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Title: |
Pooling and Servicing Agreement |
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Entities: |
ABN AMRO Bank N.V.; Bear Stearns Commercial Mortgage, Inc.; Bear, Stearns & Co. Inc.; Cede & Co.; Midland Loan Services, Inc.; Morgan Stanley & Co. Inc.; Principal Commercial Funding, LLC; Wells Fargo Bank Minnesota, NA; Wells Fargo Bank, NA; Wells Fargo Brokerage Services, LLC; Federal National Mortgage Association; Goldman, Sachs & Co.; Wells Fargo & Co.; Arcap Servicing, Inc.; LaSalle Bank National Association; Bear Stearns Commercial Mort Sec Tru 2003-Top12 |
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Date: |
2003 |
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$99 |
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#163169 |
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BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
as Depositor,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer,
ARCAP SERVICING, INC.,
as Special Servicer,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee,
WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Paying Agent and Certificate Registrar,
and
ABN AMRO BANK N.V.,
as Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of October 1, 2003
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-TOP12
--------------------------------------------------------------------------------
{PAGE}
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS.........................................10
SECTION 1.2 CALCULATIONS RESPECTING
MORTGAGE LOANS......................................85
SECTION 1.3 CALCULATIONS RESPECTING
ACCRUED INTEREST....................................86
SECTION 1.4 INTERPRETATION......................................86
SECTION 1.5 ARD LOANS...........................................86
SECTION 1.6 CERTAIN MATTERS WITH RESPECT TO LOAN PAIRS
AND A/B MORTGAGE LOANS..............................87
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
SECTION 2.1 CONVEYANCE OF MORTGAGE LOANS........................89
SECTION 2.2 ACCEPTANCE BY TRUSTEE...............................92
SECTION 2.3 SELLERS' REPURCHASE OF MORTGAGE LOANS FOR
MATERIAL DOCUMENT DEFECTS AND MATERIAL
BREACHES OF REPRESENTATIONS AND WARRANTIES..........94
SECTION 2.4 REPRESENTATIONS AND WARRANTIES.....................101
SECTION 2.5 CONVEYANCE OF INTERESTS............................102
ARTICLE III
THE CERTIFICATES
SECTION 3.1 THE CERTIFICATES...................................103
SECTION 3.2 REGISTRATION.......................................103
SECTION 3.3 TRANSFER AND EXCHANGE OF CERTIFICATES..............104
SECTION 3.4 MUTILATED, DESTROYED,LOST OR STOLEN
CERTIFICATES.......................................110
SECTION 3.5 PERSONS DEEMED OWNERS..............................110
SECTION 3.6 ACCESS TO LIST OF CERTIFICATEHOLDERS'
NAMES AND ADDRESSES................................110
SECTION 3.7 BOOK-ENTRY CERTIFICATES............................111
SECTION 3.8 NOTICES TO CLEARING AGENCY.........................114
SECTION 3.9 DEFINITIVE CERTIFICATES............................114
ARTICLE IV
ADVANCES
SECTION 4.1 P&I ADVANCES BY MASTER SERVICER....................115
-i-
{PAGE}
SECTION 4.1A P&I ADVANCES WITH RESPECT TO THE BERKELEY
& BROWN PARI PASSU LOAN, THE RSA PARI PASSU LOAN
AND THE WESTSHORE PLAZA PARI PASSU LOAN...........116
SECTION 4.2 SERVICING ADVANCES................................117
SECTION 4.3 ADVANCES BY THE TRUSTEE AND THE FISCAL AGENT......117
SECTION 4.4 EVIDENCE OF NONRECOVERABILITY.....................118
SECTION 4.5 INTEREST ON ADVANCES; CALCULATION OF
OUTSTANDING ADVANCES WITH RESPECT TO A
MORTGAGE LOAN.....................................119
SECTION 4.6 REIMBURSEMENT OF ADVANCES AND ADVANCE
INTEREST..........................................120
SECTION 4.7 FISCAL AGENT TERMINATION EVENT....................122
SECTION 4.8 PROCEDURE UPON TERMINATION EVENT..................122
SECTION 4.9 MERGER OR CONSOLIDATION OF FISCAL AGENT...........123
SECTION 4.10 LIMITATION ON LIABILITY OF THE FISCAL AGENT AND
OTHERS............................................123
SECTION 4.11 INDEMNIFICATION OF FISCAL AGENT...................124
ARTICLE V
ADMINISTRATION OF THE TRUST
SECTION 5.1 COLLECTIONS.......................................124
SECTION 5.2 APPLICATION OF FUNDS IN THE CERTIFICATE ACCOUNT
AND INTEREST RESERVE ACCOUNT......................128
SECTION 5.3 DISTRIBUTION ACCOUNT AND RESERVE ACCOUNT..........138
SECTION 5.4 PAYING AGENT REPORTS..............................139
SECTION 5.5 PAYING AGENT TAX REPORTS..........................141
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DISTRIBUTIONS GENERALLY...........................142
SECTION 6.2 KIMBALL LANE LOAN REMIC...........................143
SECTION 6.3 REMIC I...........................................143
SECTION 6.4 REMIC II..........................................144
SECTION 6.5 REMIC III.........................................151
SECTION 6.5A GRANTOR TRUST.....................................156
SECTION 6.6 ALLOCATION OF REALIZED LOSSES, EXPENSE LOSSES
AND SHORTFALLS DUE TO NONRECOVERABILITY...........156
SECTION 6.7 NET AGGREGATE PREPAYMENT INTEREST SHORTFALLS......158
SECTION 6.8 ADJUSTMENT OF SERVICING FEES......................159
SECTION 6.9 APPRAISAL REDUCTIONS..............................159
SECTION 6.10 COMPLIANCE WITH WITHHOLDING REQUIREMENTS..........159
SECTION 6.11 PREPAYMENT PREMIUMS...............................160
-ii-
{PAGE}
ARTICLE VII
CONCERNING THE TRUSTEE, THE FISCAL AGENT, THE PAYING AGENT
AND THE LUXEMBOURG PAYING AGENT
SECTION 7.1 DUTIES OF THE TRUSTEE, THE FISCAL AGENT AND THE
PAYING AGENT......................................161
SECTION 7.2 CERTAIN MATTERS AFFECTING THE TRUSTEE,
THE FISCAL AGENT AND THE PAYING AGENT.............162
SECTION 7.3 THE TRUSTEE, THE FISCAL AGENT AND THE PAYING
AGENT NOT LIABLE FOR CERTIFICATES OR
INTERESTS OR MORTGAGE LOANS.......................164
SECTION 7.4 THE TRUSTEE, THE FISCAL AGENT AND THE PAYING
AGENT MAY OWN CERTIFICATES........................166
SECTION 7.5 ELIGIBILITY REQUIREMENTS FOR THE TRUSTEE, THE
FISCAL AGENT AND THE PAYING AGENT.................166
SECTION 7.6 RESIGNATION AND REMOVAL OF THE TRUSTEE, THE
FISCAL AGENT OR THE PAYING AGENT..................166
SECTION 7.7 SUCCESSOR TRUSTEE, FISCAL AGENT OR PAYING
AGENT.............................................168
SECTION 7.8 MERGER OR CONSOLIDATION OF TRUSTEE, FISCAL AGENT
OR PAYING AGENT...................................169
SECTION 7.9 APPOINTMENT OF CO-TRUSTEE, SEPARATE
TRUSTEE, AGENTS OR CUSTODIAN......................170
SECTION 7.10 AUTHENTICATING AGENTS.............................172
SECTION 7.11 INDEMNIFICATION OF TRUSTEE, THE FISCAL
AGENT AND THE PAYING AGENT........................172
SECTION 7.12 FEES AND EXPENSES OF TRUSTEE, THE FISCAL
AGENT AND THE PAYING AGENT........................174
SECTION 7.13 COLLECTION OF MONEYS..............................175
SECTION 7.14 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR..........175
SECTION 7.15 NOTIFICATION TO HOLDERS...........................177
SECTION 7.16 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE,
THE FISCAL AGENT AND THE PAYING AGENT.............177
SECTION 7.17 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY MAINTAINED BY THE TRUSTEE, THE FISCAL
AGENT AND THE PAYING AGENT........................180
SECTION 7.18 APPOINTMENT OF LUXEMBOURG PAYING AGENT;
NOTIFICATION TO CERTIFICATEHOLDERS................180
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 8.1 SERVICING STANDARD; SERVICING DUTIES..............182
SECTION 8.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY MAINTAINED BY THE MASTER SERVICER..........183
SECTION 8.3 MASTER SERVICER'S GENERAL POWER AND DUTIES........183
SECTION 8.4 PRIMARY SERVICING AND SUB-SERVICING...............190
SECTION 8.5 SERVICERS MAY OWN CERTIFICATES....................191
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{PAGE}
SECTION 8.6 MAINTENANCE OF HAZARD INSURANCE, OTHER
INSURANCE, TAXES AND OTHER........................192
SECTION 8.7 ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION
AGREEMENTS; DUE-ON-ENCUMBRANCE CLAUSE.............195
SECTION 8.8 TRUSTEE TO COOPERATE; RELEASE OF TRUSTEE
MORTGAGE FILES....................................199
SECTION 8.9 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
MASTER SERVICER TO BE HELD FOR THE TRUSTEE FOR
THE BENEFIT OF THE CERTIFICATEHOLDERS.............200
SECTION 8.10 SERVICING COMPENSATION............................200
SECTION 8.11 MASTER SERVICER REPORTS; ACCOUNT STATEMENTS.......201
SECTION 8.12 ANNUAL STATEMENT AS TO COMPLIANCE.................204
SECTION 8.13 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS'
SERVICING REPORT..................................204
SECTION 8.14 CMSA OPERATING STATEMENT ANALYSIS REPORTS
REGARDING THE MORTGAGED PROPERTIES................205
SECTION 8.15 OTHER AVAILABLE INFORMATION AND CERTAIN
RIGHTS OF THE MASTER SERVICER.....................206
SECTION 8.16 RULE 144A INFORMATION.............................208
SECTION 8.17 INSPECTIONS.......................................208
SECTION 8.18 MODIFICATIONS, WAIVERS, AMENDMENTS, EXTENSIONS
AND CONSENTS......................................209
SECTION 8.19 SPECIALLY SERVICED MORTGAGE LOANS.................212
SECTION 8.20 REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE MASTER SERVICER............................213
SECTION 8.21 MERGER OR CONSOLIDATION...........................214
SECTION 8.22 RESIGNATION OF MASTER SERVICER....................214
SECTION 8.23 ASSIGNMENT OR DELEGATION OF DUTIES BY MASTER
SERVICER..........................................215
SECTION 8.24 LIMITATION ON LIABILITY OF THE MASTER SERVICER
AND OTHERS........................................215
SECTION 8.25 INDEMNIFICATION; THIRD-PARTY CLAIMS...............217
SECTION 8.26 EXCHANGE ACT REPORTING............................221
SECTION 8.27 COMPLIANCE WITH REMIC PROVISIONS..................222
SECTION 8.28 TERMINATION.......................................222
SECTION 8.29 PROCEDURE UPON TERMINATION........................225
SECTION 8.30 OPERATING ADVISER CONTACT WITH MASTER
SERVICER AND SPECIAL SERVICER.....................227
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE
LOANS BY SPECIAL SERVICER
SECTION 9.1 DUTIES OF SPECIAL SERVICER........................227
SECTION 9.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY OF SPECIAL SERVICER........................229
SECTION 9.3 SUB-SERVICERS.....................................229
SECTION 9.4 SPECIAL SERVICER GENERAL POWERS AND DUTIES........229
-iv-
{PAGE}
SECTION 9.5 "DUE-ON-SALE" CLAUSES; ASSIGNMENT AND
ASSUMPTION AGREEMENTS; MODIFICATIONS OF
SPECIALLY SERVICED MORTGAGE LOANS;
DUE-ON-ENCUMBRANCE CLAUSES........................233
SECTION 9.6 RELEASE OF MORTGAGE FILES.........................237
SECTION 9.7 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
SPECIAL SERVICER TO BE HELD FOR THE TRUSTEE.......238
SECTION 9.8 REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE SPECIAL SERVICER...........................239
SECTION 9.9 STANDARD HAZARD, FLOOD AND COMPREHENSIVE
GENERAL LIABILITY INSURANCE POLICIES..............240
SECTION 9.10 PRESENTMENT OF CLAIMS AND COLLECTION OF
PROCEEDS..........................................242
SECTION 9.11 COMPENSATION TO THE SPECIAL SERVICER..............242
SECTION 9.12 REALIZATION UPON DEFAULTED MORTGAGE LOANS.........243
SECTION 9.13 FORECLOSURE.......................................245
SECTION 9.14 OPERATION OF REO PROPERTY.........................246
SECTION 9.15 SALE OF REO PROPERTY..............................259
SECTION 9.16 REALIZATION ON COLLATERAL SECURITY................250
SECTION 9.17 RESERVED..........................................251
SECTION 9.18 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.....251
SECTION 9.19 ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING
REPORT............................................251
SECTION 9.20 MERGER OR CONSOLIDATION...........................251
SECTION 9.21 RESIGNATION OF SPECIAL SERVICER...................252
SECTION 9.22 ASSIGNMENT OR DELEGATION OF DUTIES BY SPECIAL
SERVICER..........................................253
SECTION 9.23 LIMITATION ON LIABILITY OF THE SPECIAL SERVICER
AND OTHERS........................................253
SECTION 9.24 INDEMNIFICATION; THIRD-PARTY CLAIMS...............255
SECTION 9.25 RESERVED..........................................257
SECTION 9.26 SPECIAL SERVICER MAY OWN CERTIFICATES.............257
SECTION 9.27 TAX REPORTING.....................................257
SECTION 9.28 APPLICATION OF FUNDS RECEIVED.....................257
SECTION 9.29 COMPLIANCE WITH REMIC PROVISIONS..................258
SECTION 9.30 TERMINATION.......................................258
SECTION 9.31 PROCEDURE UPON TERMINATION........................260
SECTION 9.32 CERTAIN SPECIAL SERVICER REPORTS..................262
SECTION 9.33 SPECIAL SERVICER TO COOPERATE WITH THE
MASTER SERVICER AND PAYING AGENT..................263
SECTION 9.34 RESERVED..........................................264
SECTION 9.35 RESERVED..........................................264
SECTION 9.36 SALE OF DEFAULTED MORTGAGE LOANS..................265
SECTION 9.37 OPERATING ADVISER; ELECTIONS......................267
SECTION 9.38 LIMITATION ON LIABILITY OF OPERATING ADVISER......268
SECTION 9.39 DUTIES OF OPERATING ADVISER.......................269
SECTION 9.40 RIGHTS OF THE HOLDER OF A B NOTE..................270
-v-
{PAGE}
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
SECTION 10.1 TERMINATION OF TRUST UPON REPURCHASE OR
LIQUIDATION OF ALL MORTGAGE LOANS.................271
SECTION 10.2 PROCEDURE UPON TERMINATION OF TRUST...............273
SECTION 10.3 ADDITIONAL TRUST TERMINATION REQUIREMENTS.........274
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
SECTION 11.1 LIMITATION ON RIGHTS OF HOLDERS...................275
SECTION 11.2 ACCESS TO LIST OF HOLDERS.........................276
SECTION 11.3 ACTS OF HOLDERS OF CERTIFICATES...................276
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
SECTION 12.1 REMIC ADMINISTRATION..............................277
SECTION 12.2 PROHIBITED TRANSACTIONS AND ACTIVITIES............283
SECTION 12.3 MODIFICATIONS OF MORTGAGE LOANS...................283
SECTION 12.4 LIABILITY WITH RESPECT TO CERTAIN TAXES AND
LOSS OF REMIC STATUS..............................283
SECTION 12.5 THE GRANTOR TRUST.................................284
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1 BINDING NATURE OF AGREEMENT.......................284
SECTION 13.2 ENTIRE AGREEMENT..................................285
SECTION 13.3 AMENDMENT.........................................285
SECTION 13.4 GOVERNING LAW.....................................287
SECTION 13.5 NOTICES...........................................277
SECTION 13.6 SEVERABILITY OF PROVISIONS........................288
SECTION 13.7 INDULGENCES; NO WAIVERS...........................288
SECTION 13.8 HEADINGS NOT TO AFFECT INTERPRETATION.............288
SECTION 13.9 BENEFITS OF AGREEMENT.............................288
SECTION 13.10 SPECIAL NOTICES TO THE RATING AGENCIES............288
SECTION 13.11 COUNTERPARTS......................................290
SECTION 13.12 INTENTION OF PARTIES..............................290
SECTION 13.13 RECORDATION OF AGREEMENT..........................291
SECTION 13.14 RATING AGENCY MONITORING FEES.....................292
SECTION 13.15 ACKNOWLEDGEMENT BY PRIMARY SERVICERS..............292
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{PAGE}
EXHIBITS AND SCHEDULES
----------------------
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-2 Certificate
EXHIBIT A-3 Form of Class A-3 Certificate
EXHIBIT A-4 Form of Class A-4 Certificate
EXHIBIT A-5 Form of Class B Certificate
EXHIBIT A-6 Form of Class C Certificate
EXHIBIT A-7 Form of Class D Certificate
EXHIBIT A-8 Form of Class E Certificate
EXHIBIT A-9 Form of Class F Certificate
EXHIBIT A-10 Form of Class G Certificate
EXHIBIT A-11 Form of Class H Certificate
EXHIBIT A-12 Form of Class J Certificate
EXHIBIT A-13 Form of Class K Certificate
EXHIBIT A-14 Form of Class L Certificate
EXHIBIT A-15 Form of Class M Certificate
EXHIBIT A-16 Form of Class N Certificate
EXHIBIT A-17 Form of Class O Certificate
EXHIBIT A-18 Form of Class R-I Certificate
EXHIBIT A-19 Form of Class R-II Certificate
EXHIBIT A-20 Form of Class R-III Certificate
EXHIBIT A-21 Form of Class R-K Certificate
EXHIBIT A-22 Form of Class X-1 Certificate
EXHIBIT A-23 Form of Class X-2 Certificate
EXHIBIT B-1 Form of Initial Certification of Trustee (Section 2.2)
EXHIBIT B-2 Form of Final Certification of Trustee (Section 2.2)
EXHIBIT C Form of Request for Release
EXHIBIT D-1 Form of Transferor Certificate for Transfers to
Definitive Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-2A Form I of Transferee Certificate for Transfers of
Definitive Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-2B Form II of Transferee Certificate for Transfers of
Definitive Privately Offered Certificates Section 3.3(c))
EXHIBIT D-3A Form I of Transferee Certificate for Transfers of
Interests in Book-Entry Privately Offered
Certificates (Section 3.3(c))
EXHIBIT D-3B Form II of Transferee Certificate for Transfers of
Interests in Book-Entry Privately Offered
Certificates (Section 3.3(c))
EXHIBIT E-1 Form of Transfer Affidavit and Agreement (Section 3.3(e))
EXHIBIT E-2 Form of Transfer Affidavit and Agreement (Section 3.3(e))
EXHIBIT F Form of Regulation S Certificate
EXHIBIT G-1 Form of Principal Primary Servicing Agreement
EXHIBIT G-2 Form of JHREF Primary Servicing Agreement
EXHIBIT H Form of Exchange Certification
EXHIBIT I Form of Euroclear Bank or Clearstream Bank Certificate
(Section 3.7(d)
-vii-
{PAGE}
EXHIBIT J List of Loans as to Which Excess Servicing Fees Are Paid
("Excess Servicing Fee")
EXHIBIT K-1 Form of Mortgage Loan Purchase Agreement I (BSCMI)
EXHIBIT K-2 Form of Mortgage Loan Purchase Agreement II (Wells Fargo)
EXHIBIT K-3 Form of Mortgage Loan Purchase Agreement III (Principal)
EXHIBIT K-4 Form of Mortgage Loan Purchase Agreement IV (MSMC)
EXHIBIT K-5 Form of Mortgage Loan Purchase Agreement V (JHREF)
EXHIBIT L Form of Inspection Report
EXHIBIT M Form of Monthly Certificateholders Reports
(Section 5.4(a))
EXHIBIT N Form of CMSA Operating Statement Analysis Report
EXHIBIT O Reserved
EXHIBIT P Reserved
EXHIBIT Q Reserved
EXHIBIT R Reserved
EXHIBIT S-1 Form of Power of Attorney to Master Servicer
(Section 8.3(c))
EXHIBIT S-2 Form of Power of Attorney to Special Servicer
(Section 9.4(a)
EXHIBIT T Form of Debt Service Coverage Ratio Procedures
EXHIBIT U Form of Assignment and Assumption Submission to Special
Servicer (Section 8.7(a))
EXHIBIT V Form of Additional Lien, Monetary Encumbrance and
Mezzanine Financing Submission Package to the Special
Servicer (Section 8.7(e))
EXHIBIT W Restricted Servicer Reports
EXHIBIT X Unrestricted Servicer Reports
EXHIBIT Y Investor Certificate (Section 5.4(a))
EXHIBIT Z Form of Notice and Certification Regarding Defeasance of
Mortgage Loans
EXHIBIT AA Form of Wells Fargo primary servicing agreement
(Section 8.29(b))
EXHIBIT BB Controlling Class Certificateholder's Reports Checklist
EXHIBIT CC Form of Performance Certification (Section 8.26 (b))
SCHEDULE I BSCMI Loan Schedule
SCHEDULE II Wells Fargo Loan Schedule
SCHEDULE III Principal Loan Schedule
SCHEDULE IV MSMC Loan Schedule
SCHEDULE V JHREF Loan Schedule
SCHEDULE VI List of Escrow Accounts Not Currently Eligible Accounts
(Section 8.3(e))
SCHEDULE VII Certain Escrow Accounts for Which a Report Under
Section 5.1(g) is Required
SCHEDULE VIII List of Mortgagors that are Third-Party Beneficiaries
Under Section 2.3(a)
SCHEDULE IX -
SCHEDULE XVI Rates Used in Determination of Class X Pass-Through Rates
("Class X-1 Strip Rate" and "Class X-2 Strip Rate")
SCHEDULE XVII Mortgage Loans Secured by Mortgaged Properties Covered
by an Environmental Insurance Policy
SCHEDULE XVIII List of Mortgage Loans that have Scheduled Payments
after the end of a Collection Period
-viii-
{PAGE}
THIS POOLING AND SERVICING AGREEMENT is dated as of October 1,
2003 (this "Agreement") between BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES
INC., a Delaware corporation, as depositor (the "Depositor"), WELLS FARGO BANK,
NATIONAL ASSOCIATION, as master servicer (the "Master Servicer"), ARCAP
SERVICING, INC., as special servicer (the "Special Servicer"), LASALLE BANK
NATIONAL ASSOCIATION, as trustee of the Trust (the "Trustee"), ABN AMRO BANK
N.V., only in its capacity as a fiscal agent pursuant to Article IV hereof (the
"Fiscal Agent") and WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, only in
its capacity as paying agent (the "Paying Agent") and certificate registrar.
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage
Loans from Principal Commercial Funding, LLC, as seller ("Principal"), Wells
Fargo Bank, National Association, as seller ("Wells Fargo"), Bear Stearns
Commercial Mortgage, Inc., as seller ("BSCMI"), John Hancock Real Estate
Finance, Inc., as seller ("JHREF") and Morgan Stanley Mortgage Capital Inc., as
seller ("MSMC"), and will be the owner of the Mortgage Loans and the other
property being conveyed by it to the Trustee for inclusion in the Trust which is
hereby created. On the Closing Date, the Depositor will acquire (i) the Kimball
Lane Loan REMIC Regular Interest and the Kimball Lane Loan REMIC Residual
Interest as consideration for its transfer to the Trust of the Kimball Lane
Loan; (ii) the REMIC I Regular Interests and the REMIC I Residual Interest as
consideration for its transfer to the Trust of the Majority Mortgage Loans and
the Kimball Lane Loan REMIC Regular Interest; (iii) the REMIC II Regular
Interests and the Class R-II Certificates as consideration for its transfer of
the REMIC I Regular Interests to the Trust; and (iv) the REMIC III Certificates
(other than the portion of the Class O Certificates representing Excess Interest
and the portion of the Class A-1 and Class X Certificates representing Kimball
Lane Yield Maintenance Amounts) as consideration for its transfer of the REMIC
II Regular Interests to the Trust and the portion of the Class O Certificates
representing Excess Interest and the portion of the Class A-1 and Class X
Certificates representing Kimball Lane Yield Maintenance Amounts as
consideration for its transfer to the Trust of the Excess Interest and the
Kimball Lane Yield Maintenance Amounts, respectively. The Depositor has duly
authorized the execution and delivery of this Agreement to provide for the
foregoing and the issuance of (A) the Kimball Lane Loan Regular Interest and the
Kimball Lane Loan REMIC Residual Interest representing in the aggregate the
entire beneficial ownership of Kimball Lane Loan REMIC, (B) the REMIC I Regular
Interests and the REMIC I Residual Interest representing in the aggregate the
entire beneficial ownership of REMIC I, (C) the REMIC II Regular Interests and
the Class R-II Certificates representing in the aggregate the entire beneficial
ownership of REMIC II and (D) the REMIC III Certificates representing in the
aggregate the entire beneficial ownership of REMIC III and, in the case of the
Class O Certificates, the Class A-1 Certificates and the Class X Certificates,
the Grantor Trust. All covenants and agreements made by the Depositor and the
Trustee herein with respect to the Mortgage Loans and the other property
constituting the Trust are for the benefit of the Holders of the Kimball Lane
Loan REMIC Regular Interest, the REMIC I Regular Interests, the REMIC II Regular
Interests, the Residual Certificates, the REMIC Regular Certificates and the
Class O Certificates to the extent of their interest in the Excess Interest. The
Class R-I Certificates shall represent ownership of the REMIC I Residual
Interest. The Class R-K Certificates shall represent ownership of the Kimball
Lane Loan REMIC Residual Interest. The parties hereto are
{PAGE}
entering into this Agreement, and the Trustee is accepting the trusts created
hereby, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged.
The Class A, Class B, Class C and Class D Certificates will be
offered for sale pursuant to the prospectus (the "Prospectus") dated August 13,
2003, as supplemented by the preliminary prospectus supplement dated September
19, 2003 (together with the Prospectus, the "Preliminary Prospectus
Supplement"), and as further supplemented by the final prospectus supplement
dated October 1, 2003 (together with the Prospectus, the "Final Prospectus
Supplement"), and the Class X-1, Class X-2, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N and Class O Certificates will be
offered for sale pursuant to a Private Placement Memorandum dated October 1,
2003.
The following sets forth the Class designation, Pass-Through
Rate, initial Aggregate Certificate Balance (or initial Notional Amount) and
Final Scheduled Distribution Date for the Kimball Lane Loan REMIC Regular
Interest and the Kimball Lane Loan REMIC Residual Interest comprising interests
in the Kimball Lane Loan REMIC, each Class of REMIC I Regular Interests and the
REMIC I Residual Interest comprising the interests in REMIC I, each Class of
REMIC II Regular Interests and the Class R-II Certificates comprising the
interests in REMIC II and each Class of REMIC III Certificates comprising the
interests in REMIC III created hereunder:
KIMBALL LANE LOAN REMIC
The Kimball Lane Loan REMIC Regular Interest will relate to
the Kimball Lane Loan. The Kimball Lane Loan REMIC Regular Interest will have a
pass-through rate equal to the Kimball Lane Loan REMIC Net Mortgage Rate, an
initial principal amount (the initial "Certificate Balance") equal to the
Scheduled Principal Balance as of the Cut-Off Date (as herein defined) of the
Kimball Lane Loan, and a "latest possible maturity date" set to the Rated Final
Distribution Date of the Kimball Lane Loan. The Kimball Lane Loan REMIC Residual
Interest will be represented by the Class R-K Certificate, will be designated as
the sole Class of residual interests in the Kimball Lane Loan REMIC and will
have no Certificate Balance and no Pass-Through Rate, but will be entitled to
receive the proceeds of any assets remaining in the Kimball Lane Loan REMIC
after the Kimball Lane Loan REMIC Regular Interest has been paid in full.
REMIC I
Each REMIC I Regular Interest (a "Corresponding REMIC I
Regular Interest") will relate to a specific Mortgage Loan. Each Corresponding
REMIC I Regular Interest will have a pass-through rate equal to the REMIC I Net
Mortgage Rate of the related Mortgage Loan an initial principal amount (the
initial "Certificate Balance") equal to the Scheduled Principal Balance as of
the Cut-Off Date (as herein defined) of the Mortgage Loan to which the
Corresponding REMIC I Regular Interest relates, and a "latest possible maturity
date" set to the Maturity Date (as defined herein) of the Mortgage Loan to which
the Corresponding REMIC I Regular Interest relates; provided that in the case of
the Kimball Lane Loan, the Corresponding REMIC I Regular Interest will have a
pass-through rate equal to the REMIC I Net Mortgage Rate of the Kimball Lane
Loan REMIC Regular Interest, an initial principal amount (the initial
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