivered to
the Master Servicer an officer's certificate and documentation related to a
determination of nonrecoverability of a P&I Advance as contemplated by the 1290
Avenue of the Americas Servicing Agreement), then (subject to Section 4.03(c)
below) the applicable Master Servicer shall make the portion of such P&I Advance
that was required to be, but was not, made by the 1290 Avenue of the Americas
Master Servicer on such Master Servicer Remittance Date pursuant to the 1290
Avenue of the Americas Servicing Agreement and that is allocable to the 1290
Avenue of the Americas Pooled Mortgage Loan or any successor REO Pooled Mortgage
Loan with respect thereto. If the applicable Master Servicer fails to make any
such P&I Advance on the related Master Servicer Remittance Date, then (subject
to Section 4.03(c) below) the Trustee or, if it fails to do so, the Fiscal
Agent, shall make such P&I Advance on the related Distribution Date.
(b) The aggregate amount of P&I Advances to be made by each
Master Servicer (or by the Trustee or Fiscal Agent, as applicable, if such
Master Servicer fails to do so) 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
-243-
Master Servicing Fees (and, in the case of the 1290 Avenue of the Americas
Pooled Mortgage Loan or any 1290 Avenue of the Americas REO Pooled Mortgage
Loan, any comparable master servicing fees under the 1290 Avenue of the Americas
Servicing Agreement), due or deemed due, as the case may be, in respect of the
Pooled Mortgage Loans as to which such Master Servicer is the applicable Master
Servicer and any successor REO Mortgage Loans with respect thereto on their
respective Due Dates during the related Collection Period (or, in the case of
the 1290 Avenue of the Americas Pooled Mortgage Loan or any successor REO Pooled
Mortgage Loan with respect thereto, during the calendar month in which such
Distribution Date occurs), in each case to the extent such amount was not
Received by the Trust (including, in the case of the 1290 Avenue of the Americas
Pooled Mortgage Loan or any successor REO Pooled Mortgage Loan with respect
thereto, in the form of a P&I Advance under the 1290 Avenue of the Americas
Servicing Agreement) as of the close of business on the related Determination
Date (or, in the case of the 1290 Avenue of the Americas Pooled Mortgage Loan or
any successor REO Pooled Mortgage Loan with respect thereto, as of the end of
the related 1290 Avenue of the Americas Certificate-Level Collection Period);
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; and provided,
further, that, if P&I Advances with respect to the 1290 Avenue of the Americas
Pooled Mortgage Loan or any 1290 Avenue of the Americas REO Pooled Mortgage Loan
under the 1290 Avenue of the Americas Servicing Agreement are reduced in a
manner similar to that contemplated by the immediately preceding proviso, then
the applicable Master Servicer hereunder shall not be required to make any
▇▇▇▇▇▇▇ ▇&▇ Advance with respect to such Pooled Mortgage Loan or REO Pooled
Mortgage Loan, as the case may be, than is required under the 1290 Avenue of the
Americas Servicing Agreement.
(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 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 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.
Absent bad faith, a Master Servicer's determination as to the recoverability of
any P&I Advance shall be conclusive and binding on the Certificateholders and,
in all cases, 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
-244-
Advance. The Trustee, the Fiscal Agent and the applicable Master Servicer shall
be entitled to conclusively rely on any nonrecoverability determination made by
any party under the 1290 Avenue of the Americas Servicing Agreement with respect
to a particular P&I Advance in respect to the 1290 Avenue of the Americas Pooled
Mortgage Loan or any 1290 Avenue of the Americas REO Pooled Mortgage Loan. The
Special Servicer shall promptly furnish any party required to make P&I Advances
hereunder with any information in its possession regarding the Specially
Serviced Pooled 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 (i) relates to a Monthly
Payment or Assumed Monthly Payment in respect of a Past Grace Period Loan or an
REO Pooled Mortgage Loan when made, in which case such interest shall begin to
accrue from the related P&I Advance Date, or (ii) remains outstanding when the
subject Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the
subject Monthly Payment or Assumed Monthly Payment, in which case such interest
shall begin to accrue when the subject Pooled Mortgage Loan becomes a Past Grace
Period Loan in respect of the subject Monthly Payment or Assumed Monthly
Payment, in either case, for so long as such P&I Advance is outstanding (or, in
the case of Advance Interest payable to a 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 Trust or, in the case of the
1290 Avenue of the Americas Pooled Mortgage Loan or any successor REO Pooled
Mortgage Loan, if earlier, by a servicer or other party to the 1290 Avenue of
the Americas Servicing Agreement). 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 Pooled Mortgage
Loan or REO Pooled 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 Pooled Mortgage Loans and REO Properties on deposit
in the applicable Master Servicer's Collection Account or, to the extent
contemplated by the second paragraph of Section 3.05(a), in the other 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 Pooled Mortgage Loan or REO Pooled
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; provided that, notwithstanding the
foregoing, if a Master Servicer, the Trustee or the Fiscal Agent believes that
it is in the best interest of the Holders of the Investment Grade Certificates,
it may, at its sole option, reimburse itself or request that it be reimbursed,
as applicable, for Nonrecoverable P&I Advances in installments over time; and
provided, further (A) any such Nonrecoverable P&I Advance reimbursable in
installments made by the applicable Master Servicer (and any interest thereon
and costs related thereto) shall be repaid or caused to be repaid by the related
Borrower within 12 months after the making of such Nonrecoverable P&I Advance
(and if not so repaid, and if not repaid under the agreement contemplated by the
immediately following clause (B), shall be paid from the Collection Account with
interest at the Reimbursement Rate), and (B) the applicable Master Servicer may
condition the reimbursement of any Nonrecoverable P&I Advance in installments on
the condition that such Advance and such reimbursements shall be
payable/reimbursable pursuant to a written agreement (as to payment of a fee and
expenses, assurances of repayment, indemnity and other terms). Notwithstanding
the foregoing, any interest on such Nonrecoverable P&I Advance shall be
-245-
payable from the Collection Account only to the extent that such interest
accrued on such outstanding Nonrecoverable P&I Advance during the period from
the date such Nonrecoverable P&I Advance was made by the applicable Master
Servicer through the date that such Master Servicer is first entitled to be
reimbursed from the Collection Account for the entire amount of the outstanding
Nonrecoverable P&I Advance pursuant to this Agreement; provided, however, that
the applicable Master Servicer shall not be entitled to interest under this
Section 4.03(d) payable from the Collection Account to the extent that such
interest and the related Nonrecoverable P&I Advance or portion thereof has
either been paid by the related Borrower as contemplated by clause (A) of the
immediately preceding sentence or has been paid pursuant to the agreement
contemplated by clause (B) of the immediately preceding sentence. Any decision
by the applicable Master Servicer to be reimbursed for a Nonrecoverable P&I
Advance either (1) in installments pursuant to this Section 4.03(d) or (2) in a
single, undeferred payment shall in each case be deemed to be in compliance with
the Servicing Standard.
(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
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 any B-Note Mortgage Loan or any successor
REO Mortgage Loan with respect thereto.
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, REMIC II Regular Interest F-1,
-246-
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-1, REMIC II Regular Interest C-2 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 (A) the respective
Uncertificated Principal Balances of the REMIC II Regular Interests that are
Corresponding REMIC II Regular Interests with respect to the Class A-1
Certificates, as a collective matter, in the order described in the next
sentence, and (B) the respective Uncertificated Principal Balances of 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 Pooled Mortgage Loan or REO
Pooled Mortgage Loan (or, if such REMIC I Regular Interest relates to multiple
Replacement Pooled Mortgage Loans, the aggregate Stated Principal Balance of the
related Pooled Mortgage Loans and/or REO Pooled Mortgage Loans), 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 Servicer, the
Certificate Administrator shall be responsible for performing all calculations
necessary in connection with the actual and deemed distributions to be made
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.
-247-
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
$25,000 in the case of the Class A-1 and Class A-2 Certificates, $100,000 in the
case of the 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 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 Servicer and (if the Certificate
-248-
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 the Special
Servicer shall each 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 securities or blue sky laws of any state or other jurisdiction within
the United States, its territories and possessions, or is otherwise made in
accordance with the Securities Act and such other securities or blue sky laws.
If offers and sales of any Certificate are made in any jurisdiction outside of
the United States, its territories and possessions, the Person making such
offers and sales must comply with all applicable laws of such jurisdiction.
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 Underwriters 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 F-1 and a certificate from
such Certificateholder's prospective Transferee substantially in the form
attached hereto either as Exhibit F-2A or as Exhibit F-2B; or (ii) an Opinion of
Counsel satisfactory to the Trustee to the effect that the prospective
Transferee is an Institutional 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, the 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.
-249-
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 Underwriters 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 F-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 Book-Entry Non-Registered Certificates does
not, in connection with the subject Transfer, deliver to the Transferor the
Opinion of Counsel or the certification described in the preceding sentence,
then such Transferee shall be deemed to have represented and warranted that all
the certifications set forth in Exhibit F-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, any Affiliate of the Depositor or any
Person designated in writing by 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, 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 such 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, 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 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) 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 transferred
interests in such Rule 144A Global Certificate. Upon delivery to the
-250-
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 F-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, any
Affiliate of the Depositor or any Person designated in writing by 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 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 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,
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
Servicer, 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
-251-
Underwriters, the Certificate Administrator, the Trustee, the Fiscal Agent, each
Master Servicer, the 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 Underwriters 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 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 Underwriter 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, the Special Servicer, any Sub-Servicer, any party responsible for the
servicing and administration of the 1290 Avenue of the Americas Pooled Mortgage
Loan or any related REO Property, any Exemption Favored Party or any Borrower
with respect to Pooled Mortgage Loans constituting more than 5% of the aggregate
unamortized principal balance of all the Pooled 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
-252-
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 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 H-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.
(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.
-253-
(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 H-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 regulations 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 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.
-254-
(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 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(d)(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 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
-255-
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 in authorized
denominations 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.
(k) In connection with the foregoing Sections 5.02(b), (c)
and (d), in no case shall the Depositor be responsible for the costs or expenses
of any certificates, opinions or agreements contemplated by such Sections
5.02(b), (c) and (d).
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 Depository or its nominee and, except as provided in Section 5.02(b)
and Section 5.03(c), 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 D, Class E, Class F, 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 D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N and Class
P Certificates initially sold in offshore
-256-
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 Servicer, the Trustee, 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. Except as expressly
provided to the contrary herein, 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 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 Servicer, 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
-257-
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.
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 Servicer, 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 Servicer, 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 K-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 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
-258-
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.
SECTION 5.07. Appointment of Authenticating Agents.
(a) The Certificate Administrator may appoint at its expense
an Authenticating Agent, which shall be authorized to act on behalf of the
Certificate Administrator in authenticating Certificates. The Certificate
Administrator shall cause any such Authenticating Agent to execute and deliver
to the Certificate Administrator an instrument in which such Authenticating
Agent shall agree to act in such capacity, with the obligations and
responsibilities herein. Each Authenticating Agent must be organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to carry on a trust business, have a combined capital
and surplus of at least $15,000,000, and be subject to supervision or
examination by federal or state authorities. Each Authenticating Agent shall be
subject to the same obligations, standard of care, protection and indemnities as
would be imposed on, or would protect, the Certificate Administrator hereunder.
The appointment of an Authenticating Agent shall not relieve the Certificate
Administrator from any of its obligations hereunder, and the Certificate
Administrator shall remain responsible for all acts and omissions of the
Authenticating Agent. In the absence of any other Person appointed in accordance
herewith acting as Authenticating Agent, the Certificate Administrator hereby
agrees to act in such capacity in accordance with the terms hereof.
Notwithstanding anything herein to the contrary, if the Certificate
Administrator is no longer the Authenticating Agent, any provision or
requirement herein requiring notice or any information or documentation to be
provided to the Authenticating Agent shall be construed to require that such
notice, information or documentation also be provided to the Certificate
Administrator.
(b) Any Person into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion, or consolidation to which any
Authenticating Agent shall be a party, or any Person succeeding to the corporate
agency business of any Authenticating Agent, shall continue to be the
Authenticating Agent without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
(c) Any Authenticating Agent appointed in accordance with
this Section 5.07 may at any time resign by giving at least 30 days' advance
written notice of resignation to the Certificate Administrator, the Trustee, the
Certificate Registrar and the Depositor. The Certificate Administrator may at
any time terminate the agency of any Authenticating Agent appointed in
accordance with this Section 5.07 by giving written notice of termination to
such Authenticating Agent, the Trustee, the Certificate Registrar and the
Depositor. Upon receiving a notice of such a resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 5.07, the Certificate
Administrator may appoint a successor Authenticating Agent, in which case the
Certificate Administrator shall give written notice of such appointment to the
Trustee, the Certificate Registrar and the Depositor and shall mail notice of
such appointment to all Holders of Certificates; provided, however, that no
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 5.07. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent.
-259-
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Master
Servicers and the Special Servicer.
The Depositor, the Master Servicers and the Special Servicer
shall be liable in accordance herewith only to the extent of the respective
obligations specifically imposed upon and undertaken by the Depositor, each
Master Servicer and the Special Servicer, respectively.
SECTION 6.02. Merger, Consolidation or Conversion of the
Depositor, a Master Servicer or the Special
Servicer.
(a) Subject to Section 6.02(b), the Depositor, the Master
Servicers and the Special Servicer 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 Servicer 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 the Special Servicer shall be a party, or any Person
succeeding to the business of the Depositor, a Master Servicer, the Special
Servicer, shall be the successor of the Depositor, such Master Servicer or the
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 the 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
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) or Section 2.07 (in the case of a
successor or surviving Person to the Special Servicer), as applicable.
SECTION 6.03. Limitation on Liability of the Depositor, the
Master Servicers and the Special Servicer.
(a) None of the Depositor, the Master Servicers or the
Special Servicer shall be under any liability to the Trust, the Trustee, the
Certificateholders or any 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 the Special Servicer against any liability to the Trust, the Trustee, the
Certificateholders or any B-Note Holder for the breach of a representation or
warranty made by such party herein, or against any expense or liability
specifically
-260-
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, the 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 conforming to the requirements of this Agreement for
the truth and accuracy of the contents of that document (and as to certificates
and opinions, including Opinions of Counsel, for the truth of the statements
made therein and the correctness of the opinions expressed therein) 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, which document, prima facie, is
properly executed and submitted by any Person, or any employee or agent of any
Person (including legal counsel as to opinions), respecting any matters arising
hereunder. The Depositor, each Master Servicer, the 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 Servicer shall be under
any obligation to appear in, prosecute or defend any legal action unless such
action is related to its respective duties under this Agreement and, except in
the case of a legal action 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 the 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 the 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). Notwithstanding the foregoing, if and to the
extent that any loss, liability, cost or expense that is, pursuant to this
Section 6.03(a), required to be borne by the Trust out of the Distribution
Account or a Collection Account, relates to a B-Note Mortgage Loan, such loss,
liability, cost or expense shall instead be payable by the related B-Note Holder
out of amounts on deposit in the related B-Note Account and shall be payable out
of the Distribution Account or a Collection Account only to the extent that
amounts recoverable on such B-Note Mortgage Loan shall be insufficient to cover
the portion of such loss, liability, cost or expense so payable out of the
related B-Note Account.
(b) In addition, none of the Master Servicers or the Special
Servicer shall have any liability with respect to, and each of the Master
Servicers and the Special Servicer shall be entitled to rely, as to the truth of
the statements made therein and the correctness of the opinions expressed
therein, on any certificates or opinions furnished to, and accepted in good
faith by, such Master Servicer or the Special Servicer, as the case may be, and
conforming to the requirements of this Agreement. Each of the Master Servicers
and the Special Servicer may rely in good faith on information provided to it by
-261-
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.
Each of the Master Servicers and the Special Servicer may rely, and shall be
protected in acting or refraining from acting upon, any resolution, officer's
certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, financial
statement, agreement, appraisal, bond or other document (in electronic or paper
format) as contemplated by and in accordance with this Agreement and reasonably
believed or in good faith believed by the applicable Master Servicer or Special
Servicer to be genuine and to have been signed or presented by the proper party
or parties and each of them may consult with counsel, in which case any written
advice of counsel or Opinion of Counsel shall be full and complete authorization
and protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel. Furthermore, none of the Master Servicers or the Special Servicer shall
have any liability under this Agreement for any failure of any 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
Servicer.
(a) Each of the Master Servicers and the Special Servicer
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 the 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 the Special Servicer, as
the case may be, at the date of this Agreement). Any such determination
requiring the resignation of a Master Servicer or the 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 the 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 the Special Servicer, as the
case may be, shall have been so appointed and have accepted appointment within
90 days after such Master Servicer or the 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 Servicer 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",
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) the resigning party pays all costs and expenses in
connection with such transfer, and (iv) the successor accepts appointment in
writing prior to the effectiveness of such resignation.
(c) None of the Master Servicers or the Special Servicer
shall be permitted to resign except as contemplated in subsections (a) and (b)
of this Section 6.04. Consistent with the foregoing,
-262-
none of the Master Servicers or the Special Servicer 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 the 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 the 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 the 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 Servicer.
Each of the Master Servicers and the Special Servicer 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 and as reasonably related to the
performance of the obligations of the Master Servicers and the Special Servicer,
as applicable, pursuant to this Agreement, each of the Master Servicers and the
Special Servicer 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. Each of the Master Servicers and the Special Servicer may affix to
any such 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 either Master Servicer or
the Special Servicer hereunder and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of a Master Servicer or
the Special Servicer hereunder or exercise the rights of a Master Servicer or
the Special Servicer hereunder; provided, however, that none of the Master
Servicers or the Special Servicer 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 the Special Servicer and is not obligated
to supervise the performance of the Master Servicers and/or the Special Servicer
under this Agreement or otherwise.
SECTION 6.06. Master Servicers and Special Servicer 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, the Special Servicer or an Affiliate thereof. If, at any
time during which a Master Servicer, the Special Servicer or an Affiliate of a
Master Servicer or the 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 the 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 the Special Servicer (as the case
may
-263-
be), violate the Servicing Standard, but that, if taken, might nonetheless, in
the reasonable judgment of such Master Servicer or the Special Servicer (as the
case may be), be considered by other Persons to violate the Servicing Standard,
then such Master Servicer or the 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 the 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 the 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 the Special Servicer and its Affiliates, as appropriate),
together with a request for approval by the Certificateholders of each 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 the
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 the 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 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 a Master
Servicer or the 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.
-264-
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 any B-Note Account maintained by
it any amount required to be so deposited under this
Agreement, which failure continues unremedied for one
Business Day following the date on which such deposit was
first required to be made; or
(ii) any failure by the Special Servicer to deposit
into the REO Account or to deposit, or remit to either
Master Servicer for deposit, into a Collection Account or
B-Note Account, any amount required to be so deposited or
remitted under this Agreement, which failure continues
unremedied for one Business Day 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 such 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
(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 one
Business Day 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 the 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 one
Business Day following the date on which notice has been
given to the Special Servicer by the Trustee as provided in
Section 3.11(f); or
(vi) any failure on the part of a Master Servicer or
the 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 the Special Servicer, as
the case may be, contained in this Agreement,
-265-
which failure continues unremedied for a period of 30 days
after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to
such Master Servicer or the Special Servicer, as the case
may be, by any other party hereto or to such Master Servicer
or the 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 any B-Note Holder; provided,
however, that, with respect to any such failure that is not
curable within such 30-day period, such Master Servicer or
the Special Servicer, as the case may be, shall have an
additional cure period of 60 days to effect such cure so
long as such Master Servicer or the Special Servicer, as the
case may be, has commenced to cure such failure 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, a full cure; or
(vii) any breach on the part of a Master Servicer or
the Special Servicer of any representation or warranty
contained in this Agreement that materially and adversely
affects the interests of any Class of Certificateholders or
any B-Note Holder and which continues unremedied for a
period of 30 days after the date on which notice of such
breach, requiring the same to be remedied, shall have been
given to such Master Servicer or the Special Servicer, as
the case may be, by any other party hereto or to such Master
Servicer or the 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 such breach, any B-Note Holder; provided,
however, that, with respect to any such breach that is not
curable within such 30-day period, such Master Servicer or
the Special Servicer, as the case may be, shall have an
additional cure period of 60 days to effect such cure so
long as such Master Servicer or the Special Servicer, as the
case may be, has commenced to cure such breach 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, 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 the Special Servicer and such decree or order
shall have remained in force undischarged, undismissed or
unstayed for a period of 60 days; or
(ix) a Master Servicer or the Special Servicer shall
consent to the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy,
insolvency, readjustment of debt, 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 the Special Servicer shall
admit in writing its inability to pay its debts generally as
they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute,
make an assignment for the benefit of its creditors,
voluntarily suspend payment of its obligations, or take any
association or company action in furtherance of the
foregoing; or
-266-
(xi) a Master Servicer is removed from S&P's approved
master servicer list or the Special Servicer is removed from
S&P's approved special servicer list and, in either case, is
not reinstated within 60 days and the ratings then assigned
by S&P to any Classes of Certificates are downgraded,
qualified or withdrawn (including being placed on a negative
credit watch) in connection with such removal; or
(xii) a Master Servicer has been downgraded to a
servicer rating level below "CMS3" (or its equivalent) by
Fitch; the Special Servicer has been downgraded to a special
servicer rating level below "CSS3" (or its equivalent) by
Fitch; or both (A) the Trustee receives notice from Fitch to
the effect that the continuation of a Master Servicer or the
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 (B)
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 any B-Note Holder.
When a single entity acts as two or more of the capacities of
the Master Servicers and the Special Servicer, 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 a Master
Servicer or the Special Servicer (in either case, for purposes of this Section
7.01(b), the "Defaulting Party") shall occur and be continuing, then, and in
each and every such case, so long as the Event of Default shall not have been
remedied, the 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 the Special Servicer, the Controlling
Class Representative), 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 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 (other than as a B-Note Holder) 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
-267-
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 Servicer 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 Servicer 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 the 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 the 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 Distribution
Account or any B-Note Account, Servicing Account or Reserve Account maintained
by it (if it is the Defaulting Party) or by the Special Servicer to the REO
Account, a Collection Account or any B-Note Account, Servicing Account or
Reserve Account (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 a Master Servicer or the Special Servicer is
terminated pursuant to this Section 7.01(b), such Master Servicer or the 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 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 the 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
a Mortgage Loan Pair occurs and affects the related 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 related B-Note Holder shall be entitled to require that
such Master Servicer appoint a Sub-Servicer that will be responsible for
servicing such Mortgage 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 subject 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 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 Serviced Mortgage Loans pursuant to the
terms of the respective Sub-Servicing Agreements
-268-
and entering into a Sub-Servicing Agreement with the terminated Master Servicer
to service each of the Serviced 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 Serviced 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 to the terminated 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 a
Master Servicer hereunder in accordance with Section 7.02.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time a Master Servicer or the 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 the 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 the 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 the 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(c). Neither the Trustee nor any other
successor shall be liable for any of the representations and warranties of the
-269-
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 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 the 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) and (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 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. No appointment of a successor to a Master Servicer or the
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.
If the Trustee or an Affiliate acts pursuant to this Section
7.02 as successor to the resigning or terminated Master Servicer, it may reduce
the Excess Servicing Fee Rate to the extent that its or such Affiliate's
compensation as successor Master Servicer would otherwise be below the market
rate servicing compensation. If the Trustee elects to appoint a successor to the
resigning or terminated Master Servicer other than itself or an Affiliate
pursuant to this Section 7.02, it may reduce the Excess Servicing Fee Rate to
the extent reasonably necessary (in the sole discretion of the Trustee) for the
Trustee to appoint a qualified successor Master Servicer that meets the
requirements of this Section 7.02.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of a Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of a Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to a
Master Servicer or the 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 B-Note Holders.
-270-
(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 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.
-271-
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, the 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.
(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.
-272-
(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 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 to a Master
Servicer or the 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, the 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 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
-273-
Fund other than from funds available in a Collection Account
or the 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 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,
Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or
document reasonably believed by it to be genuine and 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 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
-274-
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-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 the Special Servicer (unless, in the
case of the Trustee, it is acting as a Master Servicer or
the 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
-275-
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 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 Pooled 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 the 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,
the 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 the Special Servicer and such Master Servicer or
the Special Servicer, as the case may be, would be so responsible hereunder.
Except as contemplated by Section 11.02(a), 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.
-276-
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
Pooled 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 Pooled
Mortgage Loans and any successor REO Pooled Mortgage Loans through the end of
the then most recently ended calendar month as compensation for all services
rendered by the Trustee and the Servicer Report Administrator, respectively,
hereunder. As to each Pooled Mortgage Loan and REO Pooled Mortgage Loan, the
Trustee Fee and the Servicer Report Administrator Fee shall accrue during each
calendar month, commencing with March 2003, 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 March 2003, 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
Pooled Mortgage Loan and REO Pooled Mortgage Loan, 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), the Certificate Administrator
Fee and the Tax Administrator Fee shall constitute the sole compensation of the
Trustee, the Certificate Administrator and the Tax Administrator, respectively,
for such services to be rendered by it. The Trustee shall be responsible for the
payment of the Certificate Administrator Fee and the Tax Administrator Fee.
Notwithstanding the prior paragraph, if and to the extent that
any loss, liability, cost or expense that is, pursuant to the prior paragraph,
required to be borne by the Trust out of the Distribution Account or a
Collection Account, relates to a B-Note Mortgage Loan, such loss, liability,
cost or expense shall instead be payable by the related B-Note Holder out of
amounts on deposit in the related B-Note Account and shall be payable out of the
Distribution Account or a Collection Account only to the extent that amounts
recoverable on such B-Note Mortgage Loan shall be insufficient to cover the
portion of such loss, liability, cost or expense so payable out of the related
B-Note Account.
(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 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,
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 to a Master Servicer
or the 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,
-277-
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 regulations
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
negligent disregard of, the Trustee's, the Fiscal Agent's, the Certificate
Administrator's or the Tax Administrator's obligations and duties hereunder.
(c) The Master Servicers and the Special Servicer 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 the 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 the
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 the 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.
(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 Servicer 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 the 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 the 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
-278-
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 at least "A+" from S&P and a short-term unsecured debt
rating from each Rating Agency of at least "A-1" in the case of S&P and "F1" in
the case of Fitch (or, in the case of either Rating Agency, such lower rating(s)
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 "BBB" from
each Rating Agency (or, in the case of either 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 "A"
from each Rating Agency (or, in the case of either 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 Servicer 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) a Master
Servicer or the Special Servicer (except during any period when the Trustee has
assumed the duties of such Master Servicer or the 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 Servicer,
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
-279-
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 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 either Rating Agency) result in an Adverse Rating
Event with respect to any Class of Rated Certificates, then the Depositor may
(and, if it fails to do so within 10 Business Days, PAR or any successor thereto
as Master Servicer shall as soon as practicable) 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 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 the successor trustee, certificate administrator or
-280-
tax administrator, as the case may be, does not have a long-term unsecured debt
rating of at least "A+" from S&P and a short-term unsecured debt rating from
each Rating Agency of at least "A-1" in the case of S&P and "F1" in the case of
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, the 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, the
Special Servicer and the predecessor trustee shall execute and deliver such
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor trustee all such rights, powers,
duties and obligations, and to enable the successor trustee to perform its
obligations hereunder.
(b) No successor trustee, 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
-281-
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 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 applicable Master Servicer and the Trustee may consider
necessary or desirable. If the applicable 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 a Master Servicer or the 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 die, become incapable of acting, resign or be removed, all
of its estates, properties,
-282-
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, the 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, the 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, the 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
documentation regarding the Pooled 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 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
-283-
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, each Mortgage Loan Purchase Agreement 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/or the
Special Servicer 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/or the Special Servicer, respectively, to the Certificate
Administrator and the Trustee since the Closing Date; (vi) the most recent
inspection report prepared by a Master Servicer or the 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 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 a Master Servicer or the 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, the Special 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 K-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
-284-
therein, confirmation executed by the requesting Person substantially in the
form of Exhibit K-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 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 at least "A+" from S&P and
"AA-" from Fitch, and a short-term unsecured debt rating from such Rating Agency
of at least "A-1" in the case of S&P and "F1" in the case of Fitch (or, in the
case of either Rating Agency, such lower rating(s) 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)
subsequent to the Closing Date 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 at least "AA-" from each
Rating Agency, 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 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 Fiscal Agent appointed pursuant to this Section
8.13(a) 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, appointed pursuant to this Section 8.13(a) shall make
representations and warranties with respect to itself that are comparable to
those made by the initial Fiscal Agent pursuant to Section 2.11. Notwithstanding
anything contained in this Agreement to the
-285-
contrary, any Fiscal Agent shall be entitled to all limitations on liability,
rights of reimbursement and indemnities to which the initial Fiscal Agent is
entitled hereunder.
(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) 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 the 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 (or, in the case of ABN AMRO, as LaSalle)
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 (or, in the case of ABN AMRO, as LaSalle)
resigns or is removed 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.
-286-
SECTION 8.15. Exchange Act Reporting.
(a) The Master Servicers, the Special Servicer, 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 of the related 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 3.14, 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, the 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 the certification required from the Special
Servicer shall contain the following information:
(i) a statement acknowledging that the officer of the
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;
-287-
(ii) a statement, based on the knowledge of the officer
of the 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 Special Servicer and/or payments and other collections
on the Specially Serviced Pooled Mortgage Loans and REO
Properties, 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 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 Special Servicer and/or payments and other
collections on the Specially Serviced Pooled Mortgage Loans
and REO Properties, includes all information of such type
available to the 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, based on the knowledge of the officer
of the Special Servicer that is signing such certification,
that the Special Servicer has disclosed all significant
deficiencies relating to the Special Servicer's compliance
with the minimum servicing standards during the period
covered by the subject Form 10-K in the report provided by
an independent public accountant, after conducting a review
in compliance with the Uniform Single Attestation Program
for Mortgage Bankers or similar procedure, as set forth in
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
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
the Special Servicer, such Performing Party shall, upon request, execute a
reasonable reliance certificate acknowledging the Certification Party's right 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 significant 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.
(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, the Special Servicer and the
-288-
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 event shall the Special
Servicer be required to execute any Form 10-K or any ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification.
(e) A copy of each ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification executed and
delivered hereunder shall be delivered to S&P by the Certificate Administrator
(whether or not it is the Certifying Person).
-289-
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of
All Pooled Mortgage Loans.
(a) Subject to Section 9.02 and, further, subject to the
rights of each B-Note Holder to acquire the related Pooled Mortgage Loan in
accordance with the related Mortgage Loan Pair Co-Lender Agreement, 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 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, one or both of the Master Servicers or the 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 Pooled 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 Pooled
Mortgage Loans remaining in the Trust Fund (exclusive of any REO Pooled 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 Special Servicer and approved by the Certificate Administrator and the
applicable Master Servicer, minus (C) if the purchaser is a Master Servicer or
the 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 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 Pooled 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 Pooled 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.
(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 Special Servicer,
in that order of preference, may at its option elect to purchase all the Pooled
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 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;
-290-
(C) if more than one Controlling Class Certificateholder or
group of Controlling Class Certificateholders desire to
purchase all of the Pooled Mortgage Loans and any REO
Properties remaining in the Trust Fund, 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 Pooled 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 Pooled Mortgage Loans and each REO Property remaining in the
Trust Fund by any Controlling Class Certificateholder(s), one or both of the
Master Servicers or the Special Servicer, such Person(s) shall: (i) deposit, or
deliver to the Master Servicers for deposit, in the 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 Pooled 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 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; provided that, if the
Trust Fund then includes any REO Property related to a Mortgage Loan Pair, then
any portion of the Termination Price that is allocable to principal of and
interest on the successor REO Mortgage Loan with respect to the related B-Note
Mortgage Loan shall be deposited in the related B-Note Account. 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
Accounts and/or the B-Note Accounts in accordance with the second preceding
sentence 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 Pooled 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 remaining Pooled 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 Pooled 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)
-291-
elect(s) to exchange all of the Certificates for all of the Pooled 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, the Special Servicer, the Certificate
Administrator, the Tax 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). 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 Pooled 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 remaining Pooled Mortgage Loans and
REO Properties to the Sole Certificateholder(s) (or any designee thereof).
(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 Pooled Mortgage Loans
and each REO Property remaining in the Trust Fund by one or both of the Master
Servicers, the 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
-292-
through an agent, shall take such reasonable steps to contact the remaining
non-tendering Certificateholders concerning the surrender of their Certificates
as it shall deem appropriate. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders following the first anniversary
of the delivery of such second notice to the non-tendering Certificateholders
shall be paid out of such funds. No interest shall accrue or be payable to any
former Holder on any amount held in trust hereunder. If by the second
anniversary of the delivery of such second notice, all of the Certificates shall
not have been surrendered for cancellation, 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), one or
both of the Master Servicers, and/or the Special Servicer purchase(s), or the
Sole Certificateholder(s) exchange(s) all of the Certificates for, all the
Pooled 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 regulations 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 Pooled Mortgage Loans and each
REO Property remaining in the Trust Fund to the relevant
Master Servicer(s), the Special Servicer, the applicable
Controlling Class Certificateholder(s) or the Sole
Certificateholder(s), as the case may be, in exchange for
cash and/or Certificates in accordance with Section 9.01;
and
(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.
-293-
SECTION 9.03. 1290 Avenue of the Americas REO Property.
References to "REO Property" and "REO Properties" in
Sections 9.01 and 9.02 shall be deemed to include the Trust's rights with
respect to any 1290 Avenue of the Americas REO Property and such rights shall be
taken into account in calculating the Termination Price.
-294-
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 the Special Servicer pursuant to Section 3.09(g)) and all
of the applicable income tax and other information returns for each Grantor
Trust 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.
-295-
(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 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 Tax
Administrator 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) a 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 Special Servicer, if
such tax arises out of or results from a breach by the Special Servicer of any
of its obligations under Article III or this Article X; or (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 Special Servicer, if such tax arises out of or results from a breach by the
Special Servicer of any of its
-296-
obligations under Article III or this Article X; (ii) a 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
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 the Special Servicer pursuant to Section
3.17(a) shall be charged to and paid by the Trust. Any such amounts payable by
the Trust in respect of taxes shall be paid by the Trustee 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 and Grantor Trust 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 Servicer, 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 Pooled
Mortgage Loan (except in connection with (A) a Breach or Document Defect
regarding any Pooled Mortgage Loan, (B) the foreclosure, default or reasonably
foreseeable material default of a Pooled 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 Pooled 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 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 Servicer 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,
-297-
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 in the
Mortgage Pool and any successor REO Pooled Mortgage Loans with respect thereto
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.
SECTION 10.02. Depositor, Master Servicers, Special Servicer
and Fiscal Agent to Cooperate with Tax
Administrator.
(a) The Depositor shall provide or cause to be provided to
the Tax Administrator, within ten 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 Servicer 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.
-298-
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 (exclusive of the B-Note Holders),
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 Servicer, 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 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 adversely affect a B-Note
Holder without the written consent of such 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 (exclusive of the B-Note Holders),
with the consent of the Holders of Certificates entitled to not less than 66
2/3% 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
-299-
Holders of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments received or
advanced on the Pooled 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) adversely affect a B-Note
Holder, without the consent of such B-Note Holder. The Trustee shall not agree
to amend any Pooled Mortgage Loan Purchase Agreement in any manner that would
adversely affect in any material respect the interests of the Holders of any
Class of Certificates, except with the consent of the Holders of all
Certificates of that Class. 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 Servicer 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 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.
-300-
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 the 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.
(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 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
-301-
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: ▇▇▇▇▇ ▇▇▇▇▇▇▇,
Senior Vice President (with a copy to Prudential Securities Incorporated, One
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Law Department);
(ii) in the case of PAR as a Master Servicer, Prudential Asset Resources Inc.,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇▇,
telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇; (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 Special Servicer, ARCap Servicing, Inc., ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, telecopy number (972)
580-3888 (with a copy to ▇▇▇▇▇ ▇▇▇▇▇, ARCap Servicing, Inc., ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, telecopy number (▇▇▇) ▇▇▇-▇▇▇▇); (v)
in the case of the Certificate Registrar, Certificate Administrator and Tax
Administrator, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration (CMBS),
Prudential Securities Secured Financing Corporation, 2003-PWR1, telecopy number:
(▇▇▇) ▇▇▇-▇▇▇▇; (vi) in the case of the Trustee, LaSalle Bank National
Association, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Asset Backed Securities Trust Services Group, Prudential Securities Secured
Financing Corporation, 2003-PWR1, telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇; (vii) in the
case of the Fiscal Agent, ABN AMRO Bank N.V., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed Securities Trust Services
Group, Prudential Securities Secured Financing Corporation, 2003-PWR1, telecopy
number: (▇▇▇) ▇▇▇-▇▇▇▇; (viii) in the case of the Rating Agencies, (A) Standard
& Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Commercial Mortgage
Surveillance telecopy number (▇▇▇) ▇▇▇-▇▇▇▇, and (B) Fitch, Inc., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Commercial Mortgage
Surveillance; and (ix) 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.
-302-
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; provided, however, that the 1290 Avenue of the Americas Master
Servicer and the 1290 Avenue of the Americas Special Servicer (and any "Other
Special Servicer" under any "Other Pooling and Servicing Agreement" (as each
such term is defined in the 1290 Avenue of the Americas Servicing Agreement))
are intended third-party beneficiaries with respect to any provisions in this
Agreement that relate to (1) the reimbursement of any Nonrecoverable Advances
made with respect to the 1290 Avenue of the Americas Pooled Mortgage Loan by the
1290 Avenue of the Americas Master Servicer, the 1290 Avenue of the Americas
Special Servicer or any such Other Special Servicer and (2) the indemnification
of the 1290 Avenue of the Americas Master Servicer, the 1290 Avenue of the
Americas Special Servicer or any such Other Special Servicer against any claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments
and any other costs, liabilities, fees and expenses, incurred in connection with
the 1290 Avenue of the Americas Servicing Agreement and relating to the 1290
Avenue of the Americas Pooled Mortgage Loan.
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, each 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 a Master Servicer or the Special Servicer and the appointment
of a successor;
-303-
(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 Pooled 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.
(c) Each of the Master Servicers and the Special Servicer
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;
(iii) each report prepared pursuant to Section 3.09(e); and
(iv) to the extent so required by a Rating Agency to confirm
any rating assigned thereby to any Class of Rated Certificates,
such other information in the possession of the applicable Master
Servicer and/or Special Servicer as such Rating Agency may
reasonably request.
(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 Servicer
shall each deliver to the Controlling Class Representative a copy of each notice
or other item of information such Person is
-304-
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.
-305-
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.
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
Depositor
By:
------------------------------------------------
Name:
Title:
PRUDENTIAL ASSET RESOURCES, INC.
a Master Servicer
By:
------------------------------------------------
Name:
Title:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
a Master Servicer
By:
------------------------------------------------
Name:
Title:
ARCAP SERVICING, INC.
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:
PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC
Ballston Common B-Note Holder and Renaissance B-Note
Holder
By:
------------------------------------------------
Name:
Title:
STATE OF ___________________ )
) ss.:
COUNTY OF _________________ )
On the ______ day of ______ 2003, 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 2003-PWR1
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
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
Pass-Through Rate: [____% Class [Principal Balance] [Notional Amount] of the
per annum][Variable] Class [ ] Certificates as of the Closing Date:
$__________
Closing Date: March 20, 2003 Initial Certificate [Principal Balance] [Notional
Amount] of this Certificate as of the Closing Date:
$__________
First Distribution Date: Aggregate Stated Principal Balance of the Mortgage
April 11, 2003 Loans as of the Closing Date ("Initial Pool
Balance"): $960,034,371
Master 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
Special Servicer: Fiscal Agent:
ARCap 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 OR BLUE SKY LAWS OF ANY STATE OR OTHER JURISDICTION WITHIN THE UNITED
STATES, ITS TERRITORIES AND POSSESSIONS. 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.]
IF OFFERS AND SALES OF THIS CERTIFICATE ARE MADE IN ANY JURISDICTION OUTSIDE OF
THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS, SUCH OFFERS AND SALES MUST
COMPLY WITH ALL APPLICABLE LAWS OF SUCH JURISDICTION.
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 PRUDENTIAL
SECURITIES SECURED FINANCING CORPORATION, LASALLE BANK NATIONAL ASSOCIATION, ABN
AMRO BANK N.V., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., PRUDENTIAL ASSET RESOURCES,
INC., ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, ARCAP SERVICING, INC., OR ANY OF
THEIR
A-1-2
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 ONE OR
MORE "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A
"REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[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 CLASS X-1 AND CLASS X-2 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 CLOSING DATE AND (B) THE COMMENCEMENT OF THE INITIAL
OFFERING OF THE CERTIFICATES IN RELIANCE ON REGULATION S, 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 March 1, 2003 (the
"Agreement"), among Prudential Securities Secured Financing
A-1-3
Corporation 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), ▇▇▇▇▇ 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 Servicing, Inc. as
special servicer (in such capacity, the "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, N.A., 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 Prudential Mortgage
Capital Funding, LLC, as holder of the Ballston Common B-Note (the "Ballston
Common B-Note Holder," which term includes any successor entity under the
Agreement) and as holder of the Renaissance B-Note (the "Renaissance 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
A-1-4
Liquidation Proceeds Account, the REO Account (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.
[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
securities or blue sky laws of any state or other jurisdiction within the United
States, its territories and possessions, or is otherwise made in accordance with
the Securities Act and such other securities or blue sky laws. If a transfer of
this Certificate is to be made without registration under the Securities Act,
then (except in limited circumstances specified in the Agreement) 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 F-1A to the Agreement; or (ii) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1B to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A or as Exhibit F-2B to the Agreement; or (iii) an Opinion
of Counsel satisfactory to the Trustee to the effect that such prospective
Transferee is an Institutional 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, the
Depositor, either Master Servicer, the 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 F-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
A-1-5
without registration under the Securities Act. Except as discussed below or
under such other limited circumstances as are provided in the Agreement, 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.]
[FOR PRIVATE CERTIFICATES][Except under such limited circumstances as
are provided in the Agreement, 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 in the form of a beneficial interest in this Certificate. If the
transfer occurs on or prior to the Release Date, then 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 F-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 foregoing, any interest
in a Rule 144A Global Certificate may be transferred by any Certificate Owner
holding such interest to any Institutional Accredited Investor (other than a
Qualified Institutional Buyer) 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, any other party to the Agreement, 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, the Special Servicer, 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 above.]
A-1-6
[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 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 investment
grade rated and 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 Pooled Mortgage Loan
Seller, either Master Servicer, the 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 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 Trustee (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
A-1-7
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.]
The Depositor, the Master Servicers, the Special Servicer, the Trustee,
the Certificate Administrator, the Tax Administrator, the Fiscal Agent, the
Certificate Registrar and any agent of the Depositor, either Master Servicer,
the Special Servicer, 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 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; (ii) the purchase by either
Master Servicer, the 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, the 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 Servicer, 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
66-2/3% of
A-1-8
the Voting Rights allocated to all of the Classes materially affected by the
amendment and, if adversely affected by the amendment, the Ballston Common
B-Note Holder, the Renaissance B-Note Holder and/or any third-party beneficiary.
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.
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-1-9
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed on its behalf by the Certificate Registrar.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.
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, N.A.
not in its individual capacity but solely as
Authenticating Agent
By:____________________________________
Authorized Representative
A-1-10
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.
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS R CERTIFICATES
CLASS R COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2003-PWR1
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
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
Closing Date: March 20, 2003 Percentage Interest evidenced by
this Class R Certificate: ___%
First Distribution Date: Aggregate Stated Principal Balance of the Mortgage
April 11, 2003 Loans as of the Closing Date ("Initial Pool
Balance"): $960,034,371
Master 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
Special Servicer: Fiscal Agent:
ARCap 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 OR BLUE SKY LAWS OF
ANY STATE OR OTHER JURISDICTION WITHIN THE UNITED STATES, ITS TERRITORIES AND
POSSESSIONS. 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.
IF OFFERS AND SALES OF THIS CERTIFICATE ARE MADE IN ANY JURISDICTION OUTSIDE OF
THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS, SUCH OFFERS AND SALES MUST
COMPLY WITH ALL APPLICABLE LAWS OF SUCH JURISDICTION.
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 PRUDENTIAL
SECURITIES SECURED FINANCING CORPORATION, LASALLE BANK NATIONAL ASSOCIATION, ABN
AMRO BANK N.V., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., PRUDENTIAL ASSET RESOURCES,
INC., ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, ARCAP 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
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
A-2-2
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 March 1, 2003
(the "Agreement"), among Prudential Securities Secured Financing Corporation 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), ▇▇▇▇▇ 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 Servicing, Inc. as special servicer
(in such capacity, the "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, N.A., 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 Prudential Mortgage Capital Funding, LLC, as holder of the
Ballston Common B-Note (the "Ballston Common B-Note Holder," which term includes
any successor entity under the Agreement) and as holder of the Renaissance
B-Note (the "Renaissance 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
A-2-3
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 securities or blue sky laws of any state
or other jurisdiction within the United States, its territories and possessions,
or is otherwise made in accordance with the Securities Act and such other
securities or blue sky laws. If a transfer of this Certificate is to be made
without registration under the Securities Act, then (except in limited
circumstances specified in the Agreement) 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
F-1A to the Agreement; or (ii) a certificate from the Certificateholder desiring
to effect such transfer substantially in the form attached as Exhibit F-1B to
the Agreement and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached as Exhibit F-2A to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Trustee to the effect that
such prospective Transferee is an Institutional 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, the Depositor, either Master Servicer, the 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, any
other party to the Agreement or the Certificate Registrar is obligated to
register or qualify the Class R 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,
A-2-4
indemnify the Depositor, the Trustee, the Certificate Administrator, the Tax
Administrator, each of the Master Servicers, the Special Servicer, 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
(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
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.
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 in this Certificate must be a
Permitted Transferee and shall promptly notify the Certificate Administrator 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 H-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. Notwithstanding the delivery of a Transfer
Affidavit and Agreement by a proposed Transferee, if a Responsible Officer of
either the Certificate Registrar or the Certificate Administrator 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.
A-2-5
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 H-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 Certificate Administrator 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 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 "Disqualified Non-United States Tax Person" or a "Disqualified
Partnership" (each as defined in the Agreement) and other than a foreign
permanent establishment or fixed base (each within the meaning of an applicable
income tax treaty) of a United States Person.
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-2-6
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 Servicers, the Special Servicer, the Trustee,
the Certificate Administrator, the Tax Administrator, the Fiscal Agent, the
Certificate Registrar and any agent of the Depositor, either Master Servicer,
the 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 Servicers, the 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; (ii) the purchase by either
Master Servicer, the 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, the 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 Servicers, the Special Servicer, 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
66-2/3% of the Voting Rights allocated to all of the Classes materially affected
by the amendment and, if adversely affected by the amendment, the Ballston
Common B-Note Holder, the Renaissance B-Note Holder and/or any third-party
beneficiary. 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.
A-2-7
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-2-8
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed on its behalf by the Certificate Registrar.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.
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, N.A.
not in its individual capacity but
solely as Authenticating Agent
By:___________________________________
Authorized Representative
A-2-9
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 V CERTIFICATES
CLASS V COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2003-PWR1
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
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION
Closing Date: March 20, 2003 Percentage Interest evidenced by this Class V
Certificate: ______%
First Distribution Date: Aggregate Stated Principal Balance of the Mortgage
April 11, 2003 Loans as of the Closing Date ("Initial Pool
Balance"): $960,034,371
Master 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
Special Servicer: Fiscal Agent:
ARCap 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 OR BLUE SKY LAWS OF
ANY STATE OR OTHER JURISDICTION WITHIN THE UNITED STATES, ITS TERRITORIES AND
POSSESSIONS. 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.
IF OFFERS AND SALES OF THIS CERTIFICATE ARE MADE IN ANY JURISDICTION OUTSIDE OF
THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS, SUCH OFFERS AND SALES MUST
COMPLY WITH ALL APPLICABLE LAWS OF SUCH JURISDICTION.
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 PRUDENTIAL
SECURITIES SECURED FINANCING CORPORATION, LASALLE BANK NATIONAL ASSOCIATION, ABN
AMRO BANK N.V., ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., PRUDENTIAL ASSET RESOURCES,
INC., ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, ARCAP 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 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 March 1, 2003
(the "Agreement"), among Prudential Securities Secured Financing Corporation as
depositor (the "Depositor," which term includes any successor entity under the
Agreement),
A-3-2
Prudential Asset Resources, Inc. ("PAR"), as a master servicer (in such
capacity, a "Master 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 Servicing, Inc. as special servicer
(in such capacity, the "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, N.A., 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 Prudential Mortgage Capital Funding, LLC, as holder of the
Ballston Common B-Note (the "Ballston Common B-Note Holder," which term includes
any successor entity under the Agreement) and as holder of the Renaissance
B-Note (the "Renaissance 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 V 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 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-3-3
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 securities or blue sky laws of any state
or other jurisdiction within the United States, its territories and possessions,
or is otherwise made in accordance with the Securities Act and such other
securities or blue sky laws. If a transfer of this Certificate is to be made
without registration under the Securities Act, then (except in limited
circumstances specified in the Agreement) 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
F-1A to the Agreement; or (ii) a certificate from the Certificateholder desiring
to effect such transfer substantially in the form attached as Exhibit F-1B to
the Agreement and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached either as Exhibit F-2A or as
Exhibit F-2B to the Agreement; or (iii) an Opinion of Counsel satisfactory to
the Trustee to the effect that such prospective Transferee is an Institutional
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, the Depositor, either Master Servicer, the
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.
None of the Depositor, the Trustee, the Certificate Administrator, any
other party to the Agreement 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 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,
the Special Servicer, 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
(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,
A-3-4
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 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.
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
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 Servicers, the Special Servicer, the Trustee,
the Certificate Administrator, the Tax Administrator, the Fiscal Agent, the
Certificate Registrar and any agent of the Depositor, either Master Servicer,
the 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 Servicers, the 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
A-3-5
REO Property remaining in the Trust Fund; (ii) the purchase by either Master
Servicer, the 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, the 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 Servicers, the Special Servicer, 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
66-2/3% of the Voting Rights allocated to all of the Classes materially affected
by the amendment and, if adversely affected by the amendment, the Ballston
Common B-Note Holder, the Renaissance B-Note Holder and/or any third-party
beneficiary. 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.
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-3-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed on its behalf by the Certificate Registrar.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.
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, N.A.
not in its individual capacity but
solely as Authenticating Agent
By:_________________________________
Authorized Representative
A-3-7
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-3-8
EXHIBIT B
LETTERS OF REPRESENTATIONS AMONG DEPOSITOR,
CERTIFICATE ADMINISTRATOR AND INITIAL DEPOSITARY
[See Attached]
B-1
EXHIBIT C-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
LaSalle Bank National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Asset Backed Securities Trust
Services Group--Prudential Securities Secured Financing Corporation, 2003-PWR1
Re: Prudential Securities Secured Financing Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2003-PWR1
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 March 1, 2003 (the "Pooling and Servicing Agreement"), among
Prudential Securities Secured Financing Corporation as depositor, Prudential
Asset Resources, Inc. as a master servicer (in such capacity, a "Master
Servicer"), ▇▇▇▇▇ Fargo Bank, National Association, as a master servicer (in
such capacity, a "Master Servicer"), ARCap Servicing, Inc. as special servicer,
▇▇▇▇▇ Fargo Bank Minnesota, N.A., as certificate administrator and as tax
administrator, ABN AMRO Bank N.V., as fiscal agent, Prudential Mortgage Capital
Funding, LLC, as Ballston Common B-Note holder and as Renaissance 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--Prudential Securities Secured Financing Corporation, 2003-PWR1
Re: Prudential Securities Secured Financing Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2003-PWR1
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 March 1, 2003 (the "Pooling and Servicing Agreement"), among
Prudential Securities Secured Financing Corporation as depositor, Prudential
Asset Resources, Inc. as a master servicer, ▇▇▇▇▇ Fargo Bank, National
Association, as a master servicer, ARCap Servicing, Inc. as special servicer (in
such capacity, the "Special Servicer"), ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as
certificate administrator and as tax administrator, ABN AMRO Bank N.V., as
fiscal agent, Prudential Mortgage Capital Funding, LLC, as Ballston Common
B-Note holder and as Renaissance B-Note holder and you as trustee (in such
capacity, the "Trustee"), the undersigned as 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 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
Code Criteria Review Threshold Release Threshold
------------------------------------------------------------------------------------------------------------------------
FINANCIAL CONDITIONS
------------------------------------------------------------------------------------------------------------------------
1 A Delinquent P&I Payments (greater than or equal
to) 2 payments. Due Current
------------------------------------------------------------------------------------------------------------------------
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) 30 days Servicing Advances have been repaid
(L38 and/or L39) delinquent
------------------------------------------------------------------------------------------------------------------------
1 E DSCR Absolute Level based on (less than) 1.10; (less DSCR above threshold or at
normalized Net Cash Flow. Use than) 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 Excludes DSCR above threshold or at
Absolute Level based on DSCR; CTL, ground leases and servicer's discretion after 3 mos.
normalized Net Cash Flow. Use 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 DSCR above threshold or at
from U/W or absolute level (less than or equal to) 70% U/W servicer's discretion after 3 mos.
based on annualized Net Cash stablized NCF number. Excludes
Flow. Absolute Level based on CTL, ground leases and single
annualized normalized Net Cash tenant NNN
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 within 6 months exercised
------------------------------------------------------------------------------------------------------------------------
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,
bankruptcy that comes to the whichever 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 DSCR above threshold
types (including lodging) Use (less 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 next 12 months Cumulative lease the expirations
that are (greater than) 30% of is (greater than or equal to) 5%
the NRA.
------------------------------------------------------------------------------------------------------------------------
4 E Bankruptcy of major tenant, (greater than) 30% NRA; Excludes When condition no longer exists
licenser or franchiser. (less than) 1.20 DSCR; 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 dark than) 1.20 DSCR; Excludes
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
LOAN LOAN PRO-SUP PROPERTY ENDING SCHEDULED LATE
NBR OFFICER ID NAME ▇▇▇.▇▇▇▇.▇▇. PAYMENT FEES
OUTSTANDING
UNALLOCATED P & I OUTSTANDING PAID FIRST DUE GRACE
SUSPENSE ADVANCES SERVICING ADVANCES TO DATE DATE DAYS COMMENTS
SPECIALLY SERVICED LOANS
▇-▇
▇▇▇▇▇▇▇ ▇-▇
▇▇▇▇ ▇▇ ▇&▇ 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]
-------------------------------------------------------------------------------------------
PRINCIPAL
TAB ADVANCE GROSS INTEREST ADMIN FEE
LOAN NUMBER NO BORROWERS NAME PAID TO DATE BALANCE ADVANCE BALANCE PORTION
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
TOTALS
===========================================================================================
-------------------------------------------------------------------------------------------
NET ACTUAL
INTEREST T & I SERVICING INTEREST ON TOTAL ADVANCE PRINCIPAL
ASER AMOUNT ADVANCE ADVANCE ADVANCE BALANCE ADVANCES BALANCE BALANCE
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
TOTALS
===========================================================================================
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
------------------------------------------- ------------------ -------------------- ---------------------------------
Within 30 days of annual or
Property Inspection Actual PDF/TIF 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 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.
D-7
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-8
EXHIBIT E
[RESERVED]
E-1
EXHIBIT F-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
HELD IN PHYSICAL FORM
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, ▇.▇.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Prudential Commercial Mortgage Trust 2003-PWR1
[OR OTHER CERTIFICATE REGISTRAR]
Re: Prudential Securities Secured Financing Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2003-PWR1, Class ______
Certificates [having an initial aggregate Certificate [Principal
Balance] [Notional Amount] as of March 20, 2003 (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 March 1, 2003 among Prudential Securities Secured Financing
Corporation, as Depositor, Prudential Asset Resources, Inc., as a Master
Servicer, ▇▇▇▇▇ Fargo Bank, National Association, as a Master Servicer, ARCap
Servicing, Inc., as Special Servicer, LaSalle Bank National Association, as
Trustee, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Certificate Administrator and as
Tax Administrator, ABN AMRO Bank N.V., as Fiscal Agent, and Prudential Mortgage
Capital Funding, LLC, as Ballston Common B-Note Holder and as Renaissance 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, and for the benefit of the Trustee and the Depositor, 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
F-1-1
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.
Very truly yours,
-----------------------------------
(Transferor)
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
F-1-2
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF
NON-REGISTERED CERTIFICATES HELD IN PHYSICAL FORM
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, ▇.▇.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Prudential Commercial Mortgage Trust 2003-PWR1
[OR OTHER CERTIFICATE REGISTRAR]
Re: Prudential Securities Secured Financing Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2003-PWR1, Class ______
Certificates [having an initial aggregate Certificate [Principal
Balance] [Notional Amount] as of March 20, 2003 (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 March 1, 2003 (the "Pooling and Servicing Agreement"), among Prudential
Securities Secured Financing Corporation, as Depositor, Prudential Asset
Resources, Inc., as a Master Servicer, ▇▇▇▇▇ Fargo Bank, National Association,
as a Master Servicer, ARCap Servicing, Inc., as Special Servicer, LaSalle Bank
National Association, as Trustee, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as
Certificate Administrator and as Tax Administrator, ABN AMRO Bank N.V., as
Fiscal Agent, and Prudential Mortgage Capital Funding, LLC, as Ballston Common
B-Note Holder and as Renaissance 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, and for the benefit of the
Trustee and the Depositor 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
F-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,
-----------------------------------------
(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:
-----------------------------------
F-2A-2
ANNEX 1 TO EXHIBIT F-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 such equity owner, as the case may be, must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
F-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.
F-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 Certificates
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the Transferred
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:
----------------------------
F-2A-5
ANNEX 2 TO EXHIBIT F-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).
F-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:
----------------------------------
F-2A-7
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF
NON-REGISTERED CERTIFICATES HELD IN PHYSICAL FORM
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, ▇.▇.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Prudential Commercial Mortgage Trust 2003-PWR1
[OR OTHER CERTIFICATE REGISTRAR]
Re: Prudential Securities Secured Financing Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2003-PWR1, Class ______
Certificates [having an initial aggregate Certificate [Principal
Balance] [Notional Amount] as of March 20, 2003 (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 March 1, 2003 (the "Pooling and Servicing Agreement"), among Prudential
Securities Secured Financing Corporation, as Depositor, Prudential Asset
Resources, Inc., as a Master Servicer, ▇▇▇▇▇ Fargo Bank, National Association,
as a Master Servicer, ARCap Servicing, Inc., as Special Servicer, LaSalle Bank
National Association, as Trustee, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as
Certificate Administrator and as Tax Administrator, ABN AMRO Bank N.V., as
Fiscal Agent, and Prudential Mortgage Capital Funding, LLC, as Ballston Common
B-Note Holder and as Renaissance 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, and for the benefit of the
Trustee and the Depositor 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.
F-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 F-1 to the Pooling and Servicing Agreement and a
certificate from the prospective transferee substantially in the form attached
either as Exhibit F-2A or as Exhibit F-2B to the Pooling and Servicing
Agreement; or (B) an Opinion of Counsel satisfactory to the Trustee to the
effect that, among other things, 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 OR BLUE
SKY LAWS OF ANY STATE OR OTHER JURISDICTION WITHIN THE UNITED STATES, ITS
TERRITORIES AND POSSESSIONS. 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.
IF OFFERS AND SALES OF THIS CERTIFICATE ARE MADE IN ANY JURISDICTION OUTSIDE
OF THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS, SUCH OFFERS AND SALES
MUST COMPLY WITH ALL APPLICABLE LAWS OF SUCH JURISDICTION.
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
F-2B-2
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.
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 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. 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 an
investment and can afford a complete loss of such investment.
F-2B-3
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:
--------------------------------
F-2B-4
EXHIBIT F-2C
FORM OF TRANSFEREE CERTIFICATE FOR CERTAIN
TRANSFERS OF INTERESTS IN RULE 144A GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: Prudential Securities Secured Financing Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2003-PWR1, Class __
Certificates having an initial aggregate Certificate
[Principal Balance] [Notional Amount] as of March 20,
2003 (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 March 1, 2003 (the "Pooling and Servicing Agreement"), among Prudential
Securities Secured Financing Corporation, as depositor (the "Depositor"),
Prudential Asset Resources, Inc., as a master servicer, ▇▇▇▇▇ Fargo Bank
National Association, as a master servicer, ARCap Servicing Inc. as special
servicer, LaSalle Bank National Association as trustee (the "Trustee"), ▇▇▇▇▇
Fargo Bank Minnesota, N.A., as certificate administrator and as tax
administrator, ABN AMRO Bank N.V. as fiscal agent and Prudential Mortgage
Capital Funding, LLC, as Ballston Common B-Note holder and as Renaissance 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.
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
F-2C-1
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 F-2C to the
Pooling and Servicing Agreement or (B) an opinion of counsel satisfactory to the
Transferor to the effect that the transferee is a Qualified Institutional Buyer
and 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 OR BLUE
SKY LAWS OF ANY STATE OR OTHER JURISDICTION WITHIN THE UNITED STATES, ITS
TERRITORIES AND POSSESSIONS. 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.
IF OFFERS AND SALES OF THIS CERTIFICATE ARE MADE IN ANY JURISDICTION OUTSIDE
OF THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS, SUCH OFFERS AND SALES
MUST COMPLY WITH ALL APPLICABLE LAWS OF SUCH JURISDICTION.
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,
F-2C-2
EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
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:
--------------------------------
F-2C-3
ANNEX 1 TO EXHIBIT F-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.
F-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.
F-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 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 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:
Date:
F-2C-6
ANNEX 2 TO EXHIBIT F-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
F-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 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 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:
F-2C-8
EXHIBIT F-2D
FORM OF TRANSFEREE CERTIFICATE FOR
TRANSFERS OF INTERESTS IN REGULATION S GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: Prudential Securities Secured Financing Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2003-PWR1, Class __
Certificates having an initial aggregate Certificate [Principal
Balance] [Notional Amount] as of March 20, 2003 (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 Company ("DTC") and the Depository Participants) in 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 March 1, 2003, among Prudential Securities Secured
Financing Corporation, as depositor, Prudential Asset Resources, Inc., as a
master servicer, ▇▇▇▇▇ Fargo Bank, National Association, as a master servicer,
ARCap Special Servicing, Inc., as special servicer, ▇▇▇▇▇ Fargo Bank Minnesota,
N.A., as certificate administrator and tax administrator, LaSalle Bank National
Association, as trustee, ABN AMRO Bank N.V., as fiscal agent, and Prudential
Mortgage Capital Funding, LLC, as Ballston Common B-Note Holder and as
Renaissance 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, that the Transferee is
not a United States Securities Person.
For purposes of this certification, "United States Securities Person"
means (i) any natural person resident in the United States, (ii) any partnership
or corporation organized or incorporated under the laws of the United States;
(iii) any estate of which any executor or administrator is a United States
Securities Person, other than any estate of which any professional fiduciary
acting as executor or administrator is a United States Securities Person if an
executor or administrator of the estate who is not a United States Securities
Person has sole or shared investment discretion with respect to the assets of
the estate and the estate is governed by foreign law, (iv) any trust of which
any trustee is a United States Securities Person, other than a trust of which
any professional fiduciary acting as trustee is a United States Securities
Person if a trustee who is not a United States Securities Person has sole or
shared investment discretion with respect to the trust assets and no beneficiary
of the trust (and no settlor if the trust is revocable) is a United
F-2D-1
States Securities Person, (v) any agency or branch of a foreign entity located
in the United States, unless the agency or branch operates for valid business
reasons and is engaged in the business of insurance or banking and is subject to
substantive insurance or banking regulation, respectively, in the jurisdiction
where located, (vi) any non-discretionary account or similar account (other than
an estate or trust) held by a dealer or other fiduciary for the benefit or
account of a United States Securities Person, (vii) any discretionary account or
similar account (other than an estate or trust) held by a dealer or other
fiduciary organized, incorporated or (if an individual) resident in the United
States, other than one held for the benefit or account of a non-United States
Securities Person by a dealer or other professional fiduciary organized,
incorporated or (if any individual) resident in the United States, (viii) any
partnership or corporation if (a) organized or incorporated under the laws of
any foreign jurisdiction and (b) formed by a United States Securities Person
principally for the purpose of investing in securities not registered under the
Securities Act, unless it is organized or incorporated, and owned, by
"accredited investors" (as defined in Rule 501(a)) under the United States
Securities Act of 1933, as amended (the "Securities Act"), who are not natural
persons, estates or trusts; provided, however, that the International Monetary
Fund, the International Bank for Reconstruction and Development, the
Inter-American Development Bank, the Asian Development Bank, the African
Development Bank, the United Nations and their agencies, affiliates and pension
plans, any other similar international organizations, their agencies, affiliates
and pension plans shall not constitute United States Securities Persons.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: __________, _____
By:
------------------------------
As, or agent for, the
beneficial owner(s) of the
Certificates to which this
certificate relates.
F-2D-2
EXHIBIT F-3A
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFER OF THE EXCESS SERVICING FEE RIGHTS
[Date]
Prudential Securities Secured Financing Corporation
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Prudential Securities Secured Financing Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2003-PWR1 (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 March 1, 2003 (the "Pooling and Servicing Agreement"),
among Prudential Securities Secured Financing Corporation, as depositor (the
"Depositor"), Prudential Asset Resources, Inc. as a master servicer, ▇▇▇▇▇ Fargo
Bank, National Association, as a master servicer, ARCap Servicing, Inc., as
special servicer, LaSalle Bank National Association, as trustee, ▇▇▇▇▇ Fargo
Bank Minnesota, N.A. as certificate administrator and as tax administrator, ABN
AMRO Bank N.V. as fiscal agent and Prudential Mortgage Capital Funding, LLC, as
Ballston Common B-Note holder and as Renaissance 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 right to receive the
Excess Servicing Fees with respect to the Serviced Mortgage Loans for which
_________________ is the applicable Master Servicer (the "Excess Servicing Fee
Right"), 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
F-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:
F-3A-2
EXHIBIT F-3B
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFER OF THE EXCESS SERVICING FEE RIGHTS
[Date]
Prudential Securities Secured Financing Corporation
One New York Plaza, 14th floor
New York, New York 10292
[APPLICABLE MASTER SERVICER]
Re: Prudential Securities Secured Financing Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2003-PWR1 (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 March 1, 2003 (the "Pooling and Servicing Agreement"),
among Prudential Securities Secured Financing Corporation, as depositor (the
"Depositor"), Prudential Asset Resources, Inc. as a master servicer, ▇▇▇▇▇ Fargo
Bank, National Association, as a master servicer, ARCap Servicing, Inc., as
special servicer, LaSalle Bank National Association, as trustee, ▇▇▇▇▇ Fargo
Bank Minnesota, N.A. as certificate administrator and as tax administrator, ABN
AMRO Bank N.V. as fiscal agent and Prudential Mortgage Capital Funding, LLC, as
Ballston Common B-Note holder and as Renaissance 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 and the applicable
Master Servicer, that:
1. The Transferee is acquiring right to receive Excess Servicing Fees
with respect to the Serviced Mortgage Loans as to which __________________ is
the applicable Master Servicer (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.
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
F-3B-1
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 F-3A to the Pooling and Servicing Agreement, and (B)
each of the applicable Master Servicer and the Depositor have received a
certificate from the prospective transferee substantially in the form attached
as Exhibit F-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 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.
F-3B-2
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:
F-3B-3
EXHIBIT G-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, ▇.▇.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Prudential Commercial Mortgage Trust 2003-PWR1
[OR OTHER CERTIFICATE REGISTRAR]
Re: Prudential Securities Secured Financing Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2003-PWR1, Class ______
Certificates [having an initial aggregate Certificate [Principal
Balance] [Notional Amount] as of March 20, 2003 (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 March
1, 2003 among Prudential Securities Secured Financing Corporation, as Depositor,
Prudential Asset Resources, Inc., as a Master Servicer, ▇▇▇▇▇ Fargo Bank,
National Association, as a Master Servicer, ARCap Servicing, Inc., as Special
Servicer, LaSalle Bank National Association, as Trustee, ▇▇▇▇▇ Fargo Bank
Minnesota, N.A., as Certificate Administrator and as Tax Administrator, ABN AMRO
Bank N.V., as Fiscal Agent, and Prudential Mortgage Capital Funding, LLC, as
Ballston Common B-Note Holder and as Renaissance 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
G-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, any Mortgage Loan Seller, either Master Servicer, the
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:
G-1-2
EXHIBIT G-2
FORM OF TRANSFEREE CERTIFICATE IN CONNECTION WITH ERISA
(NON-REGISTERED CERTIFICATES HELD IN BOOK ENTRY FORM)
[Date]
[TRANSFEROR]
Re: Prudential Securities Secured Financing Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2003-PWR1, Class ____
Certificates [having an initial aggregate [Principal Balance]
[Notional Amount] as of March 20, 2003 (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 March 1, 2003 (the "Pooling and Servicing Agreement"), among Prudential
Securities Secured Financing Corporation, as Depositor, Prudential Asset
Resources, Inc., as a Master Servicer, ▇▇▇▇▇ Fargo Bank, National Association,
as a Master Servicer, ARCap Servicing Inc., as Special Servicer, LaSalle Bank
National Association, as Trustee, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as
Certificate Administrator and Tax Administrator, ABN AMRO Bank N.V., as Fiscal
Agent, and Prudential Mortgage Capital Funding, LLC, as Ballston Common B-Note
Holder and as Renaissance 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
G-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, any Mortgage Loan Seller, either Master Servicer, the
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:
G-2-2
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
REGARDING RESIDUAL INTEREST CERTIFICATES
TRANSFER AFFIDAVIT PURSUANT TO
SECTIONS 860D(A)(6)(A) AND 860E(E)(4) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
Re: Prudential Securities Secured Financing Corporation, Series
2003-PWR1 (the "Certificates") issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of March 1, 2003, among Prudential Securities Secured Financing
Corporation as Depositor, ▇▇▇▇▇ Fargo Bank, National Association
and Prudential Asset Resources, Inc., as Master Servicers, ARCap
Servicing, Inc. as Special Servicer, ▇▇▇▇▇ Fargo Bank Minnesota,
N.A. as Certificate Administrator and as Tax Administrator, LaSalle
Bank National Association as Trustee, ABN AMRO Bank N.V. as Fiscal
Agent and Prudential Mortgage Capital Funding, LLC as Ballston
Common B-Note Holder and as Renaissance B-Note Holder
STATE OF )
) ss.: ____________________
COUNTY OF )
I, [ ], under penalties of perjury, declare that, to the best of my
knowledge and belief, the following representations are true, correct and
complete, and being first sworn, depose and say that:
1. I am the [ ] of [ ] (the "Purchaser"), on behalf of which I have the
authority to make this affidavit.
2. The Purchaser is acquiring Class R Certificates representing [o]% of
the residual interest in each of the real estate mortgage investment conduits
(each, a "REMIC") designated as "REMIC I", "REMIC II" and "REMIC III",
respectively, relating to the Certificates for which an election has been or is
to be made under Section 860D of the Internal Revenue Code of 1986 (the "Code").
3. The Purchaser is a Permitted Transferee (as defined in the Pooling
and Servicing Agreement) and is not a "Disqualified Organization" (as defined
below), and that the Purchaser is not acquiring the Class R Certificates for the
account of, or as agent or nominee of, or with a view to the transfer of direct
or indirect record or beneficial ownership thereof, to a person that is not a
Permitted Transferee or to a Disqualified Organization. For the purposes hereof,
a Disqualified Organization is any of the following: (i) the United States, (ii)
any state or political subdivision thereof, (iii) any foreign government, (iv)
any international organization, (v)
H-1-1
any agency or instrumentality of any of the foregoing, (vi) any tax-exempt
organization (other than a cooperative 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, (vii) any
organization described in Section 1381(a)(2)(C) of the Code, or (viii) any other
entity designated as a "disqualified organization" by relevant legislation
amending the REMIC Provisions and in effect at or proposed to be effective as of
the time of determination. In addition, a corporation will not be treated as an
instrumentality of the United States or of any state or political subdivision
thereof if all of its activities are subject to tax (except for the Federal Home
Loan Mortgage Corporation) and a majority of its board of directors is not
selected by such governmental unit. The terms "United States" and "international
organization" shall have the meanings set forth in Section 7701 of the Code.
4. The Purchaser is not a foreign permanent establishment or a fixed
base (within the meaning of any applicable income tax treaty between the United
States and any foreign jurisdiction) of a United States Tax Person.
5. The Purchaser will not cause the income from the Class R
Certificates to be attributable to a foreign permanent establishment or fixed
base (within the meaning of any applicable income tax treaty between the United
States and any foreign jurisdiction) of a United States Tax Person.
6. The Purchaser acknowledges that Section 860E(e) of the Code would
impose a substantial tax on the transferor or, in certain circumstances, on an
agent for the transferee, with respect to any transfer of any interest in any
Class R Certificates to a Disqualified Organization.
7. No purpose of the acquisition of the Class R Certificates is to
impede the assessment or collection of tax
8. [Check the statement that applies]
o If the Transferor requires the safe harbor under Treasury Regulation Section
1.860E-1 to apply:
____ a) In accordance with Treasury Regulation Section 1.860E-1, the
Purchaser (i) is an "eligible corporation" as defined in Section
1.860E-1(c)(6)(i) of the Treasury Regulations, as to which the income of Class R
Certificates will only be subject to taxation in the United States, (ii) has,
and has had in each of its two preceding fiscal years, gross assets for
financial reporting purposes (excluding any obligation of a person related to
the transferee within the meaning of Section 1.860E-1(c)(6)(ii) of the Treasury
Regulations or any other assets if a principal purpose for holding or acquiring
such asset is to satisfy this condition) in excess of $100 million and net
assets of $10 million, and (iii) hereby agrees only to transfer the Certificate
to another corporation meeting the criteria set forth in Treasury Regulation
Section 1.860E-1;
or
H-1-2
_____ b)The Purchaser is a United States Person and the consideration
paid to the Purchaser for accepting the Class R Certificates is greater than the
present value of the anticipated net federal income taxes and tax benefits ("Tax
Liability Present Value") associated with owning such Certificates, with such
present value computed using a discount rate equal to the "Federal short-term
rate" prescribed by Section 1274 of the Code as of the date hereof or, to the
extent it is not, if the Transferee has asserted that it regularly borrows, in
the ordinary course of its trade or business, substantial funds from unrelated
third parties at a lower interest rate than such applicable federal rate and the
consideration paid to the Purchaser is greater than the Tax Liability Present
Value using such lower interest rate as the discount rate, the transactions with
the unrelated third party lenders, the interest rate or rates, the date or dates
of such transactions, and the maturity dates or, in the case of adjustable rate
debt instruments, the relevant adjustment dates or periods, with respect to such
borrowings, are accurately stated in Exhibit A to this letter.
o If the Transferor does not require the safe harbor under Treasury Regulation
Section 1.860E-1 to apply:
_____ c)The Purchaser is a "United States person" as defined in Section
7701(a) of the Code and the regulations promulgated thereunder (the Purchaser's
U.S. taxpayer identification number is __________). The Purchaser is not
classified as a partnership under the Code (or, if so classified, all of its
beneficial owners are United States persons).
9. The Purchaser historically has paid its debts as they have come due
and intends to pay its debts as they come due in the future and the Purchaser
intends to pay taxes associated with holding the Class R Certificates as they
become due.
10. The Purchaser understands that it may incur tax liabilities with
respect to the Class R Certificates in excess of any cash flows generated by
such Certificates.
11. The Purchaser will not transfer the Class R Certificates to any
person or entity as to which the Purchaser has not received an affidavit
substantially in the form of this affidavit or to any person or entity as to
which the Purchaser has actual knowledge that the requirements set forth in
paragraphs 3, 4, 5, 7 or 9 hereof are not satisfied, or to any person or entity
with respect to which the Purchaser has not (at the time of such transfer)
satisfied the requirements under the Code to conduct a reasonable investigation
of the financial condition of such person or entity (or its current beneficial
owners if such person or entity is classified as a partnership under the Code).
12. The Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the prohibition
against transferring the Class R Certificates to a Disqualified Organization, an
agent thereof or a person that does not satisfy the requirements of paragraphs 7
and 9.
H-1-3
13. The Purchaser consents to the designation of the Tax Administrator
as the agent of the Tax Matters Person of the REMIC I, REMIC II and REMIC III
pursuant to Section 10.01(d) of the Pooling and Servicing Agreement.
Capitalized terms used but not defined herein have the meanings
assigned thereto in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be duly
executed on its behalf by its duly authorized officer this ___ day of
________________.
By:
-----------------------------------
Name:
Title:
Personally appeared before me [ ] known or proved to me to be the same
person who executed the foregoing instrument and to be a [ ] of the Purchaser,
and acknowledged to me that he/she executed the same as his/her free act and
deed and as the free act and deed of the Purchaser.
Subscribed and sworn before me this
____ day of _______________.
---------------------------------------
Notary Public
H-1-4
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
CLASS R CERTIFICATES
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, ▇.▇.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Prudential Commercial Mortgage Trust 2003-PWR1
[OR OTHER CERTIFICATE REGISTRAR]
Re: Prudential Securities Secured Financing Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2003-PWR1, 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 March
1, 2003 among Prudential Securities Secured Financing Corporation, as Depositor,
Prudential Asset Resources, Inc., as a Master Servicer, ▇▇▇▇▇ Fargo Bank,
National Association, as a Master Servicer, ARCap Servicing, Inc., as Special
Servicer, LaSalle Bank National Association, as Trustee, ▇▇▇▇▇ Fargo Bank
Minnesota, N.A., as Certificate Administrator and as Tax Administrator, ABN AMRO
Bank N.V., as Fiscal Agent, and Prudential Mortgage Capital Funding, LLC, as
Ballston Common B-Note Holder and as Renaissance 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:
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 H-1. The Transferor does not know or believe that
any representation contained therein is false.
H-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:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF NOTICE AND ACKNOWLEDGMENT
CONCERNING REPLACEMENT OF SPECIAL SERVICER
[Date]
Standard & Poor's Ratings Services
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: __________________
Fitch, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: __________________
Re: Prudential Securities Secured Financing Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2003-PWR1
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 3.25 of the Pooling
and Servicing Agreement, dated as of March 1, 2003 (the "Agreement") among
Prudential Securities Secured Financing Corporation, as Depositor, Prudential
Asset Resources, Inc., as a Master Servicer, ▇▇▇▇▇ Fargo Bank, National
Association, as a Master Servicer, ARCap Servicing Inc., as Special Servicer,
the undersigned as Trustee, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Certificate
Administrator and as Tax Administrator, ABN AMRO Bank N.V., as Fiscal Agent, and
Prudential Mortgage Capital Funding, LLC, as Ballston Common B-Note Holder and
as Renaissance B-Note Holder, and relating to Prudential Securities Secured
Financing Corporation, Commercial Mortgage Pass-Through Certificates, Series
2003-PWR1 (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 Special Servicer
under the Agreement.
The designation of ____________________________ as 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
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.
I-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:
STANDARD & POOR'S RATINGS SERVICES
By:
----------------------------------
Name:
Title:
Date:
FITCH, INC.
By:
----------------------------------
Name:
Title:
Date:
I-1-2
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
[CERTIFICATE ADMINISTRATOR]
[TAX ADMINISTRATOR]
[TRUSTEE]
[FISCAL AGENT]
[MASTER SERVICERS]
[DEPOSITOR]
[BALLSTON COMMON B-NOTE HOLDER]
[RENAISSANCE B-NOTE HOLDER]
Re: Prudential Securities Secured Financing Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2003-PWR1
Ladies and Gentlemen:
Pursuant to Section 3.25 of the Pooling and Servicing Agreement, dated
as of March 1, 2003 relating to Prudential Securities Secured Financing
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2003-PWR1
(the "Agreement"), the undersigned hereby agrees with all the other parties to
the Agreement that the undersigned shall serve as 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 Special
Servicer. The undersigned hereby makes, as of the date hereof, the
representations and warranties set forth in Section 2.07 of the Agreement, with
the following corrections with respect to type of entity and jurisdiction of
organization: ____________________.
----------------------------
By:
-------------------------
Name:
Title:
I-2-1
EXHIBIT J
FORM OF UCC-1 FINANCING STATEMENT
DEBTOR:
Prudential Securities Secured Financing Corporation
One New York Plaza, 14th floor
New York, New York 10292
SECURED PARTY:
LaSalle Bank National Association
as Trustee for the registered holders of
Prudential Securities Secured Financing Corporation,
Commercial Mortgage Pass-Through
Certificates, Series 2003-PWR1
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Asset Backed Securities Trust
Services Group--Prudential Securities Secured Financing Corporation, 2003-PWR1
TEXT:
See Exhibit I Attached Hereto
J-1
EXHIBIT I TO EXHIBIT J
This Exhibit I is attached to and incorporated in a financing statement
pertaining to Prudential Securities Secured Financing Corporation 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
2003-PWR1 Certificates (referred to as the "Secured Party" for purposes of this
financing statement only), under that certain Pooling and Servicing Agreement,
dated as of March 1, 2003 (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, a "Master Servicer"), ▇▇▇▇▇ Fargo
Bank, National Association, as a Master Servicer (in such capacity, a "Master
Servicer"), ARCap Servicing, Inc. as special servicer (in such capacity, the
"Special Servicer"), ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as certificate
administrator and as tax administrator, ABN AMRO Bank N.V. as fiscal agent, and
Prudential Mortgage Capital Funding, LLC, as Ballston Common B-Note holder and
as Renaissance B-Note holder, relating to the issuance of the Debtor's
Commercial Mortgage Pass-Through Certificates, Series 2003-PWR1 (collectively,
the "Series 2003-PWR1 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;
J-2
6. (a) the REO Account required to be maintained by the Special
Servicer pursuant to the Pooling and Servicing Agreement, (b) all
funds from time to time on deposit in the 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 Servicer 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 Distribution Account, the Excess Liquidation Proceeds
Account and the Interest Reserve 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 such accounts, (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;
9. The Pooled Mortgage Loan Purchase Agreements and all rights of the
Debtor thereunder.
10. 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 a Master Servicer or the Special Servicer; and
11. All income, payments, products and proceeds of any of the
foregoing, together with any additions thereto or substitutions
therefor.
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
J-3
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.
J-4
EXHIBIT A TO EXHIBIT I TO EXHIBIT J
SCHEDULE OF MORTGAGE LOANS
[See Schedule I]
J-5
EXHIBIT K-1
INFORMATION REQUEST FROM CERTIFICATEHOLDER
OR CERTIFICATE OWNER
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration (CMBS)
Re: Prudential Securities Secured Financing Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2003-PWR1
In accordance with the Pooling and Servicing Agreement, dated as of
March 1, 2003 (the "Pooling and Servicing Agreement"), among Prudential
Securities Secured Financing Corporation as Depositor, Prudential Asset
Resources, Inc., as a Master Servicer, ▇▇▇▇▇ Fargo Bank, National Association,
as a Master Servicer, ARCap Servicing, Inc., as Special Servicer, LaSalle Bank
National Association, as Trustee, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as
Certificate Administrator and as Tax Administrator, ABN AMRO Bank N.V., as
Fiscal Agent, and Prudential Mortgage Capital Funding, LLC, as Ballston Common
B-Note Holder and as Renaissance B-Note Holder, with respect to the Prudential
Securities Secured Financing Corporation, Commercial Mortgage Pass-Through
Certificates, Series 2003-PWR1 (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 4.02(f) 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.
K-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.:
K-1-2
EXHIBIT K-2
INFORMATION REQUEST FROM PROSPECTIVE INVESTOR
[Date]
▇▇▇▇▇ Fargo Bank Minnesota, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration (CMBS)
Re: Prudential Securities Secured Financing Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2003-PWR1
In accordance with the Pooling and Servicing Agreement, dated as of
March 1, 2003 (the "Pooling and Servicing Agreement"), among Prudential
Securities Secured Financing Corporation, as Depositor, Prudential Asset
Resources, Inc., as a Master Servicer, ▇▇▇▇▇ Fargo Bank, National Association,
as a Master Servicer, ARCap Servicing, Inc., as Special Servicer, LaSalle Bank
National Association, as Trustee, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as
Certificate Administrator and as Tax Administrator, ABN AMRO Bank N.V., as
Fiscal Agent and Prudential Mortgage Capital Funding, LLC, as Ballston Common
B-Note Holder and as Renaissance B-Note Holder, with respect to the Prudential
Securities Secured Financing Corporation Commercial Mortgage Pass-Through
Certificates, Series 2003-PWR1 (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 4.02(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
K-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.:
K-2-2
EXHIBIT L
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 holders of the Prudential Securities Secured Financing
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2003-PWR1
("Trustee"), under that certain Pooling and Servicing Agreement dated as of
March 1, 2003 (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 mortgage loans identified on
Schedule __ to the Pooling and Servicing Agreement in connection with the
performance by [SHORT NAME] of its duties as [Master Servicer] [Special
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.
L-1
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this _____ day of _________, 20__.
LASALLE BANK NATIONAL ASSOCIATION,
as trustee for the holder of Prudential
Securities Secured Financing Corporation,
Commercial Mortgage Pass-Through
Certificates, Series 2003-PWR1
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
L-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)
▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF BALLSTON COMMON CO-LENDER AGREEMENT
--------------------------------------------------------------------------------
CO-LENDER AGREEMENT
Dated as of March 1, 2003
by and between
Prudential Mortgage Capital Funding, LLC,
(Initial Note A Holder)
and
Prudential Mortgage Capital Funding, LLC
(Note B Holder)
--------------------------------------------------------------------------------
M-1-1
THIS CO-LENDER AGREEMENT (this "Agreement"), dated as of March
1, 2003, by and between PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC, a Delaware
limited liability company, having an address of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Center Four, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (together with its successors
in interest, the "Initial Note A Holder" and, together with all of its other
successors and assigns, the "Note A Holder") and PRUDENTIAL MORTGAGE CAPITAL
FUNDING, LLC, a Delaware limited liability company, having an address of ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Center Four, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
(together with its successors and assigns, the "Note B Holder").
W I T N E S S E T H:
WHEREAS, pursuant to that certain deed of trust and security
agreement, dated as of December 20, 2002 (collectively, the "Mortgage"), Initial
Note A Holder has originated or acquired a certain mortgage loan in the
principal amount as of the date hereof of $49,888,643.91 ("Loan A") evidenced by
a Promissory Note A in the principal amount as of the date hereof of
$49,888,643.91 ("Note A") and a certain mortgage loan in the principal amount as
of the date hereof of $3,995,928.64 ("Loan B") evidenced by a Promissory Note B
in the principal amount as of the date hereof of $3,995,928.64 ("Note B"), which
Loan A and Loan B shall hereinafter be collectively referred to as the "Mortgage
Loans";
WHEREAS, the Mortgage Loans are secured by the Mortgage, as
more particularly described in the attached Mortgage Loan Schedule, on parcels
of real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Mortgaged Property");
WHEREAS, on or about the date hereof, the Initial Note A
Holder, the Note B Holder, Prudential Asset Resources, Inc., as master servicer
(in its capacity as such, the "Interim Master Servicer") and as special servicer
(in its capacity as such, the "Interim Special Servicer") intend to enter into
that certain Interim Servicing Agreement (the "Interim Servicing Agreement")
with respect to the servicing of the Mortgage Loans; and
WHEREAS, the Initial Note A Holder intends to transfer Note A
at some time in the future to a trust pursuant to a pooling and servicing
agreement, which will issue interests and certificates, which certificates
represent, in part, interests in Note A;
WHEREAS, the Note B will not be assigned to the trustee in
connection with the Securitization; and
WHEREAS, the Initial Note A Holder and Note B Holder desire to
set forth their understanding with respect to the relative priority of Note A
and Note B and certain other matters, all as hereinafter set forth.
NOW, THEREFORE, in consideration of the covenants and
agreements hereinafter set forth and other good and valuable consideration, the
mutual receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree, with respect to Mortgage Loans, as follows:
1. Definitions; Conflicts. References to a "Section" or the
"recitals" are, unless otherwise specified, to a Section or the recitals of this
Agreement. Capitalized terms not
M-1-2
otherwise defined herein shall have the meaning ascribed thereto in the
Servicing Agreement (as hereinafter defined). Whenever used in this Agreement,
the following terms shall have the respective meanings set forth below unless
the context clearly requires otherwise.
"Additional Trust Fund Expenses" shall have the meaning
assigned such term in the Servicing Agreement.
"Adjustment Date" shall have the meaning assigned such term in
Section 32(a).
"Adjusted Note A Principal Balance" shall mean the Note A
Principal Balance on the Adjustment Date, after giving effect to any Purchase
Price Adjustment Amounts payable under Section 32.
"Adjusted Note B Principal Balance" shall mean the Note B
Principal Balance on the Adjustment Date, after giving effect to any Purchase
Price Adjustment Amounts payable under Section 32.
"Adjustment Notice" shall have the meaning assigned such term
in Section 32(a).
"Advance Interest" shall mean: (i) if prior to the
Securitization Date, Advance Interest Amount, as such term is defined in the
Interim Servicing Agreement and (ii) if on and after the Securitization Date,
Advance Interest, as such term is defined in the Securitization Servicing
Agreement.
"Advance Interest Rate" shall have the meaning assigned such
term in the Servicing Agreement.
"Advance" shall have the meaning assigned to such term in the
Servicing Agreement.
"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 Co-Lender Agreement, the exhibits
and schedule hereto and all amendments hereof and supplements hereto.
"Appraisal" has the meaning set forth in the Securitization
Servicing Agreement.
"Appraisal Reduction Amount" shall have the meaning given such
term in the Securitization Servicing Agreement.
M-1-3
"Appraisal Trigger Event" shall have the meaning given such
term in the Securitization Servicing Agreement.
"Balloon Payment" shall have the meaning assigned to such term
in the Servicing Agreement.
"Bankruptcy Code" shall mean the United States Bankruptcy
Code, as amended from time to time, any successor statute or rule promulgated
thereto.
"Business Day" shall have the meaning assigned such term in
the Servicing Agreement.
"Closing Date" shall mean March 1, 2003.
"Collection Account" shall mean the account or accounts to be
established under the Servicing Agreement to hold principal and interest
payments on the Mortgage Loans.
"Control Appraisal Event" shall mean that, as of any date of
determination (a) the then outstanding principal balance of Loan B minus (b) the
sum of (1) any Appraisal Reduction Amounts for the Mortgage Loans, (2) any
Realized Losses attributable to the Mortgage Loans, and (3) any Additional Trust
Fund Expenses attributable to the Mortgage Loans, is less than 25% of the
initial Note B Principal Balance.
"Controlling Class Representative" shall have the meaning
given such term in the Securitization Servicing Agreement when Note A is an
asset of a Securitization and shall otherwise mean the Person appointed by the
Controlling Holder pursuant to Section 18(d) of this Agreement.
"Controlling Holder" shall have the meaning assigned such term
in Section 18(a) hereof.
"Defaulted Mortgage Loan Purchase Price" shall mean, with
respect to Loan A, 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
Payment Date following the date on which such purchase occurs, provided payment
is made in good funds by 11:00 a.m. New York local time, (c) any other amounts
due under the Mortgage Loans that is allocable to Note A, (d) any unreimbursed
Advances by the Note A Holder with respect to or allocable to the Mortgage Loans
or Note A, and (e) any accrued and unpaid Advance Interest due on account of
Advances made with respect to or allocable to the Mortgage Loans or Note A
thereon and expenses allocable to the Mortgage Loans or Note A pursuant to the
Servicing Agreement. In determining the Defaulted Mortgage Loan Purchase Price,
amounts payable by the related Mortgage Loan Borrower as a Prepayment Premium
shall not be included. Notwithstanding the foregoing, from and after the date
Note A is included as an asset in a Securitization Trust and until such time
Note A ceases to be an asset of the trust fund created pursuant to the
Securitization Servicing Agreement, the term "Defaulted Mortgage Loan Purchase
Price" shall have the same meaning as the term "Purchase Price" as such term is
defined in the Securitization Servicing Agreement.
M-1-4
"Depositor" shall mean that Person to serve as the depositor
in connection with a Securitization.
"Eligibility Requirements" means, with respect to any Person,
that such Person (i) has total assets (in name or under management) in excess of
$600,000,000 and (except with respect to a pension advisory firm or similar
fiduciary) capital/statutory surplus or shareholder's equity of $250,000,000 and
(ii) is regularly engaged in the business of making or owning commercial real
estate loans or operating commercial mortgage properties.
"Event of Default" shall mean, with respect to the Mortgage
Loans, an "Event of Default" as defined in the Mortgage.
"Interest Rate" shall mean, with respect to either Mortgage
Loan, the annual rate at which interest accrues thereon.
"Insolvency Proceeding" shall mean any proceeding under Title
11 of the United States Code (11 U.S.C. Sec. 101 et. seq.) or any other
insolvency, liquidation, reorganization or other similar proceeding concerning
the Mortgage Loan Borrower, any action for the dissolution of Mortgage Loan
Borrower, any proceeding (judicial or otherwise) concerning the application of
the assets of Mortgage Loan Borrower, for the benefit of its creditors, the
appointment of or any proceeding seeking the appointment of a trustee, receiver
or other similar custodian for all or any substantial part of the assets of
Mortgage Loan Borrower or any other action concerning the adjustment of the
debts of Mortgage Loan Borrower, the cessation of business by Mortgage Loan
Borrower, except following a sale, transfer or other disposition of all or
substantially all of the assets of Mortgage Loan Borrower in a transaction
permitted under the Mortgage Loan Documents.
"Insurance Proceeds" shall have the meaning assigned to such
term in the Servicing Agreement.
"Interim Master Servicer" shall have the meaning assigned such
term in the recitals.
"Interim Servicing Agreement" shall have the meaning assigned
such term in the recitals.
"Interim Special Servicer" shall have the meaning assigned
such term in the recitals.
"Liquidation Proceeds" shall have the meaning assigned to such
term in the Servicing Agreement.
"Loan A" shall have the meaning assigned such term in the
recitals.
"Loan B" shall have the meaning assigned such term in the
recitals.
"Master Servicer" shall have the meaning assigned to such term
in the Servicing Agreement.
M-1-5
"Monthly Payment" shall have the meaning assigned to such term
in the Servicing Agreement.
"Mortgage" shall have the meaning assigned such term in the
recitals.
"Mortgage Interest Rate" shall mean the Note A Interest Rate
or the Note B Interest Rate.
"Mortgage Loan Borrower" shall mean the borrower or borrowers
under the Mortgage Loans.
"Mortgage Loan Borrower Related Parties" shall have the
meaning assigned such term in Section 16.
"Mortgage Loan Documents" shall mean Note A, Note B, the
Mortgage, and all other documents now or hereafter evidencing and/or securing
the Mortgage Loans.
"Mortgage Loan Principal Balance" at any date of
determination, shall mean the sum of the Note A Principal Balance and the Note B
Principal Balance.
"Mortgage Loans" shall have the meaning assigned such term in
the recitals.
"Mortgage Loan Schedule" shall mean the schedule in the form
attached hereto as Exhibit A, which schedule sets forth the principal terms of
the Mortgage Loans.
"Mortgaged Property" shall have the meaning assigned such term
in the recitals.
"Non-Controlling Holder" shall have the meaning assigned such
term in Section 18(b) hereof.
"Note A" shall have the meaning assigned such term in the
recitals.
"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 Mortgage Loan Schedule.
"Note A Ledger" shall mean the ledger entries made by the
Servicer with respect to amounts on deposit in the Collection Account, or the
subaccount thereof, with respect to Note A pursuant to the Servicing Agreement,
which amounts are held on behalf of the Note A Holder.
"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 Principal Balance" shall mean, at any time of
determination, the Initial Note A Principal Balance as set forth in the Mortgage
Loan Schedule, less any payments of principal thereon, forgiveness of any
principal, or other reductions in such amount pursuant to Sections 3, 4, or 5,
as applicable.
M-1-6
"Note B" shall have the meaning assigned such term in the
recitals.
"Note B Holder" shall mean Prudential Mortgage Capital
Funding, LLC, a Delaware limited liability company, 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 Mortgage Loan Schedule, as modified in connection with any
modification to the Mortgage Loans.
"Note B Ledger" shall mean the ledger entries made by the
Servicer with respect to amounts on deposit in the Collection Account, or the
subaccount thereof, with respect to Note B pursuant to the Servicing Agreement,
which amounts are held on behalf of the Note B Holder.
"Note B Percentage Interest" shall mean, as of any date, the
ratio of the Note B Principal Balance to the Mortgage Loan Principal Balance.
"Note B Principal Balance" shall mean at any time of
determination, the Initial Note B Principal Balance as set forth in the Mortgage
Loan Schedule, less any payments of principal thereon, forgiveness of any
principal, or other reductions in such amount pursuant to Sections 3, 4, or 5,
as applicable.
"Payment Date" shall mean the monthly payment date set forth
in the Mortgage Loan Agreement.
"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.
"Permitted Fund Manager" means any Person that on the date of
determination is (i) any nationally-recognized manager of investment funds
investing in debt or equity interests relating to commercial real estate, (ii)
investing through a fund with committed capital of at least $250,000,000 and
(iii) not subject to a Proceeding.
"Person" shall have the meaning assigned such term in the
Servicing Agreement.
"Prepayment Premium" shall mean, with respect to the Mortgage
Loans, any prepayment premium, spread maintenance premium, yield maintenance
premium or similar fee required to be paid in connection with a prepayment of
the Mortgage Loans.
"Proceeding" shall mean any case, proceeding or other action,
whether voluntary or involuntary, against a Person under any existing or future
law of any jurisdiction relating to bankruptcy, insolvency, reorganization or
relief of debtors.
"Purchase Price Adjustment Amount" shall have the meaning
assigned such term in Section 32(b).
M-1-7
"Qualified Institutional Lender" means one or more of the
following:
(i) a real estate investment trust, bank, saving and loan
association, investment bank, insurance company, trust company,
commercial credit corporation, pension plan, pension fund or pension
advisory firm, mutual fund, government entity or plan, provided that
any such Person referred to in this clause (i) satisfies the
Eligibility Requirements;
(ii) an investment company, money management firm or
"qualified institutional buyer" within the meaning of Rule 144A under
the Securities Act of 1933, as amended, or an institutional "accredited
investor" within the meaning of Regulation D under the Securities Act
of 1933, as amended, provided that any such Person referred to in this
clause (ii) satisfies the Eligibility Requirements;
(iii) an institution substantially similar to any of the
foregoing entities described in clauses (i) or (ii) that satisfies the
Eligibility Requirements;
(iv) any entity Controlled by any of the entities described in
clauses (i) or (ii) above;
(v) a Qualified Trustee in connection with a securitization
of, the creation of collateralized debt obligations ("CDO") secured by
or financing through an "owner trust" of, Note B (collectively,
"Securitization Vehicles"), so long as the entire "controlling class"
of such Securitization Vehicle, other than with respect to a CDO
Securitization Vehicle, is held by one or more entities that are
otherwise Qualified Institutional Lenders under clauses (i), (ii),
(iii) or (iv) of this definition; provided that the operative documents
of the related Securitization Vehicle require that (1) in the case of a
CDO Securitization Vehicle, the "equity interest" in such
Securitization Vehicle is owned by one or more entities that are
Qualified Institutional Lenders under clauses (i), (ii), (iii) or (iv)
of this definition; or
(vi) an investment fund, limited liability company, limited
partnership or general partnership where a Permitted Fund Manager or an
entity that is otherwise a Qualified Institutional Lenders under
clauses (i), (ii), (iii) or (iv) of this definition acts as the general
partner, managing member or fund manager and at least 50% of the equity
interests in such investment vehicle are owned, directly or indirectly,
by one or more entities that are otherwise Qualified Institutional
Lenders under clauses (i), (ii), (iii) or (iv) of this definition.
"Qualified Trustee" means (i) a corporation, national bank,
national banking association or a trust company, organized and doing business
under the laws of any state or the United States of America, authorized under
such laws to exercise corporate trust powers and to accept the trust conferred,
having a combined capital and surplus of at least $100,000,000 and subject to
supervision or examination by federal or state authority, (ii) an institution
insured by the Federal Deposit Insurance Corporation or (iii) an institution
whose long-term senior unsecured debt is rated either of the then in effect top
two rating categories of each of the Rating Agencies.
M-1-8
"Rating Agencies" shall mean Standard & Poor's Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P"), and ▇▇▇▇▇'▇
Investors Service, Inc. ("Moody's") 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 Loan 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.
"Realized Losses" shall have the meaning assigned such term in
the Servicing Agreement.
"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 transfer of Loan A to the
Trustee, on behalf of certain certificateholders, in connection with the
inclusion of Loan 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.
"Securitization Servicing Agreement" shall mean a Pooling and
Servicing Agreement, to be entered into in connection with the Securitization,
by and among (a) such Person which serves as trustee from and after the
Securitization Date, (b) each such Person who serves as master servicer from and
after the Securitization Date, (c) each such Person which serves as special
servicer from and after the Securitization Date, and (d) the such Person which
serves as depositor from and after the Securitization Date, and any other
additional Persons that may be party to such Pooling and Servicing Agreement,
which is in a form consented to by the Initial Note A Holder. The Note B Holder
shall have no right to consent to the form of the Securitization Servicing
Agreement; provided, that such agreement shall not be modified in any manner
adverse to the Note B Holder without the prior consent of the Note B Holder.
Revisions to the Securitization Servicing Agreement shall be provided to counsel
of the Note B Holder.
"Securitization Trust" shall mean the trust formed pursuant to
a Securitization pursuant to which the Note A is held.
"Servicer" shall mean any of the Master Servicer and the
Special Servicer, as the context requires, with respect to the Mortgage Loans.
"Servicing Agreement" shall mean, with respect to the Mortgage
Loans, prior to the Securitization Date, the Interim Servicing Agreement, and,
from and after the Securitization Date, the Securitization Servicing Agreement.
"Servicing Fee Rate" shall have the meaning assigned such term
(or, alternatively, to the term "Master Servicing Fee Rate") in the Servicing
Agreement.
M-1-9
"Servicing Standard" shall have the meaning assigned such term
in the Securitization Servicing Agreement.
"Special Servicer" shall have the meaning assigned to such
term in the Servicing Agreement.
"Specially Service Mortgage Loan" has the meaning set forth in
the Securitization Servicing Agreement.
"Transfer" shall have the meaning assigned such term in
Section 19.
"Trustee" shall mean the bank or trust company as may be
selected by the Depositor and approved by the Rating Agencies to act as trustee
for the Securitization.
"Trustee Fee Rate" shall mean the Trustee Fee Rate, as defined
in the Securitization Servicing Agreement.
"Workout" shall mean any written modification, waiver,
amendment, restructuring or workout of the Mortgage Loans or the Mortgage Note
entered into with the Mortgage Borrower in accordance with the Servicing
Agreement.
2. Purchase of Note B. On the Closing Date, the Note B Holder
shall be deemed the owner of Note B. The Note B Holder acknowledges that the
Note A Holder intends to include Loan A in a Securitization.
3. 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, principal and other amounts 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, principal and other amounts with respect to
Note A. If no monetary Event of Default or any non-monetary Event of Default
such that it would cause the Mortgage Loans to be Specially Serviced Mortgage
Loans, exists and is continuing, all amounts tendered by the Mortgage Loan
Borrower or otherwise available for payment on or with respect to or in
connection with the Mortgage Loans (including amounts received by any Servicer
pursuant to the Servicing Agreement but excluding any amounts for required
reserves or escrows required by the Mortgage Loan Documents) whether received in
the form of monthly payments, the Balloon Payment, prepayments in whole or in
part, 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 (i) proceeds, awards or settlements to be
applied to the restoration or repair of the Mortgaged Property or released to
the Mortgage Loan Borrower in accordance with the Servicing Standard or the
terms of the Mortgage Loan Documents, and amounts collected on the Mortgage
Loans that are then due and payable to any Servicer or the Trustee, including
without limitation reimbursement of Advances and Advance Interest incurred in
connection with the Mortgage Loans) shall be applied in the following order of
priority (and payments shall be made at such times as are set forth in the
Servicing Agreement):
(a) first, to: the Note A Holder in an amount equal to any
Advance in connection with the Mortgage Loans, and accrued and unpaid interest
on any Advance or
M-1-10
indemnification or any other cost or expense related to the Note A, including
without limitation any Additional Trust Fund Expenses incurred pursuant to the
Servicing Agreement, exclusive of any portion thereof that had been covered by
an Advance that was previously reimbursed out of collections on or with respect
to the Mortgage Loans as contemplated herein;
(b) second, pro rata, to: (A) the Note A Holder in an amount
equal to the accrued and unpaid interest on the Note A Principal Balance at the
Note A Interest Rate, exclusive of any portion thereof that had been covered by
an Advance that was previously reimbursed out of collections on or with respect
to the Mortgage Loans as contemplated herein, and (B) the Note B Holder in an
amount equal to the accrued and unpaid interest on the Note B Principal Balance
at the Note B Interest Rate (and payable under the Applicable Servicing
Agreement) minus the applicable Servicing Fee Rate (the "Note B Net Interest
Rate"), exclusive of any portion thereof that had been covered by an Advance
that was previously reimbursed out of collections on or with respect to the
Mortgage Loans as contemplated herein;
(c) third: (A) to the Note A Holder, the scheduled principal
payments received, if any, with respect to Loan A, exclusive of any portion
thereof that had been covered by an Advance that was previously reimbursed out
of collections on or with respect to the Mortgage Loans as contemplated herein,
and (B) the Note B Holder, the scheduled principal payments received (and
payable under the Applicable Servicing Agreement), if any, with respect to Loan
B, exclusive of any portion thereof that had been covered by an Advance that was
previously reimbursed out of collections on or with respect to the Mortgage
Loans as contemplated herein;
(d) fourth, pro rata, to: (A) the Note A Holder in an amount
equal to the Note A Percentage Interest of any unscheduled principal payments,
and (B) the Note B Holder in an amount equal to the Note B Percentage Interest
of any unscheduled principal payments;
(e) fifth, pro rata, to: (A) the Note A Holder in an amount
equal to the Note A Percentage Interest of any Prepayment Premium, to the extent
actually paid by the Mortgage Loan Borrower, and (B) the Note B Holder in an
amount equal to the Note B Percentage Interest of any Prepayment Premium, to the
extent actually paid by the Mortgage Loan Borrower; and
(f) sixth, if any excess amount is paid by the Mortgage Loan
Borrower, and not otherwise applied in accordance with the foregoing clauses
(a)-(e), such amount shall be paid as follows: (A) first, to the Note A Holder
up to the amount of any unreimbursed costs and expenses paid by such holder with
respect to the Mortgage Loans pursuant to this Agreement or the Servicing
Agreement, (B) second, to the Note B Holder up to the amount of any unreimbursed
costs and expenses paid by such holder with respect to the Mortgage Loans
pursuant to this Agreement or the Servicing Agreement, and (C) finally, any
remaining amounts to the Note A Holder and Note B Holder in accordance with
their respective initial Percentage Interests.
4. Payments Following an Event of Default. Payments of
interest and principal shall be made in accordance with Section 3 hereof and the
terms of the Servicing Agreement; provided that, if a monetary Event of Default
or any non-monetary Event of Default such that it would cause the Mortgage Loans
to be Specially Serviced Mortgage Loans, exists and is
M-1-11
continuing, all amounts tendered by the Mortgage Loan Borrower or otherwise
available for payment on or with respect to or in connection with the Mortgage
Loans or the related Mortgaged Property or amounts realized as proceeds thereof
(including amounts received by any Servicer pursuant to the Servicing Agreement
but excluding any amounts for required reserves or escrows required by the
Mortgage Loan Documents), whether received in the form of monthly payments, the
Balloon Payment, prepayments in whole or in part, proceeds under title, hazard
or other insurance policies or awards or settlements in respect of condemnation
proceedings or similar domain (other than (i) proceeds, awards or settlements to
be applied to the restoration or repair of the Mortgaged Property or released to
the Mortgage Loan Borrower in accordance with the Servicing Standard or the
terms of the Mortgage Loan Documents, and (ii) amounts collected on the Mortgage
Loans that are then due and payable to any Servicer or the Trustee, including
without limitation reimbursement of Advances and Advance Interest incurred in
connection with the Mortgage Loans) shall be applied in the following order of
priority (and payments shall be made at such times as are set forth in the
Servicing Agreement):
(a) first, to the Note A Holder in an amount equal to any
Advance in connection with the Mortgage Loans, and accrued and unpaid interest
on any Advance or indemnification or any other cost or expense related to the
Note A, including without limitation any Additional Trust Fund Expenses, made
pursuant to the Servicing Agreement, exclusive of any portion thereof that had
been covered by an Advance that was previously reimbursed out of collections on
or with respect to the Mortgage Loans as contemplated herein;
(b) second, to the Note A Holder in an amount equal to the
accrued and unpaid interest on the Note A Principal Balance at the Note A
Interest Rate, exclusive of any portion thereof that had been covered by an
Advance that was previously reimbursed out of collections on or with respect to
the Mortgage Loans as contemplated herein;
(c) third, to the Note A Holder in an amount equal to the Note
A Principal Balance, until such amount has been paid in full;
(d) fourth, to the Note B Holder in an amount equal to the
accrued and unpaid interest on the Note B Principal Balance at the Note B Net
Interest Rate, exclusive of any portion thereof that had been covered by an
Advance that was previously reimbursed out of collections on or with respect to
the Mortgage Loans as contemplated herein;
(e) fifth, to the Note B Holder in an amount equal to the Note
B Principal Balance, until such amount has been paid in full;
(f) sixth, any default interest at the default interest rate
in excess of the interest paid in accordance with clauses (b) and (d) above on
(i) first, Note A, in an amount equal to that portion of any such default
interest actually paid by the Mortgage Loan Borrower that accrued with respect
to Loan A and (ii) then Note B, in an amount equal to that portion of any such
default interest actually paid by the Mortgage Loan Borrower that accrued with
respect to Loan B;
M-1-12
(g) seventh, to the Note A Holder in an amount equal to the
Note A Percentage Interest of any Prepayment Premium, to the extent actually
paid by the Mortgage Loan Borrower;
(h) eighth, to the Note B Holder in an amount equal to the
Note B Percentage Interest of any Prepayment Premium, to the extent actually
paid by the Mortgage Loan Borrower;
(i) ninth, if any excess amount is paid by the Mortgage Loan
Borrower, and not otherwise applied in accordance with the foregoing clauses
(a)-(h), such amount shall be paid as follows: (A) first, to the Note A Holder
up to the amount of any unreimbursed costs and expenses paid by such holder with
respect to the Mortgage Loans pursuant to this Agreement or the Servicing
Agreement, (B) second, to the Note B Holder up to the amount of any unreimbursed
costs and expenses paid by such holder with respect to the Mortgage Loans
pursuant to this Agreement or the Servicing Agreement, and (C) finally, any
remaining amounts to the Note A Holder and Note B Holder in accordance with
their respective initial Percentage Interests.
5. Administration of the Loan.
(a) From and after the date hereof, administration of the
Mortgage Loan shall be governed by this Agreement and (x) prior to a
Securitization, the Interim Servicing Agreement and (y) after a Securitization,
the Securitization Servicing Agreement, in each case the terms of which are
hereby incorporated by reference into this Agreement in their entirety to the
same extent and with the same force as if fully set forth herein, and each party
hereby agrees to be bound thereby. The Note A Holder shall have the right to
appoint any sub-servicer with respect to the Mortgage Loans in accordance with
the terms of, and subject to the limitations set forth in, any Securitization
Servicing Agreement. Notwithstanding anything to the contrary contained herein
(including all of this Section 5 and Section 17(a)), until a Securitization of
Note A and the execution and delivery of a Securitization Servicing Agreement in
connection therewith, or if Note A ceases to be an asset of the trust fund
created pursuant to the Securitization Servicing Agreement, the administration
and servicing of the Mortgage Loans shall be performed in accordance with the
provisions of the Interim Servicing Agreement and this Agreement, and the Note A
Holder and the Note B Holder each hereby agree to be bound by the terms of the
Interim Servicing Agreement, as modified hereby. At any time that the Mortgage
Loans are no longer subject to the Interim Servicing Agreement, unless a
Securitization Servicing Agreement is in place and Note A is an asset of the
trust fund created thereunder, the Note A Holder shall cause the Mortgage Loans
to be serviced pursuant to a servicing agreement that is identical to the
Interim Servicing Agreement with Prudential Assets Resources, Inc., as the
Servicer (other than as necessary to reflect changes as are not materially
adverse to the Note B Holder), as modified hereby, and all references herein to
the "Interim Servicing Agreement" shall mean such subsequent servicing
agreement; provided, however, that until a replacement servicing agreement has
been entered into, (i) the Note A Holder shall cause the Mortgage Loans to be
serviced pursuant to the terms of the Interim Servicing Agreement as if such
agreement were still in full force and effect with respect to the Mortgage Loans
and (ii) the actual servicing of the Mortgage Loans may be performed by any
entity appointed by the Note A Holder and does not have to be performed by the
service providers set forth in the Interim
M-1-13
Servicing Agreement. Any such entity servicing the Mortgage Loans pursuant to
the preceding clause (ii) must perform such servicing in accordance with the
Servicing Standard and the provisions of the Interim Servicing Agreement and
this Agreement. Notwithstanding anything to the contrary contained herein
(including all of this Section 5 and Section 17(a)), in accordance with the
applicable Servicing Agreement, the Note A Holder shall cause the Servicers to
service and administer the Mortgage Loans in accordance with Servicing Standard
as set forth in such Servicing Agreement, taking into account the interests of
the Note A Holder and the Note B Holder (so long as such Note B Holder is not an
Affiliate of the Mortgage Loan Borrower), with a view to maximizing the
realization for both such Holders as a collective whole (it being understood
that the interest of the Note B Holder is a junior interest, subject to the
terms and conditions of this Agreement), and any Note A Holder and Note B Holder
who is not an Affiliate of the Mortgage Loan Borrower shall be deemed a third
party beneficiary of such provisions of the Interim Servicing Agreement.
(b) Notwithstanding anything to the contrary contained herein,
but subject to the terms and conditions of Sections 5(a) and 18 of this
Agreement and the terms and conditions of the Servicing Agreement, if the Note A
Holder in connection with a Workout or proposed Workout of the Mortgage Loans,
modifies the terms thereof such that (i) the Mortgage Loan Balance is decreased,
(ii) the 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
terms of the Mortgage Loans, 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 the Note A remaining the same as they are on
the date hereof, and the Note B Holder shall bear the full economic effect of
all waivers, reductions or deferrals of amounts due on the Mortgage Loans and
Note A and Note B attributable to such Workout (up to the amount otherwise due
on the Note B). As set forth in this Section 5(b), the Note A Holder may make
any amendments to Sections 3 and 4 hereof in order to reflect the effect of such
changes in the Mortgage Loans. Subject to the Servicing Agreement, in the case
of any modification or amendment described above, the Note A Holder will have
the sole authority and ability to revise the payment provisions set forth in
Section 3 and Section 4 above in a manner that reflects the Note B's
subordination to the Note A with respect to the loss that is the result of such
amendment or modification, including: (i) the ability to increase the Note A
Percentage Interest and to reduce the Note B Percentage Interest in a manner
that reflects a loss in principal as a result of such amendment or modification
and (ii) the ability to change the Note A Interest Rate and the Note B Interest
Rate in order to reflect a reduction in the Interest Rate of the Mortgage Loans.
(c) All rights and obligations of the Note A Holder described
hereunder may be exercised by the Master Servicer, the Special Servicer or the
Trustee on behalf of the Note A Holder.
(d) Pursuant to the Servicing Agreement, the Master Servicer
(whose identity may change from time to time as provided in the Servicing
Agreement) will be appointed as the servicer of the Mortgage Loans and the
Special Servicer (whose identity may change from time to time as provided in the
Servicing Agreement) will be appointed as the special servicer of the Mortgage
Loans, and the parties agree that the Master Servicer and Special Servicer will
service the Mortgage Loans on behalf of the Note A Holder and the Note B Holder.
M-1-14
6. Payment Procedure. The Note A Holder and Note B Holder each
hereby directs the Servicer, in accordance with the priorities set forth in
Section 3 or 4, as applicable, and subject to the terms of the Servicing
Agreement, to deposit to the appropriate Collection Account (a) all payments
received with respect to and allocable to Note A and (b) all payments received
with respect to and allocable to Note B. The Servicer shall deposit such amounts
in the Collection Account and credit such amounts to the Note A Ledger or the
Note B Ledger, as applicable, on the Business Day following the date such
payment was received by the Servicer from the Mortgage Loan Borrower. If any
Servicer holding or having distributed any amount received or collected in
respect of Note A or Note B determines, or 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, 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, Servicer, Special Servicer or such other
person or entity with respect thereto. 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 Loans in excess of its distributable share
thereof, it will promptly remit such excess to the Servicer. The 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 Loans against any future payments due
to the Note A Holder or the Note B Holder, as applicable, under the Mortgage
Loans, 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.
7. Limitation on Liability. Subject to Section 18(c), 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 A Holder shall have no fiduciary responsibilities to the Note B Holder.
Subject to Section 18(c), 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. The Note B Holder shall have no fiduciary
responsibilities to the Note A Holder.
8. Purchase of Note A By Note B Holder. In the event that (a)
while Loan A is in a Securitization Trust, at any time prior to the maturity
date, Loan A at any time becomes 90 days delinquent with respect to any Monthly
Payment due thereunder; or (b) (i) at any time that Loan A is not in a
Securitization Trust or (ii) if Loan A is in a Securitization Trust, from and
after the maturity date, (1) an Event of Default has occurred and is continuing
under the Mortgage Loans, and (2) the Mortgage Loans become Specially Serviced
Mortgage Loans but
M-1-15
prior to foreclosure of the Mortgage Loans, or (c) upon a termination of the
Securitization Trust, then upon notice from the Note A Holder (a "Repurchase
Option Notice") of such occurrence (which notice the Note A Holder shall direct
the Servicer to give to the Note B Holder promptly following the Servicer's
gaining actual knowledge of the occurrence of such event), for as long as the
Note A Holder has not committed itself to a sale of Note A (or the related
Mortgaged Property), the Note B Holder shall have the right, by written notice
to the Note A Holder (a "Note B Holder Repurchase Notice"), given within 18
months from receipt by the Note B Holder of the Repurchase Option Notice,
provided in the case of clauses (a) and (b) above that an Event of Default has
continued in respect of Loan A, 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, at the Defaulted Mortgage Loan Purchase Price, on a date (the
"Repurchase Date") not less than five (5) Business Days nor more than thirty
(30) Business Days after the date of the Note B Holder Repurchase Notice, as
shall be established by the Note A Holder, unless the Note A Holder and the Note
B Holder otherwise agree to extend such time frame. The Note B Holder Repurchase
Option Notice shall include an initial calculation of the Defaulted Mortgage
Loan Purchase Price (the "Initial Calculation"), based upon an acquisition by
the Note B Holder to be completed within 10 days after such Note B Holder
Repurchase Option Notice being sent. The Initial Calculation is not binding upon
the Note A Holder or the Note B Holder and shall be subject to the final
calculation of the Defaulted Mortgage Loan Purchase Price. The Defaulted
Mortgage Loan Purchase Price shall be calculated by the 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,
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 (including commencement and prosecution of any
foreclosure proceedings), if appropriate, in accordance with the Servicing
Standard and the terms of the Servicing Agreement.
9. Additional Understanding. For as long as the Mortgage Loans
remain outstanding:
(a) Books and Records. Upon any inspection of the Mortgaged
Property or books or records of the Mortgage Loan Borrower by the Note A Holder
(or any Servicer acting on its behalf) pursuant to the terms of the Mortgage
Loan Documents, the Note A Holder (or any Servicer acting on its behalf) shall,
upon written request of the Note Holder, encourage the Mortgage Loan Borrower to
reasonably cooperate to provide the Note B Holder access for its own inspection
of such Mortgaged Property or such books or records, and the Note A Holder (or
any Servicer acting on its behalf) shall, subject to the terms of the Mortgage
Loan Documents, at the request of Note B Holder, discuss the business, financial
and other condition of the Mortgage Loan Borrower with officers of the Mortgage
Loan Borrower and the accountants and other representatives of the Mortgage Loan
Borrower (to the extent such Persons are willing to so discuss), all costs
incurred by the Note A Holder (or any Servicer acting on its behalf) to be paid
for by the Note B Holder. In no event shall the Note A Holder (or any Servicer
acting on its behalf) be obligated to provide to the Note B Holder any
information that the Note A Holder (or any Servicer acting on its behalf)
concludes in its sole but good faith determination is
M-1-16
confidential or which the Note A Holder (or any Servicer acting on its behalf)
believes to be of a proprietary or sensitive nature.
(b) Financial Statements Etc. Upon written request of the Note
B Holder to the Note A Holder (or any Servicer acting on its behalf), the Note A
Holder (or any Servicer acting on its behalf) shall, at the sole cost of the
Note Holder, provide the Note B Holder with copies of each financial statement
delivered to the Note A Holder (or any Servicer acting on its behalf) pursuant
to the terms of the Mortgage Loan Documents. Subject to the terms of the
Mortgage Loan Documents, upon the reasonable request of Note B Holder, the Note
A Holder (or any Servicer acting on its behalf) shall also deliver to the Note B
Holder copies of any other documents relating to the Mortgage Loan, including,
without limitation, property inspection reports and loan servicing statements,
all at the sole cost of the Note B Holder. In no event shall the Note A Holder
(or any Servicer acting on its behalf) be obligated to provide to the Note B
Holder any information that the Note A Holder (or any Servicer acting on its
behalf) concludes in its sole but good faith determination is confidential or
which the Note A Holder (or any Servicer acting on its behalf) believes to be of
a proprietary or sensitive nature.
(c) Copies. Any copies to be furnished by a Servicer under
this Agreement may be furnished by hard copy or electronic means.
10. Representations of the Note B Holder. The Note B Holder
represents and warrants, and it is specifically understood and agreed, that:
(a) subject to Section 18(c), Note A Holder shall have no
liability or responsibility to the Note B Holder except as expressly provided
herein or for actions that are taken or omitted to be taken by the Note A Holder
that constitute gross negligence or willful misconduct or that constitute a
breach of this Agreement;
(b) the execution, delivery and performance of this Agreement
is within the Note B Holder's 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;
(c) it is duly organized, validly existing, in good standing
and possesses of all licenses and authorizations necessary to carry on its
business;
(d) this Agreement has been duly executed and delivered by the
Note B Holder;
(e) all consents, approvals, authorizations, orders or filings
of or with any court or governmental agency or body, if any, required for the
execution, delivery and performance of this Agreement by the Note B Holder have
been obtained or made; and
(f) there is no pending action, suit, proceeding, arbitration
or governmental investigation against the Note B Holder, an adverse outcome of
which materially affects its performance under this Agreement.
M-1-17
The Note B Holder expressly and irrevocably waives for itself
and any Person claiming through or under the Note B Holder any and all rights
that it may have under Section 1315 of the New York Real Property Actions and
Proceedings Law or the provisions of any similar law which purports to give a
junior loan interest or participant the right to initiate any loan enforcement
or foreclosure proceedings.
11. Representations of the Note A Holder. The Note A Holder
repre-sents and warrants, and it is specifically understood and agreed, that:
(a) subject to Section 18(c), Note B Holder shall have no
liability or responsibility to the Note A Holder except as expressly provided
herein or for actions that are taken or omitted to be taken by the Note B Holder
that constitute gross negligence or willful misconduct or that constitute a
breach of this Agreement;
(b) the execution, delivery and performance of this Agree-ment
is within Note A Holder's 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 binding obligation of the Note A Holder
enforceable against the Note A Holder in accordance with its terms;
(c) it is duly organized, validly existing, in good standing
and possession of all licenses and authorizations necessary to carry on its
business;
(d) this Agreement has been duly executed and delivered by the
Note A Holder;
(e) all consents, approvals, authorizations, orders or filings
of or with any court or governmental agency or body, if any, required for the
execution, delivery and performance of this Agreement by the Note A Holder has
been obtained or made;
(f) there is no pending action, suit, proceeding, arbitration
or governmental investigation against the Note A Holder, an adverse outcome of
which materially affects performance under this Agreement.
12. Independent Analysis of the Note B Holder. The Note B
Holder by its acquisition of Note B shall be deemed to (a) represent that it
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 and (b)
acknowledge that the Note A Holder has made no representations or warranties
with respect to the Mortgage Loans, and that the Note A Holder shall have no
responsibility for (i) the collectability of the Mortgage Loans, (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 Initial Note A Holder in connection with the origination of the
Mortgage Loans, (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 from the failure or refusal of the Mortgage Loan
Borrower to pay interest, principal or other amounts due under the Mortgage
Loans, defaults by the Mortgage Loan Borrower under the
M-1-18
Mortgage Loan Documents or the unenforceability of any of the Mortgage Loan
Documents for reasons other than gross negligence, willful misconduct or breach
of this Agreement by the Note A Holder or negligence, willful misconduct or bad
faith by any Servicer.
13. 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 relationship created hereby between the Note A
Holder and the Note B Holder as 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 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.
14. Not a Security. Neither Note A nor Note B shall be deemed
to be securities within the meaning of the Securities Act of 1933 or the
Securities Exchange Act of 1934.
15. Exercise of Remedies by the Note A Holder. Notwithstanding
anything to the contrary contained herein (including the provisions of Section
5), the Servicing Agreement shall provide that the Servicer shall service and
administer the Mortgage Loans on behalf of the Note A Holder and the Note B
Holder in accordance with the Servicing Standard and any Note B Holder who is
not the Mortgage Loan Borrower or an Affiliate thereof shall be deemed a third
party beneficiary of such provisions of the Servicing Agreement.
16. Other Business Activities of Note A Holder. The Note B
Holder acknowledges that the Note A Holder and its Affiliates 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 Note A Holder shall
not assign Note A to the Mortgage Loan Borrower or any Mortgage Loan Borrower
Related Parties.
17. Exercise of Remedies by the Servicer.
(a) Subject to Section 18 of this Agreement, and except as
otherwise provided in this Agreement or the applicable Servicing Agreement, the
Servicer, on behalf of the Note A Holder and the Note B Holder (as a collective
whole), shall have the sole and exclusive authority with respect to the
administration of, and exercise of rights and remedies with respect to, the
Mortgage Loans, including, without limitation, the sole and exclusive authority
to (i) modify or waive any of the terms of the Mortgage Loan Documents, (ii)
consent to any action or failure to act by the Mortgage Loan Borrower or any
party to the Mortgage Loan Documents, (iii) vote all claims with respect to the
Mortgage Loan in any bankruptcy, insolvency or other similar proceedings and
(iv) to take legal action to enforce or protect the Holders' interests with
respect
M-1-19
to the Mortgage Loans or to refrain from exercising any powers or rights under
the Mortgage Loan Documents, including the right at any time to call or waive
any Events of Default, or accelerate or refrain from accelerating the Mortgage
Loans or institute any foreclosure action, and the Note B Holder shall have no
voting, consent or other rights whatsoever with respect to the Servicer's
administration of, or exercise of its rights and remedies with respect to, the
Mortgage Loans on behalf of the Note A Holder; provided, however, that any such
action taken by the Servicer on behalf of the Note A Holder and the Note B
Holder (as a collective whole) pursuant to this Section 17 shall be consistent
with the terms of the applicable Servicing Agreement. Subject to the terms and
conditions of the applicable Servicing Agreement and subject to Section 18 of
this Agreement, so long as Note A is an asset of a Securitization, the Servicer
on behalf of the Note A Holder and the Note B Holder (as a collective whole)
shall have the sole and exclusive authority to make servicing advances with
respect to the Mortgage Loan. Except as otherwise provided in this Agreement
(including without limitation the provisions of Section 18), the Note B Holder
agrees that it shall have no right to, and hereby presently and irrevocably
assigns and conveys to the Servicer on behalf of Note A Holder, the rights, if
any, that the Note B Holder has to, (i) call or cause the Note A Holder or such
Servicer to call an Event of Default under the Mortgage Loans, (ii) exercise any
remedies with respect to the Mortgage Loans or the Mortgage Loan Borrower,
including, without limitation, filing or causing the Note A Holder or such
Servicer to file any bankruptcy petition against the Mortgage Loan Borrower,
(iii) vote any claims with respect to the Mortgage Loan in any bankruptcy,
insolvency or similar type of proceeding of the Mortgage Loan Borrower or (iv)
so long as Note A is an asset of a Securitization, make servicing advances with
respect to the Mortgage Loans. The Note B Holder shall, from time to time,
execute such documents as the Note A Holder or any Servicer shall reasonably
require to evidence such assignment with respect to the rights described in
clause (iii) of the preceding sentence. Subject to Section 18 of this Agreement,
the Note B Holder acknowledges that the Servicer on behalf of the Note A Holder
and the Note B Holder (as a collective whole) may in its sole discretion
exercise, or omit to exercise, any rights that the Servicer on behalf of the
Note A Holder may have under this Agreement or the applicable Servicing
Agreement in a manner that may be adverse to the interests of the Note B Holder
and that the Servicer on behalf of Note A Holder shall have no liability
whatsoever to the Note B Holder in connection with the exercise of rights by the
Note A Holder or any omission by the Note A Holder to exercise such rights.
Subject to the terms of this Agreement, the Servicer on behalf of Note A Holder
shall not have any fiduciary duty to the Note B Holder in connection with the
administration of the Mortgage Loans. The Note B Holder expressly and
irrevocably waives for itself and any Person claiming through or under the Note
B Holder any and all rights that it may have under Section 1315 of the New York
Real Property Actions and Proceedings Law or the provisions of any similar law
which purports to give a junior loan participant the right to initiate any loan
enforcement or foreclosure proceedings. The foregoing provisions of this Section
17(a) shall not limit the right of the Note B Holder or an Affiliate thereof to
be a Servicer or to exercise its rights as Controlling Holder under this
Agreement or Controlling Class Representative under any applicable Servicing
Agreement.
(b) Notwithstanding anything to the contrary contained herein,
the exercise by the Servicer on behalf of Note A Holder of its rights under this
Section 17 shall be subject in all respects to any section of any Securitization
Servicing Agreement governing REMIC administration, and in no event shall the
Servicer on behalf of Note A Holder be permitted to take any action or refrain
from taking any action which would violate the laws of any applicable
M-1-20
jurisdiction, breach the Mortgage Loan Documents, be inconsistent with the
Servicing Standard or violate any other provisions of the applicable Servicing
Agreement, not be in the best economic interest of the Note A Holder and the
Note B Holder (as a collective whole, i.e., as if a single Person held both
Mortgage Loans), expand the scope of the Servicer's responsibilities under the
Servicing Agreement, cause adverse tax consequences for the Note A Holder, or
cause the arrangement evidenced hereby not to be treated as a "grantor trust"
for Federal income tax purposes. The Servicer on behalf of the Note A Holder and
the Note B Holder (as a collective whole) shall exercise such rights and powers
described in this Section 17 on the understanding that the Servicer on behalf of
the Note A Holder and the Note B Holder (as a collective whole) shall administer
the Mortgage Loans as is consistent with the applicable Servicing Agreement and
this Agreement, provided that the Note A Holder and any Servicer acting on its
behalf shall not be liable to the Note B Holder with respect to anything the
Note A Holder or such Servicer may do or omit to do in relation to the Mortgage
Loans, other than as set forth in Section 7 hereof, provided that such action or
failure to act is consistent with the applicable Servicing Agreement and this
Agreement. Without limiting the generality of the foregoing, the Note A Holder
and any Servicer acting on its behalf may rely on the advice of legal counsel,
accountants and other experts (including those retained by the Mortgage Loan
Borrower) and upon any written communication or telephone conversation which the
Note A Holder or such Servicer believes to be genuine and correct or to have
been signed, sent or made by the proper person or entity.
18. Certain Powers of the Controlling Holder.
(a) Subject to Section 4 and Section 18(c) of this Agreement,
the Controlling Holder (as defined herein) or a representative appointed by the
Controlling Holder pursuant to Section 18(d) will be entitled to advise the Note
A Holder or the Servicer, as applicable, with respect to the following actions;
and further, subject to Section 4 and Section 18(c), neither the Note A Holder
nor the Servicer will be permitted to take any of the following actions unless
and until it has notified the Controlling Holder in writing by a notice in
capitalized, bold faced 14 point type containing the following statement at the
top of the first page: "THIS IS A REQUEST FOR SECTION 18 ACTION APPROVAL. IF THE
CONTROLLING HOLDER FAILS TO APPROVE OR DISAPPROVE THE ENCLOSED SECTION 18 ACTION
WITHIN FIVE (5) BUSINESS DAYS, THE NOTE A HOLDER OR THE SPECIAL SERVICER, AS THE
CASE MAY BE, MAY DELIVER A DEEMED APPROVAL NOTICE", and (b) if the Controlling
Holder fails to either approve or reject said Section 18 Action within such five
(5) business day period after receipt of the first notice, and having been
provided with all reasonably requested information with respect thereto, and the
Note A Holder or the Special Servicer, as the case may be, delivers the Section
18 Action request to the Controlling Holder accompanied by a notice in
capitalized, bold faced 14 point type containing the following statement at the
top of the first page: "THIS IS A SECOND REQUEST FOR SECTION 18 ACTION APPROVAL.
IF THE CONTROLLING HOLDER FAILS TO APPROVE OR DISAPPROVE THE ENCLOSED SECTION 18
ACTION WITHIN FIVE (5) BUSINESS DAYS, SUCH SECTION 18 ACTION WILL BE DEEMED
APPROVED BY THE CONTROLLING HOLDER", then, if the Controlling Holder fails to
approve or reject the Section 18 Action within such five (5) business day period
(approval or rejection by notice by facsimile on the same day being acceptable),
then the Controlling Holder's approval will be deemed to have been given to:
M-1-21
(i) any proposed foreclosure upon or comparable conversion
(which may include acquisition as an REO Property) of the ownership of
the Mortgaged Property and the other collateral securing the Mortgage
Loans if they come into and continue in default or other enforcement
action under the Mortgage Loan Documents;
(ii) any proposed modification, amendment or waiver of a
monetary term (including, without limitation, the timing of payments or
forgiveness of interest or principal, but excluding any term relating
to late charges) or any material non-monetary term of the Mortgage
Loans;
(iii) any proposed successor property manager with respect to,
or any material alteration of, the Mortgaged Property;
(iv) any waiver of the requirements under the Mortgage Loans
with respect to property insurers or the manner in which payments or
other collections on the Mortgage Loans are held and/or invested;
(v) any proposed sale of the Mortgaged Property or transfer of
an interest in the Mortgage Loan Borrower or the related Mortgaged
Property;
(vi) any acceptance of a discounted payoff of the Mortgage
Loans;
(vii) any determination to bring the Mortgaged Property into
compliance with applicable environmental laws or to otherwise address
hazardous materials located at the Mortgaged Property;
(viii) any material release of collateral for the Mortgage
Loans (other than in accordance with the terms of, or upon satisfaction
of, the Mortgage Loans) or any release of the Mortgage Loan Borrower or
any guarantor;
(ix) any acceptance of substitute or additional collateral for
the Mortgage Loans (other than in accordance with the terms of the
Mortgage Loans);
(x) any waiver of a "due-on-sale" or "due-on-encumbrance"
clause;
(xi) any acceptance of an assumption agreement releasing the
Mortgage Loan Borrower from liability under the Mortgage Loans; and
(xii) the approval of any replacement Special Servicer or
sub-servicer for the Mortgage Loans (other than in connection with the
Trustee becoming the successor thereto pursuant to the terms of the
Securitization Servicing Agreement);
provided that, in the event that the Note A Holder or the Special Servicer
determines in accordance with the Servicing Standard that immediate action is
necessary to protect the interests of the Note A Holder and the Note B Holder
(as a collective whole), the Note A Holder or Special Servicer may take any such
action without waiting for the Controlling Holder's response; and provided,
further, that, upon the request of the Non-Controlling Holder during the
10-business day period referred to above, as each such Holder is identified to
the Note A Holder and
M-1-22
the Servicers, each of the Controlling Holder, the Note A Holder and the
Servicers shall consult with the Non-Controlling Holder regarding its views as
to the proposed action (but may, in their sole discretion, reject any advice or
direction from the Non-Controlling Holder).
Upon reasonable request, the Note A Holder shall provide, or
cause the Special Servicer to provide, the Controlling Holder with any
information in the possession of the Note A Holder or the Special Servicer with
respect to such matters, including, without limitation, its reasons for
determining to take a proposed action.
The Note A Holder or the applicable Servicer shall notify the
Holders of any release or substitution of collateral for the Mortgage Loans even
if such release or substitution is in accordance with the Mortgage Loans.
Appraisal Reduction Amounts shall be allocated to reduce the
Note B Principal Balance and the Note A Principal Balance, in that order, up to
the outstanding amount thereof, for purposes of determining the identity of the
Controlling Holder. The Special Servicer shall give written notice to the
Controlling Holder of any Appraisal Reduction Amount calculated with respect to
the Mortgage Loans and any allocation thereof to reduce the Principal Balance of
such Holder.
The term "Controlling Holder" shall mean as of any date of
determination, (i) the Note B Holder, unless a Control Appraisal Event has
occurred and is continuing or the Note B Holder is the Mortgage Loan Borrower or
a Mortgage Loan Borrower Related Party, or (ii) if a Control Appraisal Event has
occurred and is continuing or the Note B Holder is the Mortgage Loan Borrower or
a Mortgage Loan Borrower Related Party, the Note A Holder. As of the Closing
Date, the Controlling Holder will be the Note B Holder; provided, that if a
Control Appraisal Event occurs, and Loan A subsequently ceases to be specially
serviced (or, if Loan A is part of a Securitization Trust and subsequently
ceases to be a "Required Appraisal Loan" within the meaning of the
Securitization Servicing Agreement), then the outstanding Note B Principal
Balance shall be restored to the extent of reductions in Appraisal Reduction
Amounts indicated by a subsequent Appraisal. The term "Non-Controlling Holder"
shall mean each Holder other than the Controlling Holder. The Controlling Holder
shall have the right at any time within six months of the date of the receipt of
any Appraisal to require that the Special Servicer obtain a new Appraisal of the
Mortgaged Property in accordance with MAI standards, at the expense of the
Controlling Holder. Upon receipt of such Appraisal the Special Servicer shall
deliver a copy thereof to the Controlling Holder and such other parties as are
specified in the Servicing Agreement. Promptly following the receipt of, and
based upon, such Appraisal, the Special Servicer shall redetermine and report to
the Controlling Holder and such other parties as are specified in the Servicing
Agreement the then applicable Appraisal Reduction Amount, if any, with respect
to the Mortgage Loans (calculated as if it was a single Mortgage Loan).
(b) Notwithstanding anything herein to the contrary, no
advice, direction or objection from or by the Controlling Holder, as
contemplated by Section 18(a), may (and the Note A Holder and the Special
Servicer shall ignore and act without regard to any such advice, direction or
objection that the Note A Holder or the Special Servicer has determined, in its
reasonable, good faith judgment, will) require or cause the Note A Holder or the
Special Servicer to violate any provision of this Agreement, or the applicable
Servicing Agreement, including the
M-1-23
Special Servicer's obligation to act in accordance with the Servicing Standard,
act in a manner that is not in the best economic interests of the Note A Holder
and the Note B Holder (as a collective whole, i.e., as if a single Person held
both Mortgage Loans), violate any other provisions of the applicable Servicing
Agreement, expand the scope of the Servicer's responsibilities under the
Servicing Agreement, cause adverse tax consequences for the Note A Holder, or
cause the arrangement evidenced hereby not to be treated as a "grantor trust"
for Federal income tax purposes.
(c) The Controlling Holder will have no liability to the other
party for any action taken, or for refraining from the taking of any action, in
good faith pursuant to this Agreement, or for errors in judgment, even if same
is adverse to the interest of the other party; provided, however, that the
Controlling Holder will not be protected against any liability which would
otherwise be imposed for losses actually suffered due to the gross negligence,
willful misconduct or breach of this Agreement on the part of the Controlling
Holder in the performance of duties or by reason of grossly negligent disregard
of obligations or duties.
(d) Subject to the terms of the applicable Servicing
Agreement, the Controlling Holder may designate, in writing, a Controlling Class
Representative or other representative to exercise its rights and powers under
this Section 18 or otherwise under this Agreement (copies of such writing to be
delivered to each of the other parties hereto). Such designation shall remain in
effect until it is revoked by the Controlling Holder by a writing delivered to
each of the other parties hereto.
(e) Subject to the terms of the applicable Servicing
Agreement, the Non-Controlling Holders shall be entitled to receive, upon
request made to any party hereto, a copy of any notice or report required to be
delivered (upon request or otherwise) by such party to the Controlling Holder.
Any such party shall be permitted to require payment of a sum sufficient to
cover the reasonable costs and expenses of providing such copies.
(f) Subject to the terms of the applicable Servicing
Agreement, if the Mortgage Loan Borrower shall default with respect to any of
its obligations under the Mortgage Loan Documents, the Controlling Holder shall
have the right to cure such default, within a period of time which is 5 days
more than the applicable cure period given to the Mortgage Loan Borrower under
the Mortgage Loan Documents, at its own expense and any amounts advanced on
behalf of the Mortgage Loan Borrower in connection with the exercise of such
cure rights shall be reimbursable pursuant to Section 4. The Controlling Holder
shall no longer have this right to cure such default after the Mortgage Loan
Borrower shall have three (3) monetary defaults in succession or ten (10)
monetary defaults during the term of the Mortgage Loans.
(g) If Note A is not an asset of the trust fund created
pursuant to the Securitization Servicing Agreement, the Controlling Holder may
at any time and from time to time replace any existing Special Servicer with
respect to the Mortgage Loan with any other person that constitutes a qualified
servicing institution capable of making representations, warranties, and
covenants set forth in such Servicing Agreement. The Controlling Holder shall so
designate a person to serve as replacement Special Servicer by delivering to the
other Holders, the Master Servicer and the existing Special Servicer a written
notice stating such designation and by satisfying the other conditions required
under the Servicing Agreement; provided, that the
M-1-24
Note A Holder (if it is not the Controlling Holder) shall have the right to
approve such replacement Special Servicer if such replacement Special Servicer
is not on S&P's list of approved Special Servicers. The Controlling Holder shall
promptly pay any expenses incurred by the Note A Holder in connection with such
replacement. The Controlling Holder shall notify the other parties hereto of any
termination of the Special Servicer and appointment of a new Special Servicer in
accordance with this Section 18. If the Controlling Holder has not appointed a
Special Servicer with respect to the Mortgage Loans, then the Special Servicer
designated in the Servicing Agreement shall be the Special Servicer.
(h) Upon determining that a Servicing Transfer Event has
occurred with respect to the Mortgage Loans, the Servicer shall promptly notify
each Holder of the Mortgage Loans (and the Note A Holder shall direct the
Servicer in the Servicing Agreement to deliver such notice).
19. Sale of the Note B. The initial Note B Holder (and any
subsequent Note B Holder) agrees that it will not sell, assign, transfer,
pledge, syndicate, sell, hypothecate, contribute, encumber or otherwise dispose
of all or any portion of the Note B (a "Transfer") without the Note A Holder's
prior written consent, which consent shall not be unreason-ably withheld,
conditioned or delayed, provided that, (a) the Note B Holder shall have the
right to Transfer the Note B, or any portion thereof, to a Qualified
Institutional Lender, without obtaining the Note A Holder's prior written
consent, provided, that prior to the transfer the Note A Holder is provided with
(i) a representation from the transferee in the Assignment and Assumption
Agreement certifying that such transferee is a Qualified Institutional Lender
and (ii) a copy of the Assignment and Assumption Agreement referred to in the
next sentence below and (b) if the Note B Holder wants to Transfer the Note B,
or any portion thereof, to an entity that is not a Qualified Institutional
Lender, it must first obtain consent of the Note A Holder, which, for as long as
the Note A is held in a Securitization Trust, will be conditioned upon receipt
by the Note A Holder of a confirmation in writing from each Rating Agency that
such Transfer will not result in a qualification, downgrade or withdrawal of its
then current rating of the certificates issued pursuant to the related
Securitization. Notwithstanding the foregoing, both prior to and from and after
the Securitization Date, (a) without the Note A Holder's prior consent, which
will be given in the Note A Holder's sole discretion, the Note B Holder shall
not Transfer all or any portion of the Note B to the Mortgage Loan Borrower or
an Affiliate thereof, and any such Transfer shall be void ab initio and (b) in
connection with any Transfer of the Note B, a transferee shall execute an
assignment and assumption agreement whereby such transferee assumes all of the
obligations of the Note B Holder hereunder with respect to Note B, from and
after the date of such assignment. The Note B Holder agrees it will pay the
expenses of the Note A Holder (including all expenses of the Master Servicer,
the Special Servicer and the Trustee) and all expenses relating to the written
confirmation from the Rating Agencies in connection with such Transfer.
20. Intentionally Omitted.
21. No Pledge or Loan. This Agreement shall not be deemed to
represent a pledge of any interest in the Mortgage Loans by the Note A Holder to
the Note B Holder, or a loan from the Note B Holder to the Note A Holder. Except
as otherwise provided in this Agreement and the Servicing Agreement, the Note B
Holder shall have no interest in any property taken as security for the Mortgage
Loans, provided, however, that if any such property
M-1-25
or the proceeds of any sale, lease or other disposition thereof shall be applied
in reduction of the Mortgage Loan Principal Balance, then the Note B Holder
shall be entitled to receive its share of such application in accordance with
the terms of this Agreement.
22. 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 HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
23. Modifications. This Agreement shall not be modified,
cancelled or terminated except by an instrument in writing signed by the parties
hereto (other than as set forth in Section 5(b) hereof). Additionally, for so
long as Note A is contained in a Securitization Trust, 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.
24. 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 herein, none of
the provisions of this Agreement shall be for the benefit of or enforceable by
any Person not a party hereto, except that each Servicer shall be a third party
beneficiary with respect to Sections 2, 3, 4, 6 and 19. The Note A Holder may
assign or delegate its rights or obligations under this Agreement. Upon any such
assignment, the assignee shall be entitled to all rights and benefits of the
Note A Holder hereunder, including, without limitation, the right to make
further assignments and grant additional participations. Subject to Section 19,
the Note B Holder may at any time or from time to time grant to others
assignments of or participations in Note B or assign or delegate its rights or
obligations under this Agreement. Upon any such assignment, the assignee shall
be entitled to all rights and benefits of the Note B Holder hereunder.
25. Counterparts. This Agreement may be executed in any number
of counterparts and all of such counterparts shall together constitute one and
the same instrument.
26. 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.
27. 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
M-1-26
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.
28. Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable laws, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
29. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter contained
in this Agreement and supersedes all prior agreements, understandings and
negotiations between the parties.
30. Bankruptcy. The Note B Holder hereby covenants and agrees
that only the Note A Holder, and not the Note B Holder, has the right to
institute, file, commence, acquiesce, petition under Bankruptcy Code Section 303
or otherwise or join any Person in any such petition or otherwise invoke or
cause any other Person to invoke an Insolvency Proceeding with respect to or
against Mortgage Loan Borrower or seek to appoint a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official with
respect to the Mortgage Loan Borrower or all or any part of its property or
assets or ordering the winding-up or liquidation of the affairs of the Mortgage
Loan Borrower. The Note B Holder further agrees that only the Note A Holder, and
not the Note B Holder, can make any election, give any consent, commence any
action or file any motion, claim, obligation, notice or application or take any
other action in any case by or against the Mortgage Loan Borrower under the
Bankruptcy Code or in any other Insolvency Proceeding. The Note B Holder hereby
appoints the Note A Holder as its agent, and grants to the Note A Holder an
irrevocable power of attorney coupled with an interest, and its proxy, for the
purpose of exercising any and all rights and taking any and all actions
available to the Note B Holder in connection with any case by or against the
Mortgage Loan Borrower under the Bankruptcy Code or in any other Insolvency
Proceeding, including without limitation, the right to file and/or prosecute any
claim, vote to accept or reject a plan, to make any election under Section
1111(b) of the Bankruptcy Code with respect to the Mortgage Loans, and to file a
motion to modify, lift or terminate the automatic stay with respect to the
Mortgage Loans. The Note B Holder hereby agrees that, upon the request of the
Note A Holder, the Note B Holder shall execute, acknowledge and deliver to the
Note A Holder all and every such further deeds, conveyances and instruments as
the Note A Holder may reasonably request for the better assuring and evidencing
of the foregoing appointment and grant.
31. Interim Servicing; Rights of Note B Holder. The Note A
Holder and the Note B Holder agree that until a Securitization and the execution
and delivery of a Securitization Servicing Agreement in connection therewith,
the Mortgage Loans will be serviced by Prudential Asset Resources, Inc.,
pursuant to the terms of the Interim Servicing Agreement, provided that in
addition to the rights set forth herein and in the Interim Servicing Agreement
but only so long as the Mortgage Loans are not being serviced pursuant to
Securitization Servicing Agreement, the Note B Holder shall have, (i) the right
to make a cure advance upon receiving notice of foreclosure, (ii) access to the
documents and records of the Servicer as they relate to the
M-1-27
Mortgage Loan and (iii) the right to direct the Special Servicer to enter into a
modification meeting the requirements of the Interim Servicing Agreement upon an
Event of Default.
[Signatures on following pages]
M-1-28
IN WITNESS WHEREOF, the Initial Note A Holder and Note B
Holder have caused this Agreement to be duly executed as of the day and year
first above written.
Prudential Mortgage Capital Funding, LLC,
By:
--------------------------------------
Name:
Title:
Prudential Mortgage Capital Funding, LLC,
By:
--------------------------------------
Name:
Title:
M-1-29
EXHIBIT A
---------
MORTGAGE LOAN SCHEDULE - (page 1 of 2)
A. Description of Mortgage Loans
------------------------------------- ------------------------------------
Mortgage Loan Borrower: FC Ballston Common, LLC, a
Delaware limited liability company
------------------------------------- ------------------------------------
Date of Mortgage Loans: December 20, 2002 (Effective Date
of Note A being March 1, 2003)
------------------------------------- ------------------------------------
Initial Principal Amount of Note A, as amended and restated as
Mortgage Loans: of March 1, 2003 $49,888,643.91;
Note B $4,000,000.00
------------------------------------- ------------------------------------
Principal Balance of Mortgage Loans $49,888,643.91 -- Note A
as of March 1, 2003: $3,995,928.64 -- Note B
------------------------------------- ------------------------------------
Location of Mortgaged Property: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ , ▇▇ ▇▇▇▇▇
------------------------------------- ------------------------------------
Current Use of Mortgaged Property: Retail
------------------------------------- ------------------------------------
Maturity Date January 1, 2013
------------------------------------- ------------------------------------
M-1-30
B. Description of Notes (as of March 1, 2003)
------------------------------------ ------------------------------
Note A Principal Balance: $49,888,643.91
------------------------------------ ------------------------------
Note B Principal Balance: $3,995,928.64
------------------------------------ ------------------------------
Note A Interest Rate: 5.8453%
------------------------------------ ------------------------------
Note B Interest Rate: 11.01%
------------------------------------ ------------------------------
M-1-31
EXHIBIT B
---------
Initial Note A Holder:
---------------------
Prudential Mortgage Capital Funding, LLC
Notice Address:
--------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Center Four, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Note B Holder:
-------------
Prudential Mortgage Capital Funding, LLC
Notice Address:
--------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Center Four, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
M-1-32
EXHIBIT M-2
FORM OF RENAISSANCE CO-LENDER AGREEMENT
--------------------------------------------------------------------------------
CO-LENDER AGREEMENT
Dated as of February 18, 2003
by and between
Prudential Mortgage Capital Funding, LLC,
(Initial Note A Holder)
and
Prudential Mortgage Capital Funding, LLC
(Note B Holder)
--------------------------------------------------------------------------------
M-2-1
THIS CO-LENDER AGREEMENT (this "Agreement"), dated as of
February 18, 2003, by and between PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC, a
Delaware limited liability company, having an address of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ Center Four, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (together with its
successors in interest, the "Initial Note A Holder" and, together with all of
its other successors and assigns, the "Note A Holder") and PRUDENTIAL MORTGAGE
CAPITAL FUNDING, LLC, a Delaware limited liability company, having an address of
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Center Four, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
(together with its successors and assigns, the "Note B Holder").
W I T N E S S E T H:
WHEREAS, pursuant to that certain mortgage and security
agreement, dated as of February 18, 2003 (collectively, the "Mortgage"), Initial
Note A Holder has originated or acquired a certain mortgage loan in the original
principal amount of $25,000,000.00 ("Loan A") evidenced by a Promissory Note A
in the original principal amount of $25,000,000.00 ("Note A") and a certain
mortgage loan in the original principal amount of $2,000,000.00 ("Loan B")
evidenced by a Promissory Note B in the original principal amount of
$2,000,000.00 ("Note B"), which Loan A and Loan B shall hereinafter be
collectively referred to as the "Mortgage Loans";
WHEREAS, the Mortgage Loans are secured by the Mortgage, as
more particularly described in the attached Mortgage Loan Schedule, on parcels
of real property located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (the
"Mortgaged Property");
WHEREAS, on or about the date hereof, the Initial Note A
Holder, the Note B Holder, Prudential Asset Resources, Inc., as master servicer
(in its capacity as such, the "Interim Master Servicer") and as special servicer
(in its capacity as such, the "Interim Special Servicer") intend to enter into
that certain Interim Servicing Agreement (the "Interim Servicing Agreement")
with respect to the servicing of the Mortgage Loans; and
WHEREAS, the Initial Note A Holder intends to transfer Note A
at some time in the future to a trust pursuant to a pooling and servicing
agreement, which will issue interests and certificates, which certificates
represent, in part, interests in Note A;
WHEREAS, the Note B will not be assigned to the trustee in
connection with the Securitization; and
WHEREAS, the Initial Note A Holder and Note B Holder desire to
set forth their understanding with respect to the relative priority of Note A
and Note B and certain other matters, all as hereinafter set forth.
NOW, THEREFORE, in consideration of the covenants and
agreements hereinafter set forth and other good and valuable consideration, the
mutual receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree, with respect to Mortgage Loans, as follows:
1. Definitions; Conflicts. References to a "Section" or the
"recitals" are, unless otherwise specified, to a Section or the recitals of this
Agreement. Capitalized terms not otherwise defined herein shall have the meaning
ascribed thereto in the Servicing Agreement (as
M-2-2
hereinafter defined). Whenever used in this Agreement, the following terms shall
have the respective meanings set forth below unless the context clearly requires
otherwise.
"Additional Trust Fund Expenses" shall have the meaning
assigned such term in the Servicing Agreement.
"Adjustment Date" shall have the meaning assigned such term in
Section 32(a).
"Adjusted Note A Principal Balance" shall mean the Note A
Principal Balance on the Adjustment Date, after giving effect to any Purchase
Price Adjustment Amounts payable under Section 32.
"Adjusted Note B Principal Balance" shall mean the Note B
Principal Balance on the Adjustment Date, after giving effect to any Purchase
Price Adjustment Amounts payable under Section 32.
"Adjustment Notice" shall have the meaning assigned such term
in Section 32(a).
"Advance Interest" shall mean: (i) if prior to the
Securitization Date, Advance Interest Amount, as such term is defined in the
Interim Servicing Agreement and (ii) if on and after the Securitization Date,
Advance Interest, as such term is defined in the Securitization Servicing
Agreement.
"Advance Interest Rate" shall have the meaning assigned such
term in the Servicing Agreement.
"Advance" shall have the meaning assigned to such term in the
Servicing Agreement.
"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 Co-Lender Agreement, the exhibits
and schedule hereto and all amendments hereof and supplements hereto.
"Appraisal" has the meaning set forth in the Securitization
Servicing Agreement.
"Appraisal Reduction Amount" shall have the meaning given such
term in the Securitization Servicing Agreement.
M-2-3
"Appraisal Trigger Event" shall have the meaning given such
term in the Securitization Servicing Agreement.
"Balloon Payment" shall have the meaning assigned to such term
in the Servicing Agreement.
"Bankruptcy Code" shall mean the United States Bankruptcy
Code, as amended from time to time, any successor statute or rule promulgated
thereto.
"Business Day" shall have the meaning assigned such term in
the Servicing Agreement.
"Closing Date" shall mean February 18, 2003.
"Collection Account" shall mean the account or accounts to be
established under the Servicing Agreement to hold principal and interest
payments on the Mortgage Loans.
"Control Appraisal Event" shall mean that, as of any date of
determination (a) the then outstanding principal balance of Loan B minus (b) the
sum of (1) any Appraisal Reduction Amounts for the Mortgage Loans, (2) any
Realized Losses attributable to the Mortgage Loans, and (3) any Additional Trust
Fund Expenses attributable to the Mortgage Loans, is less than 25% of the
initial Note B Principal Balance.
"Controlling Class Representative" shall have the meaning
given such term in the Securitization Servicing Agreement when Note A is an
asset of a Securitization and shall otherwise mean the Person appointed by the
Controlling Holder pursuant to Section 18(d) of this Agreement.
"Controlling Holder" shall have the meaning assigned such term
in Section 18(a) hereof.
"Defaulted Mortgage Loan Purchase Price" shall mean, with
respect to Loan A, 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
Payment Date following the date on which such purchase occurs, provided payment
is made in good funds by 11:00 a.m. New York local time, (c) any other amounts
due under the Mortgage Loans that is allocable to Note A, (d) any unreimbursed
Advances by the Note A Holder with respect to or allocable to the Mortgage Loans
or Note A, and (e) any accrued and unpaid Advance Interest due on account of
Advances made with respect to or allocable to the Mortgage Loans or Note A
thereon and expenses allocable to the Mortgage Loans or Note A pursuant to the
Servicing Agreement. In determining the Defaulted Mortgage Loan Purchase Price,
amounts payable by the related Mortgage Loan Borrower as a Prepayment Premium
shall not be included. Notwithstanding the foregoing, from and after the date
Note A is included as an asset in a Securitization Trust and until such time
Note A ceases to be an asset of the trust fund created pursuant to the
Securitization Servicing Agreement, the term "Defaulted Mortgage Loan Purchase
Price" shall have the same meaning as the term "Purchase Price" as such term is
defined in the Securitization Servicing Agreement.
M-2-4
"Depositor" shall mean that Person to serve as the depositor
in connection with a Securitization.
"Eligibility Requirements" means, with respect to any Person,
that such Person (i) has total assets (in name or under management) in excess of
$600,000,000 and (except with respect to a pension advisory firm or similar
fiduciary) capital/statutory surplus or shareholder's equity of $250,000,000 and
(ii) is regularly engaged in the business of making or owning commercial real
estate loans or operating commercial mortgage properties.
"Event of Default" shall mean, with respect to the Mortgage
Loans, an "Event of Default" as defined in the Mortgage.
"Interest Rate" shall mean, with respect to either Mortgage
Loan, the annual rate at which interest accrues thereon.
"Insolvency Proceeding" shall mean any proceeding under Title
11 of the United States Code (11 U.S.C. Sec. 101 et. seq.) or any other
insolvency, liquidation, reorganization or other similar proceeding concerning
the Mortgage Loan Borrower, any action for the dissolution of Mortgage Loan
Borrower, any proceeding (judicial or otherwise) concerning the application of
the assets of Mortgage Loan Borrower, for the benefit of its creditors, the
appointment of or any proceeding seeking the appointment of a trustee, receiver
or other similar custodian for all or any substantial part of the assets of
Mortgage Loan Borrower or any other action concerning the adjustment of the
debts of Mortgage Loan Borrower, the cessation of business by Mortgage Loan
Borrower, except following a sale, transfer or other disposition of all or
substantially all of the assets of Mortgage Loan Borrower in a transaction
permitted under the Mortgage Loan Documents.
"Insurance Proceeds" shall have the meaning assigned to such
term in the Servicing Agreement.
"Interim Master Servicer" shall have the meaning assigned such
term in the recitals.
"Interim Servicing Agreement" shall have the meaning assigned
such term in the recitals.
"Interim Special Servicer" shall have the meaning assigned
such term in the recitals.
"Liquidation Proceeds" shall have the meaning assigned to such
term in the Servicing Agreement.
"Loan A" shall have the meaning assigned such term in the
recitals.
"Loan B" shall have the meaning assigned such term in the
recitals.
"Master Servicer" shall have the meaning assigned to such term
in the Servicing Agreement.
M-2-5
"Monthly Payment" shall have the meaning assigned to such term
in the Servicing Agreement.
"Mortgage" shall have the meaning assigned such term in the
recitals.
"Mortgage Interest Rate" shall mean the Note A Interest Rate
or the Note B Interest Rate.
"Mortgage Loan Borrower" shall mean the borrower or borrowers
under the Mortgage Loans.
"Mortgage Loan Borrower Related Parties" shall have the
meaning assigned such term in Section 16.
"Mortgage Loan Documents" shall mean Note A, Note B, the
Mortgage, and all other documents now or hereafter evidencing and/or securing
the Mortgage Loans.
"Mortgage Loan Principal Balance" at any date of
determination, shall mean the sum of the Note A Principal Balance and the Note B
Principal Balance.
"Mortgage Loans" shall have the meaning assigned such term in
the recitals.
"Mortgage Loan Schedule" shall mean the schedule in the form
attached hereto as Exhibit A, which schedule sets forth the principal terms of
the Mortgage Loans.
"Mortgaged Property" shall have the meaning assigned such term
in the recitals.
"Non-Controlling Holder" shall have the meaning assigned such
term in Section 18(b) hereof.
"Note A" shall have the meaning assigned such term in the
recitals.
"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 Mortgage Loan Schedule.
"Note A Ledger" shall mean the ledger entries made by the
Servicer with respect to amounts on deposit in the Collection Account, or the
subaccount thereof, with respect to Note A pursuant to the Servicing Agreement,
which amounts are held on behalf of the Note A Holder.
"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 Principal Balance" shall mean, at any time of
determination, the Initial Note A Principal Balance as set forth in the Mortgage
Loan Schedule, less any payments of principal thereon, forgiveness of any
principal, or other reductions in such amount pursuant to Sections 3, 4, or 5,
as applicable.
M-2-6
"Note B" shall have the meaning assigned such term in the
recitals.
"Note B Holder" shall mean Prudential Mortgage Capital
Funding, LLC, a Delaware limited liability company, 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 Mortgage Loan Schedule, as modified in connection with any
modification to the Mortgage Loans.
"Note B Ledger" shall mean the ledger entries made by the
Servicer with respect to amounts on deposit in the Collection Account, or the
subaccount thereof, with respect to Note B pursuant to the Servicing Agreement,
which amounts are held on behalf of the Note B Holder.
"Note B Percentage Interest" shall mean, as of any date, the
ratio of the Note B Principal Balance to the Mortgage Loan Principal Balance.
"Note B Principal Balance" shall mean at any time of
determination, the Initial Note B Principal Balance as set forth in the Mortgage
Loan Schedule, less any payments of principal thereon, forgiveness of any
principal, or other reductions in such amount pursuant to Sections 3, 4, or 5,
as applicable.
"Payment Date" shall mean the monthly payment date set forth
in the Mortgage Loan Agreement.
"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.
"Permitted Fund Manager" means any Person that on the date of
determination is (i) any nationally-recognized manager of investment funds
investing in debt or equity interests relating to commercial real estate, (ii)
investing through a fund with committed capital of at least $250,000,000 and
(iii) not subject to a Proceeding.
"Person" shall have the meaning assigned such term in the
Servicing Agreement.
"Prepayment Premium" shall mean, with respect to the Mortgage
Loans, any prepayment premium, spread maintenance premium, yield maintenance
premium or similar fee required to be paid in connection with a prepayment of
the Mortgage Loans.
"Proceeding" shall mean any case, proceeding or other action,
whether voluntary or involuntary, against a Person under any existing or future
law of any jurisdiction relating to bankruptcy, insolvency, reorganization or
relief of debtors.
"Purchase Price Adjustment Amount" shall have the meaning
assigned such term in Section 32(b).
M-2-7
"Qualified Institutional Lender" means one or more of the
following:
(i) a real estate investment trust, bank, saving and loan
association, investment bank, insurance company, trust company,
commercial credit corporation, pension plan, pension fund or pension
advisory firm, mutual fund, government entity or plan, provided that
any such Person referred to in this clause (i) satisfies the
Eligibility Requirements;
(ii) an investment company, money management firm or
"qualified institutional buyer" within the meaning of Rule 144A under
the Securities Act of 1933, as amended, or an institutional "accredited
investor" within the meaning of Regulation D under the Securities Act
of 1933, as amended, provided that any such Person referred to in this
clause (ii) satisfies the Eligibility Requirements;
(iii) an institution substantially similar to any of the
foregoing entities described in clauses (i) or (ii) that satisfies the
Eligibility Requirements;
(iv) any entity Controlled by any of the entities described in
clauses (i) or (ii) above;
(v) a Qualified Trustee in connection with a securitization
of, the creation of collateralized debt obligations ("CDO") secured by
or financing through an "owner trust" of, Note B (collectively,
"Securitization Vehicles"), so long as the entire "controlling class"
of such Securitization Vehicle, other than with respect to a CDO
Securitization Vehicle, is held by one or more entities that are
otherwise Qualified Institutional Lenders under clauses (i), (ii),
(iii) or (iv) of this definition; provided that the operative documents
of the related Securitization Vehicle require that (1) in the case of a
CDO Securitization Vehicle, the "equity interest" in such
Securitization Vehicle is owned by one or more entities that are
Qualified Institutional Lenders under clauses (i), (ii), (iii) or (iv)
of this definition; or
(vi) an investment fund, limited liability company, limited
partnership or general partnership where a Permitted Fund Manager or an
entity that is otherwise a Qualified Institutional Lenders under
clauses (i), (ii), (iii) or (iv) of this definition acts as the general
partner, managing member or fund manager and at least 50% of the equity
interests in such investment vehicle are owned, directly or indirectly,
by one or more entities that are otherwise Qualified Institutional
Lenders under clauses (i), (ii), (iii) or (iv) of this definition.
"Qualified Trustee" means (i) a corporation, national bank,
national banking association or a trust company, organized and doing business
under the laws of any state or the United States of America, authorized under
such laws to exercise corporate trust powers and to accept the trust conferred,
having a combined capital and surplus of at least $100,000,000 and subject to
supervision or examination by federal or state authority, (ii) an institution
insured by the Federal Deposit Insurance Corporation or (iii) an institution
whose long-term senior unsecured debt is rated either of the then in effect top
two rating categories of each of the Rating Agencies.
M-2-8
"Rating Agencies" shall mean Standard & Poor's Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P"), and ▇▇▇▇▇'▇
Investors Service, Inc. ("Moody's") 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 Loan 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.
"Realized Losses" shall have the meaning assigned such term in
the Servicing Agreement.
"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 transfer of Loan A to the
Trustee, on behalf of certain certificateholders, in connection with the
inclusion of Loan 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.
"Securitization Servicing Agreement" shall mean a Pooling and
Servicing Agreement, to be entered into in connection with the Securitization,
by and among (a) such Person which serves as trustee from and after the
Securitization Date, (b) each such Person who serves as master servicer from and
after the Securitization Date, (c) each such Person which serves as special
servicer from and after the Securitization Date, and (d) the such Person which
serves as depositor from and after the Securitization Date, and any other
additional Persons that may be party to such Pooling and Servicing Agreement,
which is in a form consented to by the Initial Note A Holder. The Note B Holder
shall have no right to consent to the form of the Securitization Servicing
Agreement; provided, that such agreement shall not be modified in any manner
adverse to the Note B Holder without the prior consent of the Note B Holder.
Revisions to the Securitization Servicing Agreement shall be provided to counsel
of the Note B Holder.
"Securitization Trust" shall mean the trust formed pursuant to
a Securitization pursuant to which the Note A is held.
"Servicer" shall mean any of the Master Servicer and the
Special Servicer, as the context requires, with respect to the Mortgage Loans.
"Servicing Agreement" shall mean, with respect to the Mortgage
Loans, prior to the Securitization Date, the Interim Servicing Agreement, and,
from and after the Securitization Date, the Securitization Servicing Agreement.
"Servicing Fee Rate" shall have the meaning assigned such term
(or, alternatively, to the term "Master Servicing Fee Rate") in the Servicing
Agreement.
M-2-9
"Servicing Standard" shall have the meaning assigned such term
in the Securitization Servicing Agreement.
"Special Servicer" shall have the meaning assigned to such
term in the Servicing Agreement.
"Specially Service Mortgage Loan" has the meaning set forth in
the Securitization Servicing Agreement.
"Stabilization Guaranty" shall mean that certain Stabilization
Guaranty made by ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Corporation, a Delaware corporation, for the
benefit of Prudential Mortgage Capital Company, LLC, a Delaware limited
liability company (the originator of the Loan A and Loan B) and dated February
18, 2003.
"Transfer" shall have the meaning assigned such term in
Section 19.
"Trustee" shall mean the bank or trust company as may be
selected by the Depositor and approved by the Rating Agencies to act as trustee
for the Securitization.
"Trustee Fee Rate" shall mean the Trustee Fee Rate, as defined
in the Securitization Servicing Agreement.
"Workout" shall mean any written modification, waiver,
amendment, restructuring or workout of the Mortgage Loans or the Mortgage Note
entered into with the Mortgage Borrower in accordance with the Servicing
Agreement.
2. Purchase of Note B. On the Closing Date, the Note B Holder
shall be deemed the owner of Note B. The Note B Holder acknowledges that the
Note A Holder intends to include Loan A in a Securitization.
3. 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, principal and other amounts 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, principal and other amounts with respect to
Note A. If no monetary Event of Default or any non-monetary Event of Default
such that it would cause the Mortgage Loans to be Specially Serviced Mortgage
Loans, exists and is continuing, all amounts tendered by the Mortgage Loan
Borrower or otherwise available for payment on or with respect to or in
connection with the Mortgage Loans (including amounts received by any Servicer
pursuant to the Servicing Agreement but excluding any amounts for required
reserves or escrows required by the Mortgage Loan Documents) whether received in
the form of monthly payments, the Balloon Payment, prepayments in whole or in
part, 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 (i) proceeds, awards or settlements to be
applied to the restoration or repair of the Mortgaged Property or released to
the Mortgage Loan Borrower in accordance with the Servicing Standard or the
terms of the Mortgage Loan Documents, and amounts collected on the Mortgage
Loans that are then due and payable to any Servicer or the Trustee, including
without limitation reimbursement of Advances and Advance Interest incurred in
connection with the Mortgage
M-2-10
Loans) shall be applied in the following order of priority (and payments shall
be made at such times as are set forth in the Servicing Agreement):
(a) first, to: the Note A Holder in an amount equal to any
Advance in connection with the Mortgage Loans, and accrued and unpaid interest
on any Advance or indemnification or any other cost or expense related to the
Note A, including without limitation any Additional Trust Fund Expenses incurred
pursuant to the Servicing Agreement, exclusive of any portion thereof that had
been covered by an Advance that was previously reimbursed out of collections on
or with respect to the Mortgage Loans as contemplated herein;
(b) second, pro rata, to: (A) the Note A Holder in an amount
equal to the accrued and unpaid interest on the Note A Principal Balance at the
Note A Interest Rate, exclusive of any portion thereof that had been covered by
an Advance that was previously reimbursed out of collections on or with respect
to the Mortgage Loans as contemplated herein, and (B) the Note B Holder in an
amount equal to the accrued and unpaid interest on the Note B Principal Balance
at the Note B Interest Rate (and payable under the Applicable Servicing
Agreement) minus the applicable Servicing Fee Rate (the "Note B Net Interest
Rate"), exclusive of any portion thereof that had been covered by an Advance
that was previously reimbursed out of collections on or with respect to the
Mortgage Loans as contemplated herein;
(c) third: (A) to the Note A Holder, the scheduled principal
payments received, if any, with respect to Loan A, exclusive of any portion
thereof that had been covered by an Advance that was previously reimbursed out
of collections on or with respect to the Mortgage Loans as contemplated herein,
and (B) the Note B Holder, the scheduled principal payments received (and
payable under the Applicable Servicing Agreement), if any, with respect to Loan
B, exclusive of any portion thereof that had been covered by an Advance that was
previously reimbursed out of collections on or with respect to the Mortgage
Loans as contemplated herein;
(d) fourth, pro rata, to: (A) the Note A Holder in an amount
equal to the Note A Percentage Interest of any unscheduled principal payments,
and (B) the Note B Holder in an amount equal to the Note B Percentage Interest
of any unscheduled principal payments;
(e) fifth, pro rata, to: (A) the Note A Holder in an amount
equal to the Note A Percentage Interest of any Prepayment Premium, to the extent
actually paid by the Mortgage Loan Borrower, and (B) the Note B Holder in an
amount equal to the Note B Percentage Interest of any Prepayment Premium, to the
extent actually paid by the Mortgage Loan Borrower; and
(f) sixth, if any excess amount is paid by the Mortgage Loan
Borrower, and not otherwise applied in accordance with the foregoing clauses
(a)-(e), such amount shall be paid as follows: (A) first, to the Note A Holder
up to the amount of any unreimbursed costs and expenses paid by such holder with
respect to the Mortgage Loans pursuant to this Agreement or the Servicing
Agreement, (B) second, to the Note B Holder up to the amount of any unreimbursed
costs and expenses paid by such holder with respect to the Mortgage Loans
pursuant to this Agreement or the Servicing Agreement, and (C) finally, any
remaining amounts to the Note A Holder and Note B Holder in accordance with
their respective initial Percentage Interests.
M-2-11
The right of the Note B Holder to receive payments under the
Stabilization Guaranty shall at all times be junior, subject and subordinate to
the right of the Note A Holder to receive payments under the Stabilization
Guaranty. Payments received under the Stabilization Guaranty shall be applied in
the order of priority established under Section 4.
4. Payments Following an Event of Default or Under the
Stabilization Guaranty. Payments of interest and principal shall be made in
accordance with Section 3 hereof and the terms of the Servicing Agreement;
provided that, if a monetary Event of Default or any non-monetary Event of
Default such that it would cause the Mortgage Loans to be Specially Serviced
Mortgage Loans, exists and is continuing, all amounts tendered by the Mortgage
Loan Borrower or otherwise available for payment on or with respect to or in
connection with the Mortgage Loans or the related Mortgaged Property or amounts
realized as proceeds thereof (including amounts received by any Servicer
pursuant to the Servicing Agreement but excluding any amounts for required
reserves or escrows required by the Mortgage Loan Documents), whether received
in the form of monthly payments, the Balloon Payment, prepayments in whole or in
part, proceeds under title, hazard or other insurance policies or awards or
settlements in respect of condemnation proceedings or similar domain (other than
(i) proceeds, awards or settlements to be applied to the restoration or repair
of the Mortgaged Property or released to the Mortgage Loan Borrower in
accordance with the Servicing Standard or the terms of the Mortgage Loan
Documents, and (ii) amounts collected on the Mortgage Loans that are then due
and payable to any Servicer or the Trustee, including without limitation
reimbursement of Advances and Advance Interest incurred in connection with the
Mortgage Loans) shall be applied in the following order of priority (and
payments shall be made at such times as are set forth in the Servicing
Agreement):
(a) first, to the Note A Holder in an amount equal to any
Advance in connection with the Mortgage Loans, and accrued and unpaid interest
on any Advance or indemnification or any other cost or expense related to the
Note A, including without limitation any Additional Trust Fund Expenses, made
pursuant to the Servicing Agreement, exclusive of any portion thereof that had
been covered by an Advance that was previously reimbursed out of collections on
or with respect to the Mortgage Loans as contemplated herein;
(b) second, to the Note A Holder in an amount equal to the
accrued and unpaid interest on the Note A Principal Balance at the Note A
Interest Rate, exclusive of any portion thereof that had been covered by an
Advance that was previously reimbursed out of collections on or with respect to
the Mortgage Loans as contemplated herein;
(c) third, to the Note A Holder in an amount equal to the Note
A Principal Balance, until such amount has been paid in full;
(d) fourth, to the Note B Holder in an amount equal to the
accrued and unpaid interest on the Note B Principal Balance at the Note B Net
Interest Rate, exclusive of any portion thereof that had been covered by an
Advance that was previously reimbursed out of collections on or with respect to
the Mortgage Loans as contemplated herein;
(e) fifth, to the Note B Holder in an amount equal to the Note
B Principal Balance, until such amount has been paid in full;
M-2-12
(f) sixth, any default interest at the default interest rate
in excess of the interest paid in accordance with clauses (b) and (d) above on
(i) first, Note A, in an amount equal to that portion of any such default
interest actually paid by the Mortgage Loan Borrower that accrued with respect
to Loan A and (ii) then Note B, in an amount equal to that portion of any such
default interest actually paid by the Mortgage Loan Borrower that accrued with
respect to Loan B;
(g) seventh, to the Note A Holder in an amount equal to the
Note A Percentage Interest of any Prepayment Premium, to the extent actually
paid by the Mortgage Loan Borrower;
(h) eighth, to the Note B Holder in an amount equal to the
Note B Percentage Interest of any Prepayment Premium, to the extent actually
paid by the Mortgage Loan Borrower;
(i) ninth, if any excess amount is paid by the Mortgage Loan
Borrower, and not otherwise applied in accordance with the foregoing clauses
(a)-(h), such amount shall be paid as follows: (A) first, to the Note A Holder
up to the amount of any unreimbursed costs and expenses paid by such holder with
respect to the Mortgage Loans pursuant to this Agreement or the Servicing
Agreement, (B) second, to the Note B Holder up to the amount of any unreimbursed
costs and expenses paid by such holder with respect to the Mortgage Loans
pursuant to this Agreement or the Servicing Agreement, and (C) finally, any
remaining amounts to the Note A Holder and Note B Holder in accordance with
their respective initial Percentage Interests.
Notwithstanding the foregoing, any payments received under the
Stabilization Guaranty shall be applied in the following order of priority (and
payments shall be made at such times as are set forth in the Servicing
Agreement):
(1) first, to the Note A Holder, until all amounts due
and payable under the Note A have been paid;
(2) second, to the Note A Holder, until all other amounts
due and payable to Note A Holder under the Mortgage
Loan Documents are paid; and
(3) third, to the Note B Holder.
5. Administration of the Loan.
(a) From and after the date hereof, administration of the
Mortgage Loan shall be governed by this Agreement and (x) prior to a
Securitization, the Interim Servicing Agreement and (y) after a Securitization,
the Securitization Servicing Agreement, in each case the terms of which are
hereby incorporated by reference into this Agreement in their entirety to the
same extent and with the same force as if fully set forth herein, and each party
hereby agrees to be bound thereby. The Note A Holder shall have the right to
appoint any sub-servicer with respect to the Mortgage Loans in accordance with
the terms of, and subject to the limitations set forth in, any Securitization
Servicing Agreement. Notwithstanding anything to the contrary contained herein
(including all of this Section 5 and Section 17(a)), until a Securitization of
Note
M-2-13
A and the execution and delivery of a Securitization Servicing Agreement in
connection therewith, or if Note A ceases to be an asset of the trust fund
created pursuant to the Securitization Servicing Agreement, the administration
and servicing of the Mortgage Loans shall be performed in accordance with the
provisions of the Interim Servicing Agreement and this Agreement, and the Note A
Holder and the Note B Holder each hereby agree to be bound by the terms of the
Interim Servicing Agreement, as modified hereby. At any time that the Mortgage
Loans are no longer subject to the Interim Servicing Agreement, unless a
Securitization Servicing Agreement is in place and Note A is an asset of the
trust fund created thereunder, the Note A Holder shall cause the Mortgage Loans
to be serviced pursuant to a servicing agreement that is identical to the
Interim Servicing Agreement with Prudential Assets Resources, Inc., as the
Servicer (other than as necessary to reflect changes as are not materially
adverse to the Note B Holder), as modified hereby, and all references herein to
the "Interim Servicing Agreement" shall mean such subsequent servicing
agreement; provided, however, that until a replacement servicing agreement has
been entered into, (i) the Note A Holder shall cause the Mortgage Loans to be
serviced pursuant to the terms of the Interim Servicing Agreement as if such
agreement were still in full force and effect with respect to the Mortgage Loans
and (ii) the actual servicing of the Mortgage Loans may be performed by any
entity appointed by the Note A Holder and does not have to be performed by the
service providers set forth in the Interim Servicing Agreement. Any such entity
servicing the Mortgage Loans pursuant to the preceding clause (ii) must perform
such servicing in accordance with the Servicing Standard and the provisions of
the Interim Servicing Agreement and this Agreement. Notwithstanding anything to
the contrary contained herein (including all of this Section 5 and Section
17(a)), in accordance with the applicable Servicing Agreement, the Note A Holder
shall cause the Servicers to service and administer the Mortgage Loans in
accordance with Servicing Standard as set forth in such Servicing Agreement,
taking into account the interests of the Note A Holder and the Note B Holder (so
long as such Note B Holder is not an Affiliate of the Mortgage Loan Borrower),
with a view to maximizing the realization for both such Holders as a collective
whole (it being understood that the interest of the Note B Holder is a junior
interest, subject to the terms and conditions of this Agreement), and any Note A
Holder and Note B Holder who is not an Affiliate of the Mortgage Loan Borrower
shall be deemed a third party beneficiary of such provisions of the Interim
Servicing Agreement.
(b) Notwithstanding anything to the contrary contained herein,
but subject to the terms and conditions of Sections 5(a) and 18 of this
Agreement and the terms and conditions of the Servicing Agreement, if the Note A
Holder in connection with a Workout or proposed Workout of the Mortgage Loans,
modifies the terms thereof such that (i) the Mortgage Loan Balance is decreased,
(ii) the 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
terms of the Mortgage Loans, 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 the Note A remaining the same as they are on
the date hereof, and the Note B Holder shall bear the full economic effect of
all waivers, reductions or deferrals of amounts due on the Mortgage Loans and
Note A and Note B attributable to such Workout (up to the amount otherwise due
on the Note B). As set forth in this Section 5(b), the Note A Holder may make
any amendments to Sections 3 and 4 hereof in order to reflect the effect of such
changes in the Mortgage Loans. Subject to the Servicing Agreement, in the case
of any modification or amendment described above, the Note A
M-2-14
Holder will have the sole authority and ability to revise the payment provisions
set forth in Section 3 and Section 4 above in a manner that reflects the Note
B's subordination to the Note A with respect to the loss that is the result of
such amendment or modification, including: (i) the ability to increase the Note
A Percentage Interest and to reduce the Note B Percentage Interest in a manner
that reflects a loss in principal as a result of such amendment or modification
and (ii) the ability to change the Note A Interest Rate and the Note B Interest
Rate in order to reflect a reduction in the Interest Rate of the Mortgage Loans.
(c) All rights and obligations of the Note A Holder described
hereunder may be exercised by the Master Servicer, the Special Servicer or the
Trustee on behalf of the Note A Holder.
(d) Pursuant to the Servicing Agreement, the Master Servicer
(whose identity may change from time to time as provided in the Servicing
Agreement) will be appointed as the servicer of the Mortgage Loans and the
Special Servicer (whose identity may change from time to time as provided in the
Servicing Agreement) will be appointed as the special servicer of the Mortgage
Loans, and the parties agree that the Master Servicer and Special Servicer will
service the Mortgage Loans on behalf of the Note A Holder and the Note B Holder.
6. Payment Procedure. The Note A Holder and Note B Holder each
hereby directs the Servicer, in accordance with the priorities set forth in
Section 3 or 4, as applicable, and subject to the terms of the Servicing
Agreement, to deposit to the appropriate Collection Account (a) all payments
received with respect to and allocable to Note A and (b) all payments received
with respect to and allocable to Note B. The Servicer shall deposit such amounts
in the Collection Account and credit such amounts to the Note A Ledger or the
Note B Ledger, as applicable, on the Business Day following the date such
payment was received by the Servicer from the Mortgage Loan Borrower. If any
Servicer holding or having distributed any amount received or collected in
respect of Note A or Note B determines, or 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, 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, Servicer, Special Servicer or such other
person or entity with respect thereto. 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 Loans in excess of its distributable share
thereof, it will promptly remit such excess to the Servicer. The 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 Loans against any future payments due
to the Note A Holder or the Note B Holder, as applicable, under the Mortgage
Loans, 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
M-2-15
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.
7. Limitation on Liability. Subject to Section 18(c), 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 A Holder shall have no fiduciary responsibilities to the Note B Holder.
Subject to Section 18(c), 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. The Note B Holder shall have no fiduciary
responsibilities to the Note A Holder.
8. Purchase of Note A By Note B Holder. In the event that (a)
while Loan A is in a Securitization Trust, at any time prior to the maturity
date, Loan A at any time becomes 90 days delinquent with respect to any Monthly
Payment due thereunder; or (b) (i) at any time that Loan A is not in a
Securitization Trust or (ii) if Loan A is in a Securitization Trust, from and
after the maturity date, (1) an Event of Default has occurred and is continuing
under the Mortgage Loans, and (2) the Mortgage Loans become Specially Serviced
Mortgage Loans but prior to foreclosure of the Mortgage Loans, or (c) upon a
termination of the Securitization Trust, then upon notice from the Note A Holder
(a "Repurchase Option Notice") of such occurrence (which notice the Note A
Holder shall direct the Servicer to give to the Note B Holder promptly following
the Servicer's gaining actual knowledge of the occurrence of such event), for as
long as the Note A Holder has not committed itself to a sale of Note A (or the
related Mortgaged Property), the Note B Holder shall have the right, by written
notice to the Note A Holder (a "Note B Holder Repurchase Notice"), given within
18 months from receipt by the Note B Holder of the Repurchase Option Notice,
provided in the case of clauses (a) and (b) above that an Event of Default has
continued in respect of Loan A, 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, at the Defaulted Mortgage Loan Purchase Price, on a date (the
"Repurchase Date") not less than five (5) Business Days nor more than thirty
(30) Business Days after the date of the Note B Holder Repurchase Notice, as
shall be established by the Note A Holder, unless the Note A Holder and the Note
B Holder otherwise agree to extend such time frame. The Note B Holder Repurchase
Option Notice shall include an initial calculation of the Defaulted Mortgage
Loan Purchase Price (the "Initial Calculation"), based upon an acquisition by
the Note B Holder to be completed within 10 days after such Note B Holder
Repurchase Option Notice being sent. The Initial Calculation is not binding upon
the Note A Holder or the Note B Holder and shall be subject to the final
calculation of the Defaulted Mortgage Loan Purchase Price. The Defaulted
Mortgage Loan Purchase Price shall be calculated by the 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,
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 (including commencement
M-2-16
and prosecution of any foreclosure proceedings), if appropriate, in accordance
with the Servicing Standard and the terms of the Servicing Agreement.
9. Additional Understanding. For as long as the Mortgage Loans
remain outstanding:
(a) Books and Records. Upon any inspection of the Mortgaged
Property or books or records of the Mortgage Loan Borrower by the Note A Holder
(or any Servicer acting on its behalf) pursuant to the terms of the Mortgage
Loan Documents, the Note A Holder (or any Servicer acting on its behalf) shall,
upon written request of the Note Holder, encourage the Mortgage Loan Borrower to
reasonably cooperate to provide the Note B Holder access for its own inspection
of such Mortgaged Property or such books or records, and the Note A Holder (or
any Servicer acting on its behalf) shall, subject to the terms of the Mortgage
Loan Documents, at the request of Note B Holder, discuss the business, financial
and other condition of the Mortgage Loan Borrower with officers of the Mortgage
Loan Borrower and the accountants and other representatives of the Mortgage Loan
Borrower (to the extent such Persons are willing to so discuss), all costs
incurred by the Note A Holder (or any Servicer acting on its behalf) to be paid
for by the Note B Holder. In no event shall the Note A Holder (or any Servicer
acting on its behalf) be obligated to provide to the Note B Holder any
information that the Note A Holder (or any Servicer acting on its behalf)
concludes in its sole but good faith determination is confidential or which the
Note A Holder (or any Servicer acting on its behalf) believes to be of a
proprietary or sensitive nature.
(b) Financial Statements Etc. Upon written request of the Note
B Holder to the Note A Holder (or any Servicer acting on its behalf), the Note A
Holder (or any Servicer acting on its behalf) shall, at the sole cost of the
Note Holder, provide the Note B Holder with copies of each financial statement
delivered to the Note A Holder (or any Servicer acting on its behalf) pursuant
to the terms of the Mortgage Loan Documents. Subject to the terms of the
Mortgage Loan Documents, upon the reasonable request of Note B Holder, the Note
A Holder (or any Servicer acting on its behalf) shall also deliver to the Note B
Holder copies of any other documents relating to the Mortgage Loan, including,
without limitation, property inspection reports and loan servicing statements,
all at the sole cost of the Note B Holder. In no event shall the Note A Holder
(or any Servicer acting on its behalf) be obligated to provide to the Note B
Holder any information that the Note A Holder (or any Servicer acting on its
behalf) concludes in its sole but good faith determination is confidential or
which the Note A Holder (or any Servicer acting on its behalf) believes to be of
a proprietary or sensitive nature.
(c) Copies. Any copies to be furnished by a Servicer under
this Agreement may be furnished by hard copy or electronic means.
10. Representations of the Note B Holder. The Note B Holder
represents and warrants, and it is specifically understood and agreed, that:
(a) subject to Section 18(c), Note A Holder shall have no
liability or responsibility to the Note B Holder except as expressly provided
herein or for actions that are taken or omitted to be taken by the Note A Holder
that constitute gross negligence or willful misconduct or that constitute a
breach of this Agreement;
M-2-17
(b) the execution, delivery and performance of this Agreement
is within the Note B Holder's 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;
(c) it is duly organized, validly existing, in good standing
and possesses of all licenses and authorizations necessary to carry on its
business;
(d) this Agreement has been duly executed and delivered by the
Note B Holder;
(e) all consents, approvals, authorizations, orders or filings
of or with any court or governmental agency or body, if any, required for the
execution, delivery and performance of this Agreement by the Note B Holder have
been obtained or made; and
(f) there is no pending action, suit, proceeding, arbitration
or governmental investigation against the Note B Holder, an adverse outcome of
which materially affects its performance under this Agreement.
The Note B Holder expressly and irrevocably waives for itself
and any Person claiming through or under the Note B Holder any and all rights
that it may have under Section 1315 of the New York Real Property Actions and
Proceedings Law or the provisions of any similar law which purports to give a
junior loan interest or participant the right to initiate any loan enforcement
or foreclosure proceedings.
11. Representations of the Note A Holder. The Note A Holder
repre-sents and warrants, and it is specifically understood and agreed, that:
(a) subject to Section 18(c), Note B Holder shall have no
liability or responsibility to the Note A Holder except as expressly provided
herein or for actions that are taken or omitted to be taken by the Note B Holder
that constitute gross negligence or willful misconduct or that constitute a
breach of this Agreement;
(b) the execution, delivery and performance of this Agree-ment
is within Note A Holder's 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 binding obligation of the Note A Holder
enforceable against the Note A Holder in accordance with its terms;
(c) it is duly organized, validly existing, in good standing
and possession of all licenses and authorizations necessary to carry on its
business;
(d) this Agreement has been duly executed and delivered by the
Note A Holder;
M-2-18
(e) all consents, approvals, authorizations, orders or filings
of or with any court or governmental agency or body, if any, required for the
execution, delivery and performance of this Agreement by the Note A Holder has
been obtained or made;
(f) there is no pending action, suit, proceeding, arbitration
or governmental investigation against the Note A Holder, an adverse outcome of
which materially affects performance under this Agreement.
12. Independent Analysis of the Note B Holder. The Note B
Holder by its acquisition of Note B shall be deemed to (a) represent that it
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 and (b)
acknowledge that the Note A Holder has made no representations or warranties
with respect to the Mortgage Loans, and that the Note A Holder shall have no
responsibility for (i) the collectability of the Mortgage Loans, (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 Initial Note A Holder in connection with the origination of the
Mortgage Loans, (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 from the failure or refusal of the Mortgage Loan
Borrower to pay interest, principal or other amounts due under the Mortgage
Loans, defaults by the Mortgage Loan Borrower under the Mortgage Loan Documents
or the unenforceability of any of the Mortgage Loan Documents for reasons other
than gross negligence, willful misconduct or breach of this Agreement by the
Note A Holder or negligence, willful misconduct or bad faith by any Servicer.
13. 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 relationship created hereby between the Note A
Holder and the Note B Holder as 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 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.
14. Not a Security. Neither Note A nor Note B shall be deemed
to be securities within the meaning of the Securities Act of 1933 or the
Securities Exchange Act of 1934.
15. Exercise of Remedies by the Note A Holder. Notwithstanding
anything to the contrary contained herein (including the provisions of Section
5), the Servicing Agreement shall provide that the Servicer shall service and
administer the Mortgage Loans on behalf of the Note A Holder and the Note B
Holder in accordance with the Servicing Standard and any Note B
M-2-19
Holder who is not the Mortgage Loan Borrower or an Affiliate thereof shall be
deemed a third party beneficiary of such provisions of the Servicing Agreement.
16. Other Business Activities of Note A Holder. The Note B
Holder acknowledges that the Note A Holder and its Affiliates 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 Note A Holder shall
not assign Note A to the Mortgage Loan Borrower or any Mortgage Loan Borrower
Related Parties.
17. Exercise of Remedies by the Servicer.
(a) Subject to Section 18 of this Agreement, and except as
otherwise provided in this Agreement or the applicable Servicing Agreement, the
Servicer, on behalf of the Note A Holder and the Note B Holder (as a collective
whole), shall have the sole and exclusive authority with respect to the
administration of, and exercise of rights and remedies with respect to, the
Mortgage Loans, including, without limitation, the sole and exclusive authority
to (i) modify or waive any of the terms of the Mortgage Loan Documents, (ii)
consent to any action or failure to act by the Mortgage Loan Borrower or any
party to the Mortgage Loan Documents, (iii) vote all claims with respect to the
Mortgage Loan in any bankruptcy, insolvency or other similar proceedings and
(iv) to take legal action to enforce or protect the Holders' interests with
respect to the Mortgage Loans or to refrain from exercising any powers or rights
under the Mortgage Loan Documents, including the right at any time to call or
waive any Events of Default, or accelerate or refrain from accelerating the
Mortgage Loans or institute any foreclosure action, and the Note B Holder shall
have no voting, consent or other rights whatsoever with respect to the
Servicer's administration of, or exercise of its rights and remedies with
respect to, the Mortgage Loans on behalf of the Note A Holder; provided,
however, that any such action taken by the Servicer on behalf of the Note A
Holder and the Note B Holder (as a collective whole) pursuant to this Section 17
shall be consistent with the terms of the applicable Servicing Agreement.
Subject to the terms and conditions of the applicable Servicing Agreement and
subject to Section 18 of this Agreement, so long as Note A is an asset of a
Securitization, the Servicer on behalf of the Note A Holder and the Note B
Holder (as a collective whole) shall have the sole and exclusive authority to
make servicing advances with respect to the Mortgage Loan. Except as otherwise
provided in this Agreement (including without limitation the provisions of
Section 18), the Note B Holder agrees that it shall have no right to, and hereby
presently and irrevocably assigns and conveys to the Servicer on behalf of Note
A Holder, the rights, if any, that the Note B Holder has to, (i) call or cause
the Note A Holder or such Servicer to call an Event of Default under the
Mortgage Loans, (ii) exercise any remedies with respect to the Mortgage Loans or
the Mortgage Loan Borrower, including, without limitation, filing or causing the
Note A Holder or such Servicer to file any bankruptcy petition against the
Mortgage Loan Borrower, (iii) vote any claims with respect to the Mortgage Loan
in any bankruptcy, insolvency or similar type of proceeding of the Mortgage Loan
Borrower or (iv) so long as Note A is an asset of a Securitization, make
servicing advances with respect to the Mortgage Loans. The Note B Holder shall,
from time to time, execute such documents as the Note A Holder or any Servicer
shall reasonably require to evidence such assignment with respect to the rights
described in
M-2-20
clause (iii) of the preceding sentence. Subject to Section 18 of this Agreement,
the Note B Holder acknowledges that the Servicer on behalf of the Note A Holder
and the Note B Holder (as a collective whole) may in its sole discretion
exercise, or omit to exercise, any rights that the Servicer on behalf of the
Note A Holder may have under this Agreement or the applicable Servicing
Agreement in a manner that may be adverse to the interests of the Note B Holder
and that the Servicer on behalf of Note A Holder shall have no liability
whatsoever to the Note B Holder in connection with the exercise of rights by the
Note A Holder or any omission by the Note A Holder to exercise such rights.
Subject to the terms of this Agreement, the Servicer on behalf of Note A Holder
shall not have any fiduciary duty to the Note B Holder in connection with the
administration of the Mortgage Loans. The Note B Holder expressly and
irrevocably waives for itself and any Person claiming through or under the Note
B Holder any and all rights that it may have under Section 1315 of the New York
Real Property Actions and Proceedings Law or the provisions of any similar law
which purports to give a junior loan participant the right to initiate any loan
enforcement or foreclosure proceedings. The foregoing provisions of this Section
17(a) shall not limit the right of the Note B Holder or an Affiliate thereof to
be a Servicer or to exercise its rights as Controlling Holder under this
Agreement or Controlling Class Representative under any applicable Servicing
Agreement.
(b) Notwithstanding anything to the contrary contained herein,
the exercise by the Servicer on behalf of Note A Holder of its rights under this
Section 17 shall be subject in all respects to any section of any Securitization
Servicing Agreement governing REMIC administration, and in no event shall the
Servicer on behalf of Note A Holder be permitted to take any action or refrain
from taking any action which would violate the laws of any applicable
jurisdiction, breach the Mortgage Loan Documents, be inconsistent with the
Servicing Standard or violate any other provisions of the applicable Servicing
Agreement, not be in the best economic interest of the Note A Holder and the
Note B Holder (as a collective whole, i.e., as if a single Person held both
Mortgage Loans), expand the scope of the Servicer's responsibilities under the
Servicing Agreement, cause adverse tax consequences for the Note A Holder, or
cause the arrangement evidenced hereby not to be treated as a "grantor trust"
for Federal income tax purposes. The Servicer on behalf of the Note A Holder and
the Note B Holder (as a collective whole) shall exercise such rights and powers
described in this Section 17 on the understanding that the Servicer on behalf of
the Note A Holder and the Note B Holder (as a collective whole) shall administer
the Mortgage Loans as is consistent with the applicable Servicing Agreement and
this Agreement, provided that the Note A Holder and any Servicer acting on its
behalf shall not be liable to the Note B Holder with respect to anything the
Note A Holder or such Servicer may do or omit to do in relation to the Mortgage
Loans, other than as set forth in Section 7 hereof, provided that such action or
failure to act is consistent with the applicable Servicing Agreement and this
Agreement. Without limiting the generality of the foregoing, the Note A Holder
and any Servicer acting on its behalf may rely on the advice of legal counsel,
accountants and other experts (including those retained by the Mortgage Loan
Borrower) and upon any written communication or telephone conversation which the
Note A Holder or such Servicer believes to be genuine and correct or to have
been signed, sent or made by the proper person or entity.
18. Certain Powers of the Controlling Holder.
M-2-21
(a) Subject to Section 4 and Section 18(c) of this Agreement,
the Controlling Holder (as defined herein) or a representative appointed by the
Controlling Holder pursuant to Section 18(d) will be entitled to advise the Note
A Holder or the Servicer, as applicable, with respect to the following actions;
and further, subject to Section 4 and Section 18(c), neither the Note A Holder
nor the Servicer will be permitted to take any of the following actions unless
and until it has notified the Controlling Holder in writing by a notice in
capitalized, bold faced 14 point type containing the following statement at the
top of the first page: "THIS IS A REQUEST FOR SECTION 18 ACTION APPROVAL. IF THE
CONTROLLING HOLDER FAILS TO APPROVE OR DISAPPROVE THE ENCLOSED SECTION 18 ACTION
WITHIN FIVE (5) BUSINESS DAYS, THE NOTE A HOLDER OR THE SPECIAL SERVICER, AS THE
CASE MAY BE, MAY DELIVER A DEEMED APPROVAL NOTICE", and (b) if the Controlling
Holder fails to either approve or reject said Section 18 Action within such five
(5) business day period after receipt of the first notice, and having been
provided with all reasonably requested information with respect thereto, and the
Note A Holder or the Special Servicer, as the case may be, delivers the Section
18 Action request to the Controlling Holder accompanied by a notice in
capitalized, bold faced 14 point type containing the following statement at the
top of the first page: "THIS IS A SECOND REQUEST FOR SECTION 18 ACTION APPROVAL.
IF THE CONTROLLING HOLDER FAILS TO APPROVE OR DISAPPROVE THE ENCLOSED SECTION 18
ACTION WITHIN FIVE (5) BUSINESS DAYS, SUCH SECTION 18 ACTION WILL BE DEEMED
APPROVED BY THE CONTROLLING HOLDER", then, if the Controlling Holder fails to
approve or reject the Section 18 Action within such five (5) business day period
(approval or rejection by notice by facsimile on the same day being acceptable),
then the Controlling Holder's approval will be deemed to have been given to:
(i) any proposed foreclosure upon or comparable conversion
(which may include acquisition as an REO Property) of the ownership of
the Mortgaged Property and the other collateral securing the Mortgage
Loans if they come into and continue in default or other enforcement
action under the Mortgage Loan Documents (including, without
limitation, under the Stabilization Guaranty);
(ii) any proposed modification, amendment or waiver of a
monetary term (including, without limitation, the timing of payments or
forgiveness of interest or principal, but excluding any term relating
to late charges) or any material non-monetary term of the Mortgage
Loans;
(iii) any proposed successor property manager with respect to,
or any material alteration of, the Mortgaged Property;
(iv) any waiver of the requirements under the Mortgage Loans
with respect to property insurers or the manner in which payments or
other collections on the Mortgage Loans are held and/or invested;
(v) any proposed sale of the Mortgaged Property or transfer of
an interest in the Mortgage Loan Borrower or the related Mortgaged
Property;
(vi) any acceptance of a discounted payoff of the Mortgage
Loans;
M-2-22
(vii) any determination to bring the Mortgaged Property into
compliance with applicable environmental laws or to otherwise address
hazardous materials located at the Mortgaged Property;
(viii) any material release of collateral for the Mortgage
Loans (other than in accordance with the terms of, or upon satisfaction
of, the Mortgage Loans) or any release of the Mortgage Loan Borrower or
any guarantor;
(ix) any acceptance of substitute or additional collateral for
the Mortgage Loans (other than in accordance with the terms of the
Mortgage Loans);
(x) any waiver of a "due-on-sale" or "due-on-encumbrance"
clause;
(xi) any acceptance of an assumption agreement releasing the
Mortgage Loan Borrower from liability under the Mortgage Loans; and
(xii) the approval of any replacement Special Servicer or
sub-servicer for the Mortgage Loans (other than in connection with the
Trustee becoming the successor thereto pursuant to the terms of the
Securitization Servicing Agreement);
provided that, in the event that the Note A Holder or the Special Servicer
determines in accordance with the Servicing Standard that immediate action is
necessary to protect the interests of the Note A Holder and the Note B Holder
(as a collective whole), the Note A Holder or Special Servicer may take any such
action without waiting for the Controlling Holder's response; and provided,
further, that, upon the request of the Non-Controlling Holder during the
10-business day period referred to above, as each such Holder is identified to
the Note A Holder and the Servicers, each of the Controlling Holder, the Note A
Holder and the Servicers shall consult with the Non-Controlling Holder regarding
its views as to the proposed action (but may, in their sole discretion, reject
any advice or direction from the Non-Controlling Holder).
Upon reasonable request, the Note A Holder shall provide, or
cause the Special Servicer to provide, the Controlling Holder with any
information in the possession of the Note A Holder or the Special Servicer with
respect to such matters, including, without limitation, its reasons for
determining to take a proposed action.
The Note A Holder or the applicable Servicer shall notify the
Holders of any release or substitution of collateral for the Mortgage Loans even
if such release or substitution is in accordance with the Mortgage Loans.
Appraisal Reduction Amounts shall be allocated to reduce the
Note B Principal Balance and the Note A Principal Balance, in that order, up to
the outstanding amount thereof, for purposes of determining the identity of the
Controlling Holder. The Special Servicer shall give written notice to the
Controlling Holder of any Appraisal Reduction Amount calculated with respect to
the Mortgage Loans and any allocation thereof to reduce the Principal Balance of
such Holder.
The term "Controlling Holder" shall mean as of any date of
determination, (i) the Note B Holder, unless a Control Appraisal Event has
occurred and is continuing or the Note B
M-2-23
Holder is the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party,
or (ii) if a Control Appraisal Event has occurred and is continuing or the Note
B Holder is the Mortgage Loan Borrower or a Mortgage Loan Borrower Related
Party, the Note A Holder. As of the Closing Date, the Controlling Holder will be
the Note B Holder; provided, that if a Control Appraisal Event occurs, and Loan
A subsequently ceases to be specially serviced (or, if Loan A is part of a
Securitization Trust and subsequently ceases to be a "Required Appraisal Loan"
within the meaning of the Securitization Servicing Agreement), then the
outstanding Note B Principal Balance shall be restored to the extent of
reductions in Appraisal Reduction Amounts indicated by a subsequent Appraisal.
The term "Non-Controlling Holder" shall mean each Holder other than the
Controlling Holder. The Controlling Holder shall have the right at any time
within six months of the date of the receipt of any Appraisal to require that
the Special Servicer obtain a new Appraisal of the Mortgaged Property in
accordance with MAI standards, at the expense of the Controlling Holder. Upon
receipt of such Appraisal the Special Servicer shall deliver a copy thereof to
the Controlling Holder and such other parties as are specified in the Servicing
Agreement. Promptly following the receipt of, and based upon, such Appraisal,
the Special Servicer shall redetermine and report to the Controlling Holder and
such other parties as are specified in the Servicing Agreement the then
applicable Appraisal Reduction Amount, if any, with respect to the Mortgage
Loans (calculated as if it was a single Mortgage Loan).
(b) Notwithstanding anything herein to the contrary, no
advice, direction or objection from or by the Controlling Holder, as
contemplated by Section 18(a), may (and the Note A Holder and the Special
Servicer shall ignore and act without regard to any such advice, direction or
objection that the Note A Holder or the Special Servicer has determined, in its
reasonable, good faith judgment, will) require or cause the Note A Holder or the
Special Servicer to violate any provision of this Agreement, or the applicable
Servicing Agreement, including the Special Servicer's obligation to act in
accordance with the Servicing Standard, act in a manner that is not in the best
economic interests of the Note A Holder and the Note B Holder (as a collective
whole, i.e., as if a single Person held both Mortgage Loans), violate any other
provisions of the applicable Servicing Agreement, expand the scope of the
Servicer's responsibilities under the Servicing Agreement, cause adverse tax
consequences for the Note A Holder, or cause the arrangement evidenced hereby
not to be treated as a "grantor trust" for Federal income tax purposes.
(c) The Controlling Holder will have no liability to the other
party for any action taken, or for refraining from the taking of any action, in
good faith pursuant to this Agreement, or for errors in judgment, even if same
is adverse to the interest of the other party; provided, however, that the
Controlling Holder will not be protected against any liability which would
otherwise be imposed for losses actually suffered due to the gross negligence,
willful misconduct or breach of this Agreement on the part of the Controlling
Holder in the performance of duties or by reason of grossly negligent disregard
of obligations or duties.
(d) Subject to the terms of the applicable Servicing
Agreement, the Controlling Holder may designate, in writing, a Controlling Class
Representative or other representative to exercise its rights and powers under
this Section 18 or otherwise under this Agreement (copies of such writing to be
delivered to each of the other parties hereto). Such designation shall remain in
effect until it is revoked by the Controlling Holder by a writing delivered to
each of the other parties hereto.
M-2-24
(e) Subject to the terms of the applicable Servicing
Agreement, the Non-Controlling Holders shall be entitled to receive, upon
request made to any party hereto, a copy of any notice or report required to be
delivered (upon request or otherwise) by such party to the Controlling Holder.
Any such party shall be permitted to require payment of a sum sufficient to
cover the reasonable costs and expenses of providing such copies.
(f) Subject to the terms of the applicable Servicing
Agreement, if the Mortgage Loan Borrower shall default with respect to any of
its obligations under the Mortgage Loan Documents, the Controlling Holder shall
have the right to cure such default, within a period of time which is 5 days
more than the applicable cure period given to the Mortgage Loan Borrower under
the Mortgage Loan Documents, at its own expense and any amounts advanced on
behalf of the Mortgage Loan Borrower in connection with the exercise of such
cure rights shall be reimbursable pursuant to Section 4. The Controlling Holder
shall no longer have this right to cure such default after the Mortgage Loan
Borrower shall have three (3) monetary defaults in succession or ten (10)
monetary defaults during the term of the Mortgage Loans.
(g) If Note A is not an asset of the trust fund created
pursuant to the Securitization Servicing Agreement, the Controlling Holder may
at any time and from time to time replace any existing Special Servicer with
respect to the Mortgage Loan with any other person that constitutes a qualified
servicing institution capable of making representations, warranties, and
covenants set forth in such Servicing Agreement. The Controlling Holder shall so
designate a person to serve as replacement Special Servicer by delivering to the
other Holders, the Master Servicer and the existing Special Servicer a written
notice stating such designation and by satisfying the other conditions required
under the Servicing Agreement; provided, that the Note A Holder (if it is not
the Controlling Holder) shall have the right to approve such replacement Special
Servicer if such replacement Special Servicer is not on S&P's list of approved
Special Servicers. The Controlling Holder shall promptly pay any expenses
incurred by the Note A Holder in connection with such replacement. The
Controlling Holder shall notify the other parties hereto of any termination of
the Special Servicer and appointment of a new Special Servicer in accordance
with this Section 18. If the Controlling Holder has not appointed a Special
Servicer with respect to the Mortgage Loans, then the Special Servicer
designated in the Servicing Agreement shall be the Special Servicer.
(h) Upon determining that a Servicing Transfer Event has
occurred with respect to the Mortgage Loans, the Servicer shall promptly notify
each Holder of the Mortgage Loans (and the Note A Holder shall direct the
Servicer in the Servicing Agreement to deliver such notice).
19. Sale of the Note B. The initial Note B Holder (and any
subsequent Note B Holder) agrees that it will not sell, assign, transfer,
pledge, syndicate, sell, hypothecate, contribute, encumber or otherwise dispose
of all or any portion of the Note B (a "Transfer") without the Note A Holder's
prior written consent, which consent shall not be unreason-ably withheld,
conditioned or delayed, provided that, (a) the Note B Holder shall have the
right to Transfer the Note B, or any portion thereof, to a Qualified
Institutional Lender, without obtaining the Note A Holder's prior written
consent, provided, that prior to the transfer the Note A Holder is provided with
(i) a representation from the transferee in the Assignment and Assumption
Agreement certifying that such transferee is a Qualified Institutional Lender
and (ii) a copy of
M-2-25
the Assignment and Assumption Agreement referred to in the next sentence below
and (b) if the Note B Holder wants to Transfer the Note B, or any portion
thereof, to an entity that is not a Qualified Institutional Lender, it must
first obtain consent of the Note A Holder, which, for as long as the Note A is
held in a Securitization Trust, will be conditioned upon receipt by the Note A
Holder of a confirmation in writing from each Rating Agency that such Transfer
will not result in a qualification, downgrade or withdrawal of its then current
rating of the certificates issued pursuant to the related Securitization.
Notwithstanding the foregoing, both prior to and from and after the
Securitization Date, (a) without the Note A Holder's prior consent, which will
be given in the Note A Holder's sole discretion, the Note B Holder shall not
Transfer all or any portion of the Note B to the Mortgage Loan Borrower or an
Affiliate thereof, and any such Transfer shall be void ab initio and (b) in
connection with any Transfer of the Note B, a transferee shall execute an
assignment and assumption agreement whereby such transferee assumes all of the
obligations of the Note B Holder hereunder with respect to Note B, from and
after the date of such assignment. The Note B Holder agrees it will pay the
expenses of the Note A Holder (including all expenses of the Master Servicer,
the Special Servicer and the Trustee) and all expenses relating to the written
confirmation from the Rating Agencies in connection with such Transfer.
20. Intentionally Omitted.
21. No Pledge or Loan. This Agreement shall not be deemed to
represent a pledge of any interest in the Mortgage Loans by the Note A Holder to
the Note B Holder, or a loan from the Note B Holder to the Note A Holder. Except
as otherwise provided in this Agreement and the Servicing Agreement, the Note B
Holder shall have no interest in any property taken as security for the Mortgage
Loans, provided, however, that if any such property or the proceeds of any sale,
lease or other disposition thereof shall be applied in reduction of the Mortgage
Loan Principal Balance, then the Note B Holder shall be entitled to receive its
share of such application in accordance with the terms of this Agreement.
22. 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 HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
23. Modifications. This Agreement shall not be modified,
cancelled or terminated except by an instrument in writing signed by the parties
hereto (other than as set forth in Section 5(b) hereof). Additionally, for so
long as Note A is contained in a Securitization Trust, 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.
24. 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
M-2-26
assigns. Except as provided herein, none of the provisions of this Agreement
shall be for the benefit of or enforceable by any Person not a party hereto,
except that each Servicer shall be a third party beneficiary with respect to
Sections 2, 3, 4, 6 and 19. The Note A Holder may assign or delegate its rights
or obligations under this Agreement. Upon any such assignment, the assignee
shall be entitled to all rights and benefits of the Note A Holder hereunder,
including, without limitation, the right to make further assignments and grant
additional participations. Subject to Section 19, the Note B Holder may at any
time or from time to time grant to others assignments of or participations in
Note B or assign or delegate its rights or obligations under this Agreement.
Upon any such assignment, the assignee shall be entitled to all rights and
benefits of the Note B Holder hereunder.
25. Counterparts. This Agreement may be executed in any number
of counterparts and all of such counterparts shall together constitute one and
the same instrument.
26. 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.
27. 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.
28. Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable laws, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
29. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter contained
in this Agreement and supersedes all prior agreements, understandings and
negotiations between the parties.
30. Bankruptcy. The Note B Holder hereby covenants and agrees
that only the Note A Holder, and not the Note B Holder, has the right to
institute, file, commence, acquiesce, petition under Bankruptcy Code Section 303
or otherwise or join any Person in any such petition or otherwise invoke or
cause any other Person to invoke an Insolvency Proceeding with respect to or
against Mortgage Loan Borrower or seek to appoint a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official with
respect to the Mortgage Loan Borrower or all or any part of its property or
assets or ordering the winding-up or liquidation of the affairs of the Mortgage
Loan Borrower. The Note B Holder further agrees that only the Note A Holder, and
not the Note B Holder, can make any election, give any consent, commence any
action or
M-2-27
file any motion, claim, obligation, notice or application or take any other
action in any case by or against the Mortgage Loan Borrower under the Bankruptcy
Code or in any other Insolvency Proceeding. The Note B Holder hereby appoints
the Note A Holder as its agent, and grants to the Note A Holder an irrevocable
power of attorney coupled with an interest, and its proxy, for the purpose of
exercising any and all rights and taking any and all actions available to the
Note B Holder in connection with any case by or against the Mortgage Loan
Borrower under the Bankruptcy Code or in any other Insolvency Proceeding,
including without limitation, the right to file and/or prosecute any claim, vote
to accept or reject a plan, to make any election under Section 1111(b) of the
Bankruptcy Code with respect to the Mortgage Loans, and to file a motion to
modify, lift or terminate the automatic stay with respect to the Mortgage Loans.
The Note B Holder hereby agrees that, upon the request of the Note A Holder, the
Note B Holder shall execute, acknowledge and deliver to the Note A Holder all
and every such further deeds, conveyances and instruments as the Note A Holder
may reasonably request for the better assuring and evidencing of the foregoing
appointment and grant.
31. Interim Servicing; Rights of Note B Holder. The Note A
Holder and the Note B Holder agree that until a Securitization and the execution
and delivery of a Securitization Servicing Agreement in connection therewith,
the Mortgage Loans will be serviced by Prudential Asset Resources, Inc.,
pursuant to the terms of the Interim Servicing Agreement, provided that in
addition to the rights set forth herein and in the Interim Servicing Agreement
but only so long as the Mortgage Loans are not being serviced pursuant to
Securitization Servicing Agreement, the Note B Holder shall have, (i) the right
to make a cure advance upon receiving notice of foreclosure, (ii) access to the
documents and records of the Servicer as they relate to the Mortgage Loan and
(iii) the right to direct the Special Servicer to enter into a modification
meeting the requirements of the Interim Servicing Agreement upon an Event of
Default.
[Signatures on following pages]
M-2-28
IN WITNESS WHEREOF, the Initial Note A Holder and Note B
Holder have caused this Agreement to be duly executed as of the day and year
first above written.
Prudential Mortgage Capital Funding, LLC,
By:
--------------------------------------
Name:
Title:
Prudential Mortgage Capital Funding, LLC,
By:
--------------------------------------
Name:
Title:
M-2-29
EXHIBIT A
---------
MORTGAGE LOAN SCHEDULE - [ ] (page 1 of 2)
A. Description of Mortgage Loans
-------------------------------------------- ------------------------------
Mortgage Loan Borrower: [ ]
-------------------------------------------- ------------------------------
Date of Mortgage Loans: [ ]
-------------------------------------------- ------------------------------
Initial Principal Amount of Mortgage Loans: $[ ]
-------------------------------------------- ------------------------------
Principal Balance of Mortgage Loans as of $[ ]
[____________], 2002:
-------------------------------------------- ------------------------------
Location of Mortgaged Property: [ ]
-------------------------------------------- ------------------------------
Current Use of Mortgaged Property: [ ]
-------------------------------------------- ------------------------------
Maturity Date [ ]
-------------------------------------------- ------------------------------
M-2-30
B. Description of Notes ([ ])
------------------------------------- -------------------------------------
Initial Note A Principal Balance: $[ ]
------------------------------------- -------------------------------------
Initial Note B Principal Balance: $[ ]
------------------------------------- -------------------------------------
Note A Interest Rate: [ ]%
------------------------------------- -------------------------------------
Note B Interest Rate: [ ]%
------------------------------------- -------------------------------------
M-2-31
EXHIBIT B
---------
Initial Note A Holder:
---------------------
Prudential Mortgage Capital Funding, LLC
Notice Address:
--------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Center Four, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Note B Holder:
-------------
Prudential Mortgage Capital Funding, LLC
Notice Address:
--------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Center Four, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
M-2-32
EXHIBIT N
FORM OF FINAL CERTIFICATION OF TRUSTEE
[Date]
[PARTIES TO POOLING AND SERVICING AGREEMENT]
[POOLED MORTGAGE LOAN SELLERS]
[B-NOTE HOLDERS]
[CONTROLLING CLASS REPRESENTATIVE]
Re: Prudential Securities Secured Financing Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2003-PWR1
Ladies and Gentlemen:
In accordance with Section 2.02(b) of that certain Pooling and
Servicing Agreement dated as of March 1, 2003 (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) (except with respect to the
1290 Avenue of the Americas Pooled Mortgage Loan) 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 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 and Servicing 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.
N-1
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------
Name:
Title:
N-2
EXHIBIT O-1
FORM OF BALLSTON COMMON B-NOTE
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 March 1, 2003, among Prudential Securities Secured
Financing Corporation, as Depositor, Prudential Asset Resources, Inc., as a
Master Servicer, ▇▇▇▇▇ Fargo Bank, National Association, as a Master Servicer,
ARCap Servicing, Inc., as Special Servicer, LaSalle Bank National Association,
as Trustee, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Certificate Administrator and
as Tax Administrator, ABN AMRO Bank N.V., as Fiscal Agent, and Prudential
Mortgage Capital Funding, LLC, as Ballston Common B-Note Holder and as
Renaissance B-Note Holder.
WHEREAS, pursuant to the terms and conditions of Section 3.27(b) of the
Pooling and Servicing Agreement and Section 19 of the Ballston Common Co-Lender
Agreement, the Assignor is entitled to transfer its interest in the Ballston
Common 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
Ballston Common B-Note Holder the most recent endorsee of the Ballston Common
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 Ballston Common 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
Ballston Common 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 Ballston Common
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 Ballston Common 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
O-1-1
Ballston Common Co-Lender Agreement and the Pooling and Servicing Agreement, in
each case subject to the provisions of this Agreement and subject to all the
terms, covenants, conditions and provisions of the Ballston Common 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 Ballston Common 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.
O-1-2
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:
O-1-3
EXHIBIT O-2
FORM OF RENAISSANCE 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 March 1, 2003, among Prudential Securities Secured
Financing Corporation, as Depositor, Prudential Asset Resources, Inc., as a
Master Servicer, ▇▇▇▇▇ Fargo Bank, National Association, as a Master Servicer,
ARCap Servicing, Inc., as Special Servicer, LaSalle Bank National Association,
as Trustee, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Certificate Administrator and
as Tax Administrator, ABN AMRO Bank N.V., as Fiscal Agent, and Prudential
Mortgage Capital Funding, LLC, as Ballston Common B-Note Holder and as
Renaissance B-Note Holder.
WHEREAS, pursuant to the terms and conditions of Section 3.29(b) of the
Pooling and Servicing Agreement and Section 19 of the Renaissance Co-Lender
Agreement, the Assignor is entitled to transfer its interest in the Renaissance
B-Note Loan,
WHEREAS, subject to the terms and conditions of Section 3.29(b) of the
Pooling and Servicing Agreement, the parties thereto shall recognize as the
Renaissance B-Note Holder the most recent endorsee of the Renaissance B-Note,
WHEREAS, in satisfaction of the condition stipulated in Section
3.29(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 Renaissance 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
Renaissance 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 Renaissance 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 Renaissance 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
Renaissance Co-Lender Agreement and the Pooling and Servicing Agreement, in each
case subject to the provisions of this Agreement and subject to all the terms,
covenants, conditions
O-2-1
and provisions of the Renaissance 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
Renaissance 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.
O-2-2
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:
▇-▇-▇
▇▇▇▇▇▇▇▇ ▇-▇
SCHEDULE OF PMCF POOLED MORTGAGE LOANS
SELLER CUT-OFF
LOAN ORIGINAL DATE
ID NUMBER PROPERTY NAME ADDRESS CITY STATE ZIP CODE BALANCE BALANCE
3 6104760 Ballston Common Mall North Glebe Rd at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 49888643.9 49888643.9
▇▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 3815 - ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 30000000 27927666
▇▇▇▇ ▇▇▇▇. & ▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇ ▇▇▇▇▇▇▇ Renaissance Pere ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 25000000 25000000
Marquette Hotel
12 6104791 Mansions at Technology ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 19000000 19000000
Park Phase I
17 6104671 Pal-Med Medical Office ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 16325000 16290228.1
Center
19 6104809 North Ranch Gateway 30805 - 30895 Thousand ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 12750000 12721195.4
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ Twin Towers ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 11725000 11725000
23 6104697 Overlook at Stonemill ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 10700000 10654180.5
27 6104794 ▇'▇▇▇▇▇▇▇ Square Various Various Various Various 9000000 9000000
Shopping Center and
Gateway Center
27.1 6104794a ▇'▇▇▇▇▇▇▇ Square ▇▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7026315.8 7026315.8
Shopping Center
27.2 6104794b Gateway Center ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1973684.2 1973684.2
32 6104857 ▇▇▇▇▇▇▇ Center 1650-1720 ▇▇▇▇▇▇▇ Muskegon MI 49445 8000000 7989422.93
Boulevard
33 6104702 ▇▇▇▇▇▇ ▇▇▇▇▇ Building ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7900000 7877025.89
36 6104764 ▇▇▇▇▇▇ Pointe ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7700000 7680933.02
Apartments
39 6104721 Timberline Apartments ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7500000 7463590.45
41 6104730 Arcadia Shopping Center ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6750000 6730632.46
44 6104736 Hidden Lakes ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6500000 6491219.76
Apartments II
47 6104803 Fifth Avenue Office ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6200000 6186663.99
Building
50 6104823 ▇▇▇▇▇ of Brookhollow Various Various VariousVarious 6000000 5985738.79
and ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇.▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4378378.4 4367971.5
50.2 6104823b Terrace House ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1621621.6 1617767.2
52 6104829 Brick Kiln Office ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5500000 5500000
Drake Blvd
53 6104802 1455 & 1515 E. 1455 & ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5500000 5482236.63
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ Flamingo ▇▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5360000 5348545.93
Shopping Center Road
58 6104127 Oakwood Apartments ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4800000 4789641.54
59 6104797 Price ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇/▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4600000 4590121.7
61 6104783 University Heights ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4400000 4389246.43
Business Park
62 6104774 Whitney Ranch Business ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4350000 4332889.96
Park Street
MONTHLY ORIGINAL STATED
MONTHLY DEBT INTEREST ARD MATURITY TERM TO REMAINING TERM ORIGINAL REMAINING
DEBT SERVICE MORTGAGE ACCRUAL LOAN DATE OR MATURITY OR TO MATURITY OR AMORTIZATION AMORTIZATION
ID SERVICE AFTER IO RATE BASIS (Y/N) ARD ARD (MOS.) ARD (MOS.) TERM (MOS.) TERM (MOS.)
3 294769.8137 0.058453 Actual/360 No 41275 118 118 358 358
6 159444.16 0.0553 Actual/360 Yes 41275 120 118 360 358
8 167865.69 0.0644 Actual/360 No 41334 120 120 300 300
12 92,627.20 112563.05 0.0577 Actual/360 No 41275 120 118 348 348
17 98823.23 0.0609 Actual/360 No 41275 120 118 360 358
19 74243.63 0.0573 Actual/360 Yes 41275 120 118 360 358
20 69245.44 0.0586 Actual/360 No 41334 120 120 360 360
23 68407.18 0.0661 Actual/360 No 41183 120 115 360 355
27 53267.16 0.0588 Actual/360 No 41334 120 120 360 360
27.1
27.2
32 48221.51 0.0605 Actual/360 Yes 41306 120 119 360 359
33 48180.18 0.0616 Actual/360 No 41244 120 117 360 357
36 42138.95 0.0517 Actual/360 No 39448 60 58 360 358
39 44966.29 0.06 Actual/360 No 41183 120 115 360 355
41 41473.15 0.0623 Actual/360 Yes 41244 120 117 360 357
44 38304.68 0.0584 Actual/360 No 41306 120 119 360 359
47 37291.8 0.0603 Actual/360 No 41275 120 118 360 358
50 33766.79 0.0542 Actual/360 No 41275 120 118 360 358
50.1
50.2
52 32622.51 0.059 Actual/360 No 41334 120 120 360 360
53 34104.06 0.056 Actual/360 No 41275 120 118 300 298
55 32377.53 0.0607 Actual/360 No 41275 120 118 360 358
58 28809.29 0.0601 Actual/360 No 41275 120 118 360 358
59 27697.73 0.0604 Actual/360 No 41275 120 118 360 358
61 24296.96 0.0525 Actual/360 No 39448 60 58 360 358
62 26360.77 0.061 Actual/360 No 41214 120 116 360 356
S-I-A-1
SELLER CUT-OFF
LOAN ORIGINAL DATE
ID NUMBER PROPERTY NAME ADDRESS CITY STATE ZIP CODE BALANCE BALANCE
63 6103988 ▇▇▇▇▇▇▇ Parkway ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4300000 4290705.36
Industrial
67 6104807 Del Ray Office Building ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4000000 3994700.77
69 6104813 Island Breeze 1321-1325 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3900000 3891029
Apartments Avenue
75 6104737 Park Place Apartments ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3500000 3489505.06
79 6104870 Amberwood Apartments ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 2990000 2985804.65
92 6104768 Walgreens - Smyrna ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2300000 2292489.59
98 6104785 Valley Medical Center ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1600000 1593202.39
MONTHLY ORIGINAL STATED
MONTHLY DEBT INTEREST ARD MATURITY TERM TO REMAINING TERM ORIGINAL REMAINING
DEBT SERVICE MORTGAGE ACCRUAL LOAN DATE OR MATURITY OR TO MATURITY OR AMORTIZATION AMORTIZATION
ID SERVICE AFTER IO RATE BASIS (Y/N) ARD ARD (MOS.) ARD (MOS.) TERM (MOS.) TERM (MOS.)
63 25780.67 0.06 Actual/360 No 41275 120 118 360 358
67 24059.23 0.0603 Actual/360 No 41306 120 119 360 359
69 22438.29 0.0562 Actual/360 No 41275 120 118 360 358
75 20984.27 0.06 Actual/360 No 41244 120 117 360 357
79 16939.39 0.0548 Actual/360 No 40210 84 83 360 359
92 13131.39 0.0555 Actual/360 Yes 41244 120 117 360 357
98 10456.03 0.0615 Actual/360 No 41244 120 117 300 297
(1) The Ballston Common Mall Borrower posted a LOC in the amount of $1,100,000
in lieu of monthly leasing reserves.
(2) The North Ranch Mall Borrower posted a LOC in the amount of $225,000 in lieu
of monthly tax and insurance reserves, and a LOC in the amount of $185,000
as an environmental reserve.
(3) The Renaissance Pere Marquette Hotel Borrower posted a LOC in the amount of
$130,000 in lieu of monthly insurance reserves.
(4) The ▇'▇▇▇▇▇▇▇ Square Shopping Center and Gateway Center Borrower posted a
LOC in the amount of $475,000 as a rent reserve.
(5) The Price Chopper Plaza Borrower posted a LOC in the amount of $73,055 in
lieu of monthly tax reserves, a LOC in the amount of $12,000 in lieu of
monthly insurance reserves, a LOC in the amount of $19,008 in lieu of
monthly replacement reserves, and a LOC in the amount of $62,500 in lieu of
monthly leasing reserves.
S-I-A-2
PMCF CONT.
CROSSED
WITH MORTGAGE LETTER LETTER OF
OTHER CROSSED PREPAYMENT PROVISIONS LOAN ADMINISTRATIVE DUE GRACE OF CREDIT
ID LOANS LOAN ID (# OF PAYMENTS) INTEREST SELLER FEE RATE DATE PERIOD CREDIT DESCRIPTION
3 No NAP Lo(25)/Defeasance(89)/Open(4) Fee PMCF 0.000327 1 5 Yes (1)
6 No NAP Lo(27)/Defeasance(89)/Open(4) Fee PMCF 0.000727 1 5 Yes (2)
8 No NAP Lo(25)/Defeasance(91)/Open(4) Fee PMCF 0.000327 1 5 Yes (3)
12 No NAP Lo(27)/Defeasance(89)/Open(4) Fee PMCF 0.000727 1 5 No
17 No NAP Lo(27)/Defeasance(89)/Open(4) Leasehold PMCF 0.000327 1 5 No
19 No NAP Lo(27)/Defeasance(89)/Open(4) Fee PMCF 0.000327 1 5 No
20 No NAP Lo(25)/Defeasance(91)/Open(4) Fee PMCF 0.000827 1 5 No
23 No NAP Lo(30)/Defeasance(86)/Open(4) Fee PMCF 0.000327 1 5 No
27 No NAP Lo(25)/Defeasance(91)/Open(4) Various PMCF 0.000327 1 5 Yes (4)
27.1 Fee
27.2 Fee
32 No NAP Lo(26)/Defeasance(90)/Open(4) Fee PMCF 0.000827 1 5 No
33 No NAP Lo(28)/Defeasance(88)/Open(4) Fee PMCF 0.000827 1 5 No
36 No NAP Lo(27)/Defeasance(29)/Open(4) Fee PMCF 0.000827 1 15 No
39 No NAP Lo(30)/Defeasance(86)/Open(4) Fee PMCF 0.000327 1 5 No
41 No NAP Lo(28)/Defeasance(88)/Open(4) Fee PMCF 0.000327 1 5 No
44 No NAP Lo(26)/Defeasance(90)/Open(4) Fee PMCF 0.000827 1 5 No
47 No NAP Lo(27)/Defeasance(89)/Open(4) Fee PMCF 0.000827 1 5 No
50 No NAP Lo(27)/Defeasance(89)/Open(4) Various PMCF 0.000827 1 5 No
50.1 Fee
50.2 Fee
52 No NAP Lo(25)/Defeasance(91)/Open(4) Fee PMCF 0.000827 1 5 No
Lo(47)/Grtr1% Or
53 No NAP Ym(68)/Open(5) Fee PMCF 0.000327 1 5 No
55 No NAP Lo(27)/Defeasance(89)/Open(4) Fee PMCF 0.000827 1 5 No
58 No NAP Lo(27)/Defeasance(89)/Open(4) Fee PMCF 0.000827 1 5 No
59 No NAP Lo(27)/Defeasance(89)/Open(4) Fee PMCF 0.000627 1 5 Yes (5)
61 No NAP Lo(27)/Defeasance(29)/Open(4) Fee PMCF 0.000827 1 5 No
62 No NAP Lo(29)/Defeasance(87)/Open(4) Fee PMCF 0.000827 1 5 No
63 No NAP Lo(27)/Defeasance(89)/Open(4) Fee PMCF 0.000327 1 5 No
67 No NAP Lo(26)/Defeasance(90)/Open(4) Fee PMCF 0.000327 1 5 No
69 No NAP Lo(27)/Defeasance(89)/Open(4) Fee PMCF 0.000327 1 5 No
75 No NAP Lo(28)/Defeasance(88)/Open(4) Fee PMCF 0.000827 1 5 No
79 No NAP Lo(26)/Defeasance(54)/Open(4) Fee PMCF 0.000327 1 5 No
92 No NAP Lo(28)/Defeasance(88)/Open(4) Fee PMCF 0.000327 1 5 No
98 No NAP Lo(28)/Defeasance(88)/Open(4) Fee PMCF 0.000327 1 5 No
HOSPITALITY EXCESS
ID GUARANTOR/RECOURSE PROPERTY INITIAL MASTER SERVICER FEE RATE
3 No No Prudential Asset Resources, Inc. 0.020%
6 No No Prudential Asset Resources, Inc. 0.020%
Yes, ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Corporation has 0.020%
provided a $7,000,000 Stabilization
8 Guaranty Yes Prudential Asset Resources, Inc.
12 No No Prudential Asset Resources, Inc. 0.020%
17 No No Prudential Asset Resources, Inc. 0.020%
19 No No Prudential Asset Resources, Inc. 0.020%
20 No No Prudential Asset Resources, Inc. 0.020%
23 No No Prudential Asset Resources, Inc. 0.020%
27 No No Prudential Asset Resources, Inc. 0.020%
27.1
27.2
32 No No Prudential Asset Resources, Inc. 0.020%
33 No No Prudential Asset Resources, Inc. 0.020%
36 No No Prudential Asset Resources, Inc. 0.020%
39 No No Prudential Asset Resources, Inc. 0.020%
41 No No Prudential Asset Resources, Inc. 0.020%
44 No No Prudential Asset Resources, Inc. 0.020%
47 No No Prudential Asset Resources, Inc. 0.020%
50 No No Prudential Asset Resources, Inc. 0.020%
50.1
50.2
52 No No Prudential Asset Resources, Inc. 0.020%
53 No No Prudential Asset Resources, Inc. 0.020%
55 No No Prudential Asset Resources, Inc. 0.020%
58 No No Prudential Asset Resources, Inc. 0.020%
59 No No Prudential Asset Resources, Inc. 0.020%
61 No No Prudential Asset Resources, Inc. 0.020%
62 No No Prudential Asset Resources, Inc. 0.020%
63 No No Prudential Asset Resources, Inc. 0.020%
67 No No Prudential Asset Resources, Inc. 0.020%
69 No No Prudential Asset Resources, Inc. 0.020%
75 No No Prudential Asset Resources, Inc. 0.020%
79 No No Prudential Asset Resources, Inc. 0.020%
92 No No Prudential Asset Resources, Inc. 0.020%
98 No No Prudential Asset Resources, Inc. 0.020%
S-I-A-3
SCHEDULE I-B
SCHEDULE OF BSCMI POOLED MORTGAGE LOANS
SELLER CUT-OFF
LOAN ZIP ORIGINAL DATE
ID NUMBER PROPERTY NAME ADDRESS CITY STATE CODE BALANCE BALANCE
-------------------------------------------------------------------------------------------------------------------------
2 36022 Brandywine ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 52,000,000 51,773,030
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Portfolio 2 Various Various Various Various 41,190,000 41,190,000
5.1 36253 Walk at Highwoods ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 13,230,000 13,230,000
5.2 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 12,100,000 12,100,000
Beach
5.3 36253 Chesterfield Crossing Hull Street Rd. & Warbro Rd. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,380,000 6,380,000
5.4 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,535,000 4,535,000
5.5 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,475,000 2,475,000
5.6 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,470,000 2,470,000
7 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 27,250,000 27,165,796
9 36704 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 21,500,000 21,463,607
11 ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 20,500,000 20,473,470
18 36461 WESCO Portfolio Various Various Various Various 15,850,000 15,817,130
18.01 36461 Warrendale ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,170,000 5,159,278
18.02 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇-▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,060,000 2,055,728
18.03 36461 Honolulu ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,170,000 1,167,574
18.04 36461 Compton ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 980,000 977,968
18.05 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 850,000 848,237
18.06 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 760,000 758,424
18.07 36461 Salt Lake City ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 630,000 628,693
City
18.08 ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 460,000 459,046
18.09 36461 San Antonio ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 450,000 449,067
18.10 36461 New Haven ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ 440,000 439,088
18.11 36461 Akron ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 440,000 439,088
18.12 36461 Asheville ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 420,000 419,129
18.13 36461 Fridley ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 380,000 379,212
18.14 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 340,000 339,295
18.15 36461 Lincoln ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 300,000 299,378
18.16 36461 Butte ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 280,000 279,419
18.17 36461 Pueblo ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 230,000 229,523
18.18 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 200,000 199,585
Rock
18.19 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 160,000 159,668
18.20 36461 Johnstown ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 130,000 129,730
21 36208 ▇▇▇▇ Gardens Market ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 10,720,000 10,696,523
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,550,000 8,523,944
Shopping ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,300,000 8,280,207
30 35810 Tri-State Crossing ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,275,000 8,225,939
31 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,200,000 8,174,731
34 34942 Target Ground Lease ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,800,000 7,783,615
ORIGINAL STATED
MONTHLY TERM TO REMAINING
MONTHLY DEBT INTEREST ARD MATURITY MATURITY TERM TO ORIGINAL REMAINING
DEBT SERVICE MORTGAGE ACCRUAL LOAN DATE OR OR ARD MATURITY OR AMORTIZATION AMORTIZATION
ID SERVICE AFTER IO RATE BASIS (Y/N) ARD (MOS.) ARD (MOS.) TERM (MOS.) TERM (MOS.)
-------- -----------------------------------------------------------------------------------------------------------
2 296,883.62 5.5500% Actual/360 Yes 11/1/2009 84 80 360 356
5 188,787.50 5.5000% 30/360 No 10/1/2009 84 79 0 0
5.1
5.2
5.3
5.4
5.5
5.6
7 174,324.95 5.9250% Actual/360 No 1/1/2013 120 118 300 298
9 145,505.58 6.5250% Actual/360 No 2/1/2013 120 119 300 299
11 126,422.09 6.2650% Actual/360 No 2/1/2013 120 119 360 359
18 113,000.83 6.5000% Actual/360 No 2/1/2013 120 119 264 263
18.01
18.02
18.03
18.04
18.05
18.06
18.07
18.08
18.09
18.10
18.11
18.12
18.13
18.14
18.15
18.16
18.17
18.18
18.19
18.20
21 63,721.49 5.9200% Actual/360 No 1/1/2013 120 118 360 358
28 50,795.27 5.9150% Actual/360 No 12/1/2012 120 117 360 357
29 46,607.06 5.4000% Actual/360 No 1/1/2013 120 118 360 358
30 52,660.30 5.8700% Actual/360 No 11/1/2007 60 56 300 296
31 52,557.37 5.9450% Actual/360 No 1/1/2013 120 118 300 298
34 47,646.12 6.1750% Actual/360 No 1/1/2013 120 118 360 358
S-I-B-1
SELLER CUT-OFF
LOAN ZIP ORIGINAL DATE
ID NUMBER PROPERTY NAME ADDRESS CITY STATE CODE BALANCE BALANCE
-------------------------------------------------------------------------------------------------------------------------
38 36199 6006 Executive ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,600,000 7,553,973
▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,700,000 6,679,111
International Center
43 35795 Mockingbird ▇▇▇▇▇▇ ▇▇▇▇ -▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,700,000 6,671,029
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ The Shoppes @ Amberly 15305-15367 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,400,000 6,387,030
51 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,600,000 5,587,265
▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,200,000 5,189,384
60 35562 East Penn Shopping ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,500,000 4,482,965
▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,050,000 3,045,961
Apartments
78 36485 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,000,000 2,990,930
82 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,600,000 2,596,561
87 35675 Village Green ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,500,000 2,473,108
▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ One ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,475,000 2,461,960
Springs
91 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,300,000 2,295,033
95 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ II ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,900,000 1,891,287
96 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,800,000 1,796,334
ORIGINAL STATED
MONTHLY TERM TO REMAINING
MONTHLY DEBT INTEREST ARD MATURITY MATURITY TERM TO ORIGINAL REMAINING
DEBT SERVICE MORTGAGE ACCRUAL LOAN DATE OR OR ARD MATURITY OR AMORTIZATION AMORTIZATION
ID SERVICE AFTER IO RATE BASIS (Y/N) ARD (MOS.) ARD (MOS.) TERM (MOS.) TERM (MOS.)
-------- -----------------------------------------------------------------------------------------------------------
38 47,720.28 5.7300% Actual/360 Yes 11/1/2012 120 116 300 296
42 39,291.12 5.7950% Actual/360 No 12/1/2012 120 117 360 357
43 38,463.29 5.6000% Actual/360 No 11/1/2007 60 56 360 356
45 40,011.43 6.3950% Actual/360 No 1/1/2013 120 118 360 358
51 32,466.95 5.6900% Actual/360 No 1/1/2010 84 82 360 358
57 32,356.26 6.3500% Actual/360 No 1/1/2013 120 118 360 358
60 27,853.78 6.3000% Actual/360 No 11/1/2012 120 116 360 356
77 18,354.98 6.0350% Actual/360 No 2/1/2013 120 119 360 359
78 19,485.22 6.0850% Actual/360 No 1/1/2013 120 118 300 298
82 15,663.61 6.0450% Actual/360 No 2/1/2013 120 119 360 359
87 17,910.78 6.0000% Actual/360 No 10/1/2009 84 79 240 235
88 15,890.58 6.1350% Actual/360 No 11/1/2012 120 116 312 308
91 13,797.06 6.0050% Actual/360 No 1/1/2013 120 118 360 358
95 11,838.47 5.6500% Actual/360 No 12/1/2012 120 117 300 297
96 11,217.89 6.3650% Actual/360 No 1/1/2013 120 118 360 358
S-I-B-2
BSCMI CONT.
CROSSED
WITH MORTGAGE LETTER
OTHER CROSSED PREPAYMENT PROVISIONS (# OF LOAN ADMINISTRATIVE DUE GRACE OF
ID LOANS LOAN ID PAYMENTS) INTEREST SELLER FEE RATE DATE PERIOD CREDIT
------------------------------------------------------------------------------------------------------------------------
2 No NAP Lo(28)/Defeasance(54)/Open(2) Fee/Leasehold BSCMI 0.0527% 1 0 Yes
5 No NAP Lo(35)/Grtr1% Or Ym(47)/Open(2) Fee BSCMI 0.0527% 1 0 No
5.1 Fee
5.2 Fee
5.3 Fee
5.4 Fee
5.5 Fee
5.6 Fee
7 No NAP Lo(47)/Defeasance(72)/Open(1) Fee BSCMI 0.0727% 1 5 No
9 No NAP Lo(25)/Defeasance(91)/Open(4) Leasehold BSCMI 0.0527% 1 5 No
11 No NAP Lo(25)/Defeasance(93)/Open(2) Fee BSCMI 0.0927% 1 5 No
18 No NAP Lo(25)/Defeasance(93)/Open(2) Fee/Leasehold BSCMI 0.0827% 1 0 Optional
18.01 Fee
18.02 Fee
18.03 Leasehold
18.04 Fee
18.05 Fee
18.06 Fee
18.07 Fee
18.08 Fee
18.09 Fee
18.10 Fee
18.11 Fee
18.12 Fee
18.13 Fee
18.14 Fee
18.15 Fee
18.16 Fee
18.17 Fee
18.18 Fee
18.19 Fee
18.20 Fee
21 No NAP Lo(26)/Defeasance(92)/Open(2) Leasehold BSCMI 0.0527% 1 5 No
28 No NAP Lo(47)/Defeasance(72)/Open(1) Fee BSCMI 0.0727% 1 5 No
29 No NAP Lo(47)/Defeasance(72)/Open(1) Fee BSCMI 0.0527% 1 5 No
30 No NAP Lo(28)/Defeasance(30)/Open(2) Fee BSCMI 0.1227% 1 5 No
31 No NAP Lo(47)/Defeasance(72)/Open(1) Fee BSCMI 0.0927% 1 5 No
34 No NAP Lo(47)/Defeasance(72)/Open(1) Fee BSCMI 0.0527% 1 5 No
38 No NAP Lo(47)/Defeasance(72)/Open(1) Fee BSCMI 0.0927% 1 5 No
42 No NAP Lo(47)/Defeasance(72)/Open(1) Fee BSCMI 0.0527% 1 5 No
43 No NAP Grtr1% Or Ym(57)/Open(3) Fee BSCMI 0.0827% 1 5 Yes
45 No NAP Lo(47)/Defeasance(72)/Open(1) Fee BSCMI 0.0827% 1 5 No
51 No NAP Lo(47)/Defeasance(35)/Open(2) Fee BSCMI 0.0527% 1 5 No
57 No NAP Lo(26)/Defeasance(93)/Open(1) Leasehold BSCMI 0.0527% 1 5 No
60 No NAP Lo(28)/Defeasance(91)/Open(1) Fee BSCMI 0.0527% 1 5 No
EXCESS
GUARANTOR/ HOSPITALITY FEE
ID LETTER OF CREDIT DESCRIPTION RESOURCE PROPERTY INITIAL MASTER SERVICER RATE
----------------------------------------------------------------------------------------------------------------------------------
2 $392,000 No No ▇▇▇▇▇ Fargo Bank, National Association 0.020%
5 No No ▇▇▇▇▇ Fargo Bank, National Association 0.020%
5.1 No
5.2 No
5.3 No
5.4 No
5.5 No
5.6 No
7 No No ▇▇▇▇▇ Fargo Bank, National Association 0.030%
9 No No ▇▇▇▇▇ Fargo Bank, National Association 0.020%
11 No No ▇▇▇▇▇ Fargo Bank, National Association 0.030%
18 Tenant may replace cash escrow with LOC assigned No No ▇▇▇▇▇ Fargo Bank, National Association 0.000%
to the Trust
18.01 No
18.02 No
18.03 No
18.04 No
18.05 No
18.06 No
18.07 No
18.08 No
18.09 No
18.10 No
18.11 No
18.12 No
18.13 No
18.14 No
18.15 No
18.16 No
18.17 No
18.18 No
18.19 No
18.20 No
21 No No ▇▇▇▇▇ Fargo Bank, National Association 0.020%
28 No No ▇▇▇▇▇ Fargo Bank, National Association 0.000%
29 No No ▇▇▇▇▇ Fargo Bank, National Association 0.020%
30 No No ▇▇▇▇▇ Fargo Bank, National Association 0.000%
31 No No ▇▇▇▇▇ Fargo Bank, National Association 0.030%
34 No No ▇▇▇▇▇ Fargo Bank, National Association 0.020%
38 No No ▇▇▇▇▇ Fargo Bank, National Association 0.030%
42 No No ▇▇▇▇▇ Fargo Bank, National Association 0.020%
43 $150,000 No No ▇▇▇▇▇ Fargo Bank, National Association 0.000%
45 No No ▇▇▇▇▇ Fargo Bank, National Association 0.000%
51 No No ▇▇▇▇▇ Fargo Bank, National Association 0.020%
57 No No ▇▇▇▇▇ Fargo Bank, National Association 0.020%
60 No No ▇▇▇▇▇ Fargo Bank, National Association 0.020%
S-I-B-3
CROSSED
WITH MORTGAGE LETTER
OTHER CROSSED PREPAYMENT PROVISIONS (# OF LOAN ADMINISTRATIVE DUE GRACE OF
ID LOANS LOAN ID PAYMENTS) INTEREST SELLER FEE RATE DATE PERIOD CREDIT
------------------------------------------------------------------------------------------------------------------------
77 No NAP Lo(25)/Defeasance(94)/Open(1) Fee BSCMI 0.0927% 1 5 No
78 No NAP Lo(26)/Defeasance(93)/Open(1) Fee BSCMI 0.0527% 1 5 No
82 No NAP Lo(25)/Defeasance(94)/Open(1) Fee BSCMI 0.0927% 1 5 No
87 No NAP Lo(47)/Defeasance Fee BSCMI 0.0527% 1 5 No
(12)/1%(12)/0.5%(9)/Open(4)
88 No NAP Lo(28)/Defeasance(91)/Open(1) Fee BSCMI 0.0527% 1 5 No
91 No NAP Lo(47)/Grtr3% Or Ym(72)/Open(1) Fee BSCMI 0.0527% 1 5 No
95 No NAP Lo(47)/Defeasance(72)/Open(1) Fee BSCMI 0.0527% 1 5 No
96 No NAP Lo(26)/Defeasance(93)/Open(1) Fee BSCMI 0.0527% 1 5 No
EXCESS
GUARANTOR/ HOSPITALITY FEE
ID LETTER OF CREDIT DESCRIPTION RESOURCE PROPERTY INITIAL MASTER SERVICER RATE
----------------------------------------------------------------------------------------------------------------------------------
77 No No ▇▇▇▇▇ Fargo Bank, National Association 0.030%
78 No No ▇▇▇▇▇ Fargo Bank, National Association 0.020%
82 No No ▇▇▇▇▇ Fargo Bank, National Association 0.030%
87 No No ▇▇▇▇▇ Fargo Bank, National Association 0.020%
88 No No ▇▇▇▇▇ Fargo Bank, National Association 0.020%
91 No No ▇▇▇▇▇ Fargo Bank, National Association 0.020%
95 No No ▇▇▇▇▇ Fargo Bank, National Association 0.020%
96 No No ▇▇▇▇▇ Fargo Bank, National Association 0.020%
S-I-B-4
SCHEDULE 1-C
SCHEDULE OF WFB POOLED MORTGAGE LOANS
CUT-OFF
SELLER ZIP ORIGINAL DATE
ID LOAN NUMBER PROPERTY NAME ADDRESS CITY STATE CODE BALANCE BALANCE
1 510901115 1290 Avenue of The ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 80,000,000 80,000,000
Americas
4 510901047 The Furniture Plaza and ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 47,000,000 46,875,004
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Shopping 5710 - ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 21,000,000 20,955,051
Center Road
14 310901006 Hawthorne Gateway ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.; ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 17,500,000 17,461,423
14351 & ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
15 310901053 The Landings ▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 16,700,000 16,677,581
24 310900848 Laband Village ▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 9,600,000 9,570,660
25 310900978 Town Place Shopping Center ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 9,500,000 9,469,067
40 310901000 ▇▇▇▇▇▇ International ▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,800,000 6,786,475
Plaza
48 310900979 KC Plaza ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,200,000 6,186,310
54 310901003 Hometown Plaza ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,370,000 5,353,053
64 310900889 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,275,000 4,269,833
68 310900971 Weed Street Retail ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,000,000 3,991,577
70 310900973 Walgreens - Hopkins ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,800,000 3,791,582
72 310900898 Maple Office Park ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,600,000 3,593,012
73 310900888 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ 3,535,000 3,530,728
Francisco
76 310900972 Southgate Apartments 600, 610 & ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,280,000 3,272,553
80 310900867 Pine Ridge MHC ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,700,000 2,691,909
Township
81 310901013 Minikahda Mini Storage II ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,650,000 2,641,795
83 310900940 Walgreens - Memphis ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,580,000 2,570,196
84 310900909 Academy Sports ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,535,000 2,517,676
85 310900986 ▇▇▇▇▇▇ Road Self Storage ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,500,000 2,492,603
89 310900980 Terminal Building ▇▇▇ "▇" ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,360,000 2,353,257
93 310900930 Walgreens - Murfreesboro ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,250,000 2,241,450
94 310900984 Roo Commons ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,945,000 1,940,754
97 310900963 Emerald Lakes Center ▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,770,000 1,763,415
Hills
99 890901017 Tempo Plaza ▇▇▇▇ - ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,500,000 1,497,427
North
100 310900982 ▇▇▇▇▇▇ Street ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,000,000 997,044
STATED
ORIGINAL REMAINING
MONTHLY TERM TO TERM TO
MONTHLY DEBT INTEREST ARD MATURITY MATURITY MATURITY ORIGINAL REMAINING
DEBT SERVICE MORTGAGE ACCRUAL LOAN DATE OR OR ARD OR ARD AMORTIZATION AMORTIZATION
ID SERVICE AFTER IO RATE BASIS (Y/N) ARD (MOS.) (MOS.) TERM (MOS.) TERM (MOS.)
1 463,191.76 565,865.28 6.8527% Actual/360 No 1/7/2013 123 118 289 289
4 316,181.88 5.2300% Actual/360 No 2/1/2013 120 119 240 239
10 126,716.84 6.0600% Actual/360 No 1/1/2013 120 118 360 358
14 103,575.05 5.8800% Actual/360 No 1/1/2013 120 118 360 358
15 99,053.80 5.9000% Actual/360 No 2/1/2013 120 119 360 359
24 56,941.10 5.9000% Actual/360 No 12/1/2012 120 117 360 357
25 58,565.47 5.5400% Actual/360 No 1/1/2013 120 118 300 298
40 43,025.35 6.5100% Actual/360 No 1/1/2013 120 118 360 358
48 36,655.53 5.8700% Actual/360 No 1/1/2013 120 118 360 358
54 33,847.94 5.7700% Actual/360 No 1/1/2013 120 118 300 298
64 28,441.68 7.0000% Actual/360 No 2/1/2013 120 119 360 359
68 24,395.03 6.1600% Actual/360 No 1/1/2013 120 118 360 358
70 22,417.75 5.8500% Actual/360 No 1/1/2013 120 118 360 358
72 23,134.57 6.6600% Actual/360 No 1/1/2013 120 118 360 358
73 23,518.44 7.0000% Actual/360 No 2/1/2013 120 119 360 359
76 19,037.13 5.7000% Actual/360 No 1/1/2013 120 118 360 358
80 17,644.54 6.1500% Actual/360 No 1/1/2013 120 118 300 298
81 16,928.49 5.9100% Actual/360 No 1/1/2013 120 118 300 298
83 15,935.88 6.2800% Actual/360 No 11/1/2012 120 116 360 356
84 16,722.62 6.2500% Actual/360 No 10/1/2012 120 115 300 295
85 15,101.46 6.0700% Actual/360 No 12/1/2012 120 117 360 357
89 15,934.89 6.5000% Actual/360 No 1/1/2013 120 118 300 298
93 13,897.57 6.2800% Actual/360 No 11/1/2012 120 116 360 356
94 11,586.34 5.9400% Actual/360 No 1/1/2013 120 118 360 358
97 11,059.87 6.3900% Actual/360 No 11/1/2012 120 116 360 356
99 10,015.92 6.3800% Actual/360 No 2/1/2013 120 119 300 299
100 6,596.69 6.2500% Actual/360 No 1/1/2013 120 118 300 298
(1) Re-tenanting impounds (TI and LC) will be collected monthly in the amount
of $1,000 monthly ($12,000 annually). This impound will be capped and maintained
at 60 months (or $60,000). WFB will release impound at rate of $4 psf for all
new and renewing leases during the term of the loan. On or before July 31, 2012,
Borrower shall have deposited with WFB a TI/LC impound in the amount of $125,000
to cover the lease rollover expenses associated with the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Salon
lease expiration (6196 sf expiring 2/28/2013). Such impound will be accumulated
through (a) existing TI/LC impound balances on deposit with WFB, and (b)
implementation of a "springing" impound, 6 months prior to required impound due
date, for the impound of property cash flow after all required impounds and debt
service payments to WFB, in an amount calculated as the difference between
impound on hand at impound due date and $125,000. Borrower may elect to
substitute a Letter of Credit issued from a lender, and in a form, acceptable to
WFB in lieu of the "springing" impound
S-I-C-1
WFB CONT.
CROSSED
WITH MORTGAGE LETTER
OTHER CROSSED PREPAYMENT PROVISIONS LOAN ADMINISTRATIVE DUE GRACE OF
ID LOANS LOAN ID (# OF PAYMENTS) INTEREST SELLER FEE RATE DATE PERIOD CREDIT
1 No NAP Lo(29)/Defeasance(91)/Open(3) Fee WFB 0.0327% 7 0 No
4 No NAP Lo(25)/Defeasance(92)/Open(3) Fee WFB 0.0327% 1 0 No
10 No NAP Lo(35)/Defeasance(81)/Open(4) Fee WFB 0.0327% 1 5 No
14 No NAP Lo(35)/Defeasance(81)/Open(4) Fee WFB 0.0327% 1 5 No
15 No NAP Lo(36)/Defeasance(80)/Open(4) Fee WFB 0.0327% 1 5 No
24 No NAP Lo(35)/Defeasance(81)/Open(4) Fee WFB 0.0327% 1 5 No
25 No NAP Lo(35)/Flex(81)/Open(4) Fee WFB 0.0327% 1 5 No
40 No NAP Lo(35)/Defeasance(81)/Open(4) Fee WFB 0.0327% 1 5 Yes
48 No NAP Lo(26)/Defeasance(90)/Open(4) Fee WFB 0.0327% 1 5 No
54 No NAP Lo(26)/Defeasance(87)/Open(7) Fee WFB 0.0327% 1 5 No
64 No NAP Lo(35)/Defeasance(81)/Open(4) Fee WFB 0.0327% 1 5 No
68 No NAP Lo(35)/Defeasance(81)/Open(4) Fee WFB 0.0327% 1 5 Optional (1)
70 No NAP Lo(35)/Defeasance(81)/Open(4) Fee WFB 0.0327% 1 5 No
72 No NAP Lo(35)/Defeasance(81)/Open(4) Fee WFB 0.0327% 1 5 No
73 No NAP Lo(35)/Defeasance(81)/Open(4) Fee WFB 0.0527% 1 5 No
76 No NAP Lo(35)/Flex(81)/Open(4) Fee WFB 0.0527% 1 5 No
80 No NAP Lo(35)/Defeasance(81)/Open(4) Fee WFB 0.0527% 1 5 No
81 No NAP Lo(35)/Defeasance(81)/Open(4) Fee WFB 0.0527% 1 5 No
83 No NAP Lo(35)/Defeasance(81)/Open(4) Fee WFB 0.0527% 1 5 No
84 No NAP Lo(35)/Defeasance(81)/Open(4) Fee WFB 0.0527% 1 5 No
85 No NAP Lo(35)/Defeasance(81)/Open(4) Fee WFB 0.1027% 1 5 No
89 No NAP Lo(35)/Flex(81)/Open(4) Fee WFB 0.1027% 1 5 No
93 No NAP Lo(35)/Defeasance(81)/Open(4) Fee WFB 0.1027% 1 5 No
94 No NAP Lo(35)/Defeasance(81)/Open(4) Fee WFB 0.1027% 1 5 No
97 No NAP Lo(35)/Defeasance(81)/Open(4) Fee WFB 0.1027% 1 5 No
99 No NAP Lo(35)/Defeasance(81)/Open(4) Fee WFB 0.1227% 1 5 No
100 No NAP Lo(35)/Defeasance(81)/Open(4) Fee WFB 0.1527% 1 5 No
LETTER OF CREDIT GUARANTOR/ HOSPITALITY EXCESS
ID DESCRIPTION RECOURSE PROPERTY INITIAL MASTER SERVICER FEE RATE
1 No No ▇▇▇▇▇ Fargo Bank, National Association 0.000%
4 No No ▇▇▇▇▇ Fargo Bank, National Association 0.000%
10 No No ▇▇▇▇▇ Fargo Bank, National Association 0.000%
14 No No ▇▇▇▇▇ Fargo Bank, National Association 0.000%
15 No No ▇▇▇▇▇ Fargo Bank, National Association 0.000%
24 No No ▇▇▇▇▇ Fargo Bank, National Association 0.000%
25 No No ▇▇▇▇▇ Fargo Bank, National Association 0.000%
40 $300,000 for TI/LC No No ▇▇▇▇▇ Fargo Bank, National Association 0.000%
48 No No ▇▇▇▇▇ Fargo Bank, National Association 0.000%
54 No No ▇▇▇▇▇ Fargo Bank, National Association 0.000%
64 No No ▇▇▇▇▇ Fargo Bank, National Association 0.000%
68 ) No No ▇▇▇▇▇ Fargo Bank, National Association 0.000%
70 No No ▇▇▇▇▇ Fargo Bank, National Association 0.000%
72 No No ▇▇▇▇▇ Fargo Bank, National Association 0.000%
73 No No ▇▇▇▇▇ Fargo Bank, National Association 0.020%
76 No No ▇▇▇▇▇ Fargo Bank, National Association 0.020%
80 No No ▇▇▇▇▇ Fargo Bank, National Association 0.020%
81 No No ▇▇▇▇▇ Fargo Bank, National Association 0.020%
83 No No ▇▇▇▇▇ Fargo Bank, National Association 0.020%
84 No No ▇▇▇▇▇ Fargo Bank, National Association 0.020%
85 No No ▇▇▇▇▇ Fargo Bank, National Association 0.070%
89 No No ▇▇▇▇▇ Fargo Bank, National Association 0.070%
93 No No ▇▇▇▇▇ Fargo Bank, National Association 0.070%
94 No No ▇▇▇▇▇ Fargo Bank, National Association 0.070%
97 No No ▇▇▇▇▇ Fargo Bank, National Association 0.070%
99 No No ▇▇▇▇▇ Fargo Bank, National Association 0.010%
100 No No ▇▇▇▇▇ Fargo Bank, National Association 0.120%
S-I-C-2
SCHEDULE 1-D
SCHEDULE OF CIBC POOLED MORTGAGE LOANS
SELLER CUT-OFF
LOAN ORIGINAL DATE
ID NUMBER PROPERTY NAME ADDRESS CITY STATE ZIP CODE BALANCE BALANCE
-------------------------------------------------------------------------------------------------------------------------------
13 1.0 Promenade at ▇▇▇▇▇▇ Bay 26795-26911 ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 18,000,000 18,000,000
Springs
16 2.0 University Tower ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 16,350,000 16,314,135
22 3.0 Barrington Pointe & Various Various KY Various 10,700,000 10,685,680
Copperstone Pointe Portfolio
22.1 3.1 Barrington Pointe ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,300,000 8,288,892
22.2 3.2 Copperstone Pointe ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,400,000 2,396,788
26 4.0 WP ▇▇▇▇▇ Industrial Portfolio Various Various Various Various 9,200,000 9,163,882
26.1 4.1 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇- ▇▇ ▇▇▇▇▇ 4,700,000 4,681,549
Salem
26.2 4.2 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,800,000 3,785,082
26.3 4.3 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 700,000 697,252
35 6.0 ▇▇▇▇▇▇▇ Manufactured Housing Various Various NY Various 7,750,000 7,715,577
Community
35.1 6.1 Latham Manufactured Housing ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,400,000 1,393,782
Community
35.2 6.2 Saratoga West Manufactured ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,650,000 1,642,671
Housing Community Spa
35.3 6.3 Shady Acres Manufactured ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 700,000 696,891
Housing Community Spa
35.4 6.4 Stockade Manufactured Housing ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,000,000 3,982,233
Community Spa
37 7.0 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,600,000 7,590,150
46 8.0 14 & ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,200,000 6,188,691
Post Street Portfolio
46.1 8.1 14 & ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 14 & ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,636,000 4,627,544
46.2 8.2 ▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,564,000 1,561,147
49 10.0 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,000,000 6,000,000
56 11.0 Kash N' ▇▇▇▇▇ Portfolio Various Various FL Various 5,200,000 5,193,214
56.1 11.1 LaMadera Marketplace ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,050,000 2,047,325
56.2 11.2 Shoppes at Avon Park ▇▇▇▇-▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,550,000 1,547,977
North
56.3 11.3 Shoppes at Lake Placid 1503-1519 ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,600,000 1,597,912
South Placid
65 12.0 Colorado Marketplace ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,225,000 4,215,793
Colorado Boulevard
66 13.0 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 1222 -▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,150,000 4,140,762
71 15.0 FedEx Ground Facility ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,750,000 3,750,000
74 16.0 Mt. Ebo Business Center ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,500,000 3,495,437
86 17.0 ▇▇▇ City Centre ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ 2,500,000 2,492,353
90 18.0 Westwind Plaza ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,350,000 2,345,084
Road
ORIGINAL STATED
MONTHLY TERM TO REMAINING
MONTHLY DEBT INTEREST ARD MATURITY MATURITY TERM TO ORIGINAL REMAINING
DEBT SERVICE MORTGAGE ACCRUAL LOAN DATE OR ARD MATURITY OR AMORTIZATION AMORTIZATION
ID SERVICE AFTER IO RATE BASIS (Y/N) OR ARD (MOS.) ARD (MOS.) TERM (MOS.) TERM (MOS.)
------ ------------------------------------------------------------------------------------------------------------
13 106,649.42 5.8900% Actual/360 Yes 3/1/2013 120 120 360 360
16 97,082.46 5.9100% Actual/360 Yes 1/1/2013 120 118 360 358
22 63,671.15 5.9300% Actual/360 Yes 2/1/2013 120 119 360 359
22.1
22.2
26 55,810.96 6.1100% Actual/360 Yes 11/1/201 120 116 360 356
26.1
26.2
26.3
35 49,272.23 5.8600% Actual/360 Yes 12/1/201 120 117 300 297
35.1
35.2
35.3
35.4
37 46,794.51 6.2500% Actual/360 Yes 2/1/2013 120 119 360 359
46 38,892.28 5.7200% Actual/360 Yes 2/1/2013 120 119 300 299
46.1
46.2
49 36,592.54 6.1600% Actual/360 Yes 3/1/2013 120 120 360 360
56 31,780.93 6.1800% Actual/360 Yes 2/1/2013 120 119 360 359
56.1
56.2
56.3
65 25,195.35 5.9500% Actual/360 Yes 1/1/2013 120 118 360 358
66 24,403.13 5.8200% Actual/360 No 1/1/2013 120 118 360 358
71 24,161.30 6.0000% Actual/360 Yes 3/1/2013 120 120 300 300
74 21,413.71 6.1900% Actual/360 No 2/1/2013 120 119 360 359
86 16,107.54 6.0000% Actual/360 No 1/1/2013 120 118 300 298
90 14,393.02 6.2000% Actual/360 No 1/1/2013 120 118 360 358
S-I-D-1
CIBC CONT.
CROSSED
WITH MORTGAGE LETTER
OTHER CROSSED PREPAYMENT PROVISIONS (# OF LOAN ADMINISTRATIVE DUE GRACE OF
ID LOANS LOAN ID PAYMENTS) INTEREST SELLER FEE RATE DATE PERIOD CREDIT
-------------------------------------------------------------------------------------------------------------------------
13 No NAP Lo(24)/Defeasance(92)/Open(4) Fee CIBC 0.0427% 1 7 No
16 No NAP Lo(26)/Defeasance(90)/Open(4) Fee CIBC 0.0427% 1 15 No
22 No NAP Lo(25)/Defeasance(91)/Open(4) Fee CIBC 0.0427% 1 7 No
22.1 Fee
22.2 Fee
26 No NAP Lo(28)/Defeasance(89)/Open(3) Fee CIBC 0.0427% 1 7 No
26.1 Fee
26.2 Fee
26.3 Fee
35 No NAP Lo(27)/Defeasance(89)/Open(4) Fee CIBC 0.0427% 1 7 No
35.1 Fee
35.2 Fee
35.3 Fee
35.4 Fee
37 No NAP Lo(25)/Defeasance(91)/Open(4) Fee CIBC 0.0427% 1 7 No
46 No NAP Lo(25)/Defeasance(91)/Open(4) Fee CIBC 0.0427% 1 7 No
46.1 Fee
46.2 Fee
49 No NAP Lo(24)/Defeasance(92)/Open(4) Fee CIBC 0.0427% 1 7 No
56 No NAP Lo(25)/Defeasance(91)/Open(4) Fee CIBC 0.0427% 1 7 No
56.1 Fee
56.2 Fee
56.3 Fee
65 No NAP Lo(26)/Defeasance(90)/Open(4) Fee CIBC 0.0827% 1 7 No
66 No NAP Lo(26)/Defeasance(90)/Open(4) Fee CIBC 0.0427% 1 7 No
71 No NAP Lo(24)/Defeasance(92)/Open(4) Fee CIBC 0.0427% 1 7 No
74 No NAP Lo(25)/Defeasance(91)/Open(4) Fee CIBC 0.0427% 1 7 No
86 No NAP Lo(26)/Defeasance(90)/Open(4) Fee CIBC 0.0427% 1 7 No
90 No NAP Lo(26)/Defeasance(90)/Open(4) Fee CIBC 0.0927% 1 7 No
LETTER OF
CREDIT GUARANTOR/ HOSPITALITY EXCESS
ID DESCRIPTION RECOURSE PROPERTY INITIAL MASTER SERVICER FEE RATE
---------------------------------------------------------------------------------------------------
13 No No ▇▇▇▇▇ Fargo Bank, National Association 0.010%
16 No No ▇▇▇▇▇ Fargo Bank, National Association 0.010%
22 No No ▇▇▇▇▇ Fargo Bank, National Association 0.010%
22.1
22.2
26 No No ▇▇▇▇▇ Fargo Bank, National Association 0.010%
26.1
26.2
26.3
35 No No ▇▇▇▇▇ Fargo Bank, National Association 0.010%
35.1
35.2
35.3
35.4
37 No No ▇▇▇▇▇ Fargo Bank, National Association 0.010%
46 No No ▇▇▇▇▇ Fargo Bank, National Association 0.010%
46.1 No
46.2 No
49 No No ▇▇▇▇▇ Fargo Bank, National Association 0.010%
56 No No ▇▇▇▇▇ Fargo Bank, National Association 0.010%
56.1
56.2
56.3
65 No No ▇▇▇▇▇ Fargo Bank, National Association 0.000%
66 No No ▇▇▇▇▇ Fargo Bank, National Association 0.010%
71 No No ▇▇▇▇▇ Fargo Bank, National Association 0.010%
74 No No ▇▇▇▇▇ Fargo Bank, National Association 0.010%
86 No No ▇▇▇▇▇ Fargo Bank, National Association 0.010%
90 No No ▇▇▇▇▇ Fargo Bank, National Association 0.000%
S-I-D-2
SCHEDULE II
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
(UNDER SECTION 2.02(A))
PROJECT Deal LaSalle Loan ID Alt Borrower Property
------- ---- --------------- --- -------- --------
Code Loan ID
---- -------
PRU3PWR1 1010/600 600-0036-000 6104760 FC BALLSTON BALLSTON COMMON MALL
COMMON, LLC
PRU3PWR1 1010/600 600-0038-000 6104801 PERE MARQUETTE RENAISSANCE PERE
HOTEL PARTNERS, LLC MARQUETTE HOTEL
PRU3PWR1 1010/600 600-0067-000 510901115 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, L.P. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇/▇▇▇ 600-0067-000 510901115 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, L.P. 1290 AVENUE OF THE
L.P. AMERICAS
PROJECT OrgNoteAmt Note Document Cond Exception
------- ---------- ---- -------- ---- ---------
Date Code
---- ----
PRU3PWR1 $49,888,643.91 12/20/02 INTERCREDITOR DM ORIGINAL DOCUMENT
AGREEMENT REQUIRED
PRU3PWR1 $25,000,000.00 12/18/03 INTERCREDITOR DM ORIGINAL DOCUMENT
AGREEMENT REQUIRED
PRU3PWR1 $80,000,000.00 02/07/03 INTERCREDITOR DM ORIGINAL DOCUMENT
AGREEMENT REQUIRED
PRU3PWR1 $80,000,000.00 02/07/03 SERVICING DM ORIGINAL DOCUMENT
AGREEMENT REQUIRED
S-II-1
SCHEDULE III
SCHEDULE OF DESIGNATED SUB-SERVICERS
Cut-off Date Primary
Control Loan Principal Servicing
Number Number Loan / Property Name Originator Balance Rate Primary Servicer
--------- ------ -------------------------------------- ---------- ------------ --------- ----------------
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ 27,927,666 0.0400% PMCC
12 Mansions at Technology Park Phase I PMCF 19,000,000 0.0400% PMCC
20 Twin Towers PMCF 11,725,000 0.0500% PMCC
32 ▇▇▇▇▇▇▇ Center PMCF 7,989,423 0.0500% PMCC
33 ▇▇▇▇▇▇ ▇▇▇▇▇ Building PMCF 7,877,026 0.0500% PMCC
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 7,680,933 0.0500% PMCC
44 Hidden Lakes Apartments II PMCF 6,491,220 0.0500% PMCC
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ 6,186,664 0.0500% PMCC
50 ▇▇▇▇▇ of Brookhollow and Terrace House PMCF 5,985,739 0.0500% PMCC
52 Brick Kiln Office PMCF 5,500,000 0.0500% PMCC
55 Flamingo ▇▇▇▇▇ Shopping Center PMCF 5,348,546 0.0500% PMCC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 4,789,642 0.0500% PMCC
59 Price Chopper Plaza PMCF 4,590,122 0.0300% PMCC
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ 4,389,246 0.0500% PMCC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ 4,332,890 0.0500% PMCC
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 3,489,505 0.0500% PMCC
S-III-1
SCHEDULE IV
REFERENCE RATES
S-IV-1
INTEREST ACCRUAL PERIOD(1) REFERENCE RATE INTEREST ACCRUAL PERIOD(1) REFERENCE RATE
-------------------------- -------------- -------------------------- --------------
March 2003 6.08689% March 2007 6.09250%
April 2003 5.89721 April 2007 5.90310
May 2003 6.08709 May 2007 6.09277
June 2003 5.89742 June 2007 5.90338
July 2003 6.08729 July 2007 6.09305
August 2003 6.08738 August 2007 6.09309
September 2003 5.89773 September 2007 5.90363
October 2003 6.08759 October 2007 6.09316
November 2003 5.89794 November 2007 5.90823
December 2003 6.08779 December 2007 6.09776
January 2004 5.89815 January 2008 5.91888
February 2004 5.89845 February 2008 5.91921
March 2004 6.08811 March 2008 6.10864
April 2004 5.89849 April 2008 5.91902
May 2004 6.08833 May 2008 6.10871
June 2004 5.89872 June 2008 5.91911
July 2004 6.08855 July 2008 6.10878
August 2004 6.08866 August 2008 6.10882
September 2004 5.89907 September 2008 5.91926
October 2004 6.08888 October 2008 6.10890
November 2004 5.89930 November 2008 5.91936
December 2004 5.89942 December 2008 5.91940
January 2005 5.89954 January 2009 5.91945
February 2005 5.90026 February 2009 5.92043
March 2005 6.08947 March 2009 6.10906
April 2005 5.89991 April 2009 5.91959
May 2005 6.08970 May 2009 6.10914
June 2005 5.90016 June 2009 5.91969
July 2005 6.08994 July 2009 6.10921
August 2005 6.09006 August 2009 6.10925
September 2005 5.90053 September 2009 5.91984
October 2005 6.09030 October 2009 6.14499
November 2005 5.90079 November 2009 5.97556
December 2005 5.90092 December 2009 5.97567
January 2006 5.90104 January 2010 5.97828
February 2006 5.90183 February 2010 5.98149
March 2006 6.09093 March 2010 6.18088
April 2006 5.90145 April 2010 5.98065
May 2006 6.09118 May 2010 6.18112
June 2006 5.90171 June 2010 5.98088
July 2006 6.09144 July 2010 6.18137
August 2006 6.09156 August 2010 6.18149
September 2006 5.90211 September 2010 5.98124
October 2006 6.09182 October 2010 6.18174
November 2006 5.90239 November 2010 5.98149
December 2006 5.90253 December 2010 5.98161
January 2007 5.90267 January 2011 5.98173
February 2007 5.90351 February 2011 5.98302
S-IV-2
(1) Each interest accrual period relates to the distribution date in the
immediately following calendar month. For example, the March 2003
interest accrual period relates to the April 2003 distribution date.
S-IV-3
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 [__________] and
[___________] (without regard to any additional alphabetical designation).
S-V-1
EXHIBIT P
FORM OF DEFEASANCE CERTIFICATION
FOR ANY LOAN THAT IS NOT AMONG TEN (10) LARGEST LOANS IN POOL, WITH OUTSTANDING
BALANCE OF (A) $20,000,000 OR LESS, OR (B) LESS THAN 5% OF OUTSTANDING POOL
BALANCE, WHICHEVER IS LESS
To: Standard & Poor's Ratings Services
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Commercial Mortgage Surveillance
Fitch, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
From: [PAR] [WFB], in its capacity as a Master Servicer (a "Master Servicer")
under the Pooling and Servicing Agreement dated as of March 1, 2003
(the "Pooling and Servicing Agreement"), among the Master Servicer,
Prudential Securities Secured Financing Corporation as Depositor, [PAR]
[WFB] as a Master Servicer, ARCap Servicing, Inc. as Special Servicer,
▇▇▇▇▇ Fargo Bank Minnesota, N.A. as Certificate Administrator and as
Tax Administrator, LaSalle Bank National Association as Trustee, ABN
AMRO N.V. as Fiscal Agent and Prudential Mortgage Capital Funding, LLC,
as Ballston Common B-Note Holder and as Renaissance B-Note Holder.
Date: _________, 20___
Re: Prudential Securities Secured Financing Corporation
Commercial Mortgage Pass-Through Certificates, Series 2003-PWR1
Mortgage loan (the "Mortgage Loan") identified by loan number _____ on
the Mortgage Loan Schedule attached to the Pooling and Servicing
Agreement and heretofore secured by the Mortgaged Properties identified
on the Mortgage Loan Schedule by the following names:__________________
____________________
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement.
As Master Servicer under the Pooling and Servicing Agreement, we
hereby:
1. Notify you that the Borrower has consummated a
defeasance of the Mortgage Loan pursuant to the terms
of the Mortgage Loan, of the type checked below:
____ a full defeasance of the payments
scheduled to be due in respect of
the entire Principal Balance of the
Mortgage Loan; or
____ a partial defeasance of the payments
scheduled to be due in respect of a
portion of the Principal Balance of
the Mortgage Loan that represents
___% of the entire Principal Balance
of the Mortgage Loan and, under the
P-1
Mortgage, has an allocated loan
amount of $____________ or _______%
of the entire Principal Balance;
2. Certify that each of the following is true, subject
to those exceptions set forth with explanatory notes
on Exhibit A hereto, which exceptions the Master
Servicer has determined, consistent with the
Servicing Standard, will have no material adverse
effect on the Mortgage Loan or the defeasance
transaction:
a. The Mortgage Loan Documents permit the
defeasance, and the terms and conditions for
defeasance specified therein were satisfied
in all material respects in completing the
defeasance.
b. The defeasance was consummated on _________,
20__.
c. The defeasance collateral consists of
securities that (i) constitute "government
securities" as defined in Section 2(a)(16)
of the Investment Company Act of 1940 as
amended (15 U.S.C. 80A1), (ii) are listed as
"Qualified Investments for 'AAA' Financings"
under Paragraphs 1, 2 or 3 of "Cash Flow
Approach" in Standard & Poor's Public
Finance Criteria 2000, as amended to the
date of the defeasance, (iii) are rated
'AAA' by Standard & Poor's, (iv) if they
include a principal obligation, the
principal due at maturity cannot vary or
change, and (v) are not subject to
prepayment, call or early redemption. Such
securities have the characteristics set
forth below:
CUSIP RATE MAT PAY DATES ISSUED
-------------------------------
d. The Master Servicer received an opinion of
counsel (from counsel approved by Master
Servicer in accordance with the Servicing
Standard) that the defeasance will not
result in an Adverse REMIC Event.
e. The Master Servicer determined that the
defeasance collateral will be owned by an
entity (the "Defeasance Obligor") as to
which one of the statements checked below is
true:
____ the related Borrower was a
Single-Purpose Entity (as defined in
Standard & Poor's Structured Finance
Ratings Real Estate Finance
Criteria, as amended to the date of
the defeasance (the "S&P Criteria"))
as of the date of the defeasance,
and after the defeasance owns no
assets other than the defeasance
collateral and real property
securing Mortgage Loans included in
the pool.
____ the related Borrower designated a
Single-Purpose Entity (as defined in
the S&P Criteria) to own the
defeasance collateral; or
____ the Master Servicer designated a
Single-Purpose Entity (as defined in
the S&P Criteria) established for
the benefit of the Trust to own the
defeasance collateral.
P-2
f. The Master Servicer received a broker or
similar confirmation of the credit, or the
accountant's letter described below
contained statements that it reviewed a
broker or similar confirmation of the
credit, of the defeasance collateral to an
Eligible Account (as defined in the S&P
Criteria) in the name of the Defeasance
Obligor, which account is maintained as a
securities account by the Trustee acting as
a securities intermediary.
g. As securities intermediary, the Trustee is
obligated to make the scheduled payments on
the Mortgage Loan from the proceeds of the
defeasance collateral directly to the Master
Servicer's collection account in the amounts
and on the dates specified in the Mortgage
Loan Documents or, in a partial defeasance,
the portion of such scheduled payments
attributed to the allocated loan amount for
the real property defeased, increased by any
defeasance premium specified in the Mortgage
Loan Documents (the "Scheduled Payments").
h. The Master Servicer received from the
Borrower written confirmation from a firm of
independent certified public accountants,
who were approved by the Master Servicer in
accordance with the Servicing Standard,
stating that (i) revenues from principal and
interest payments made on the defeasance
collateral (without taking into account any
earnings on reinvestment of such revenues)
will be sufficient to timely pay each of the
Scheduled Payments after the defeasance
including the payment in full of the
Mortgage Loan (or the allocated portion
thereof in connection with a partial
defeasance) on its Maturity Date (or, in the
case of an ARD Mortgage Loan, on its
Anticipated Repayment Date), (ii) the
revenues received in any month from the
defeasance collateral will be applied to
make Scheduled Payments within four (4)
months after the date of receipt, and (iii)
interest income from the defeasance
collateral to the Defeasance Obligor in any
calendar or fiscal year will not exceed such
Defeasance Obligor's interest expense for
the Mortgage Loan (or the allocated portion
thereof in a partial defeasance) for such
year.
i. The Master Servicer received opinions from
counsel, who were approved by Master
Servicer in accordance with the Servicing
Standard, that (i) the agreements executed
by the Borrower and/or the Defeasance
Obligor in connection with the defeasance
are enforceable against them in accordance
with their terms except as such enforcement
may be limited by bankruptcy, insolvency,
reorganization or other similar laws
affecting the enforcement of creditor's
rights generally, and by general principles
of equity (regardless of whether such
enforceability is considered in a proceeding
in equity or at law), and (ii) the Trustee
will have a perfected, first priority
security interest in the defeasance
collateral described above.
j. The agreements executed in connection with
the defeasance (i) permit reinvestment of
proceeds of the defeasance collateral only
in Permitted Investments (as defined in the
S&P Criteria), (ii) permit release of
surplus defeasance collateral and earnings
on reinvestment to the Defeasance Obligor or
the Borrower only after the Mortgage Loan
has been paid in full, if any such release
is permitted, (iii) prohibit any subordinate
liens against the defeasance
P-3
collateral, and (iv) provide for payment
from sources other than the defeasance
collateral or other assets of the Defeasance
Obligor of all fees and expenses of the
securities intermediary for administering
the defeasance and the securities account
and all fees and expenses of maintaining the
existence of the Defeasance Obligor.
k. The Mortgage Loan is not among the ten (10)
largest loans in the pool. The entire
Principal Balance of the Mortgage Loan as of
the date of defeasance was $___________
[$20,000,000 or less or less than five
percent of pool balance, whichever is less]
which is less than 5% of the aggregate
Certificate Principal Balance of the
Certificates as of the date of the most
recent Certificateholder Report received by
us (the "Current Report").
l. The defeasance described herein, together
with all prior and simultaneous defeasances
of Mortgage Loans, brings the total of all
fully and partially defeased Mortgage Loans
to $__________________, which is _____% of
the Aggregate Certificate Balance of the
Certificates as of the date of the Current
Report.
3. Certify that, in addition to the foregoing, Master
Servicer has imposed such additional conditions to
the defeasance (or waived such conditions), subject
to the limitations imposed by the Mortgage Loan
Documents, as are consistent with the Servicing
Standard.
4. Certify that Exhibit B hereto is a list of the
material agreements, instruments, organizational
documents for the Defeasance Obligor, and opinions of
counsel and independent accountants executed and
delivered in connection with the defeasance described
above and that originals or copies of such
agreements, instruments and opinions have been or
will be transmitted to the Trustee or Custodian on
its behalf for placement in the related Mortgage File
or, to the extent not required to be part of the
related Mortgage File, are in the possession of the
Master Servicer as part of the Master Servicer's
Servicing File.
5. Certify and confirm that the determinations and
certifications described above were rendered in
accordance with the Servicing Standard set forth in,
and the other applicable terms and conditions of, the
Pooling and Servicing Agreement.
6. Certify that the individual under whose hand the
Master Servicer has caused this Notice and
Certification to be executed did constitute a
Servicing Officer as of the date of the defeasance
described above.
7. Agree to provide copies of all items listed in
Exhibit B to you upon request.
P-4
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
[PAR] [WFB]
as Master Servicer
By:_______________________________________
Name:
Title:
P-5