EXHIBIT 4.1
XXXXXX XXXXXXX CAPITAL I INC.,
as Depositor,
GMAC COMMERCIAL MORTGAGE CORPORATION,
as General Master Servicer,
X.X. XXXXXX COMPANY, INC.,
as General Special Servicer,
NCB, FSB,
as NCB Master Servicer,
NATIONAL CONSUMER COOPERATIVE BANK,
as Co-op Special Servicer
and
XXXXX FARGO BANK, N.A.,
as Trustee, Paying Agent and Certificate Registrar.
POOLING AND SERVICING AGREEMENT
Dated as of October 1, 2005
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-IQ10
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.1 Definitions..................................................
Section 1.2 Calculations Respecting Mortgage Loans.......................
Section 1.3 Calculations Respecting Accrued Interest.....................
Section 1.4 Interpretation...............................................
Section 1.5 ARD Loan.....................................................
Section 1.6 L-3 Communications Mortgage Loan.............................
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans.................................
Section 2.2 Acceptance by Trustee........................................
Section 2.3 Repurchase of Mortgage Loans for Material Document
Defects and Material Breaches of Representations
and Warranties..............................................
Section 2.4 Representations and Warranties...............................
Section 2.5 Conveyance of Interests......................................
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates.............................................
Section 3.2 Registration.................................................
Section 3.3 Transfer and Exchange of Certificates........................
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 3.5 Persons Deemed Owners........................................
Section 3.6 Access to List of Certificateholders' Names and Addresses....
Section 3.7 Book-Entry Certificates......................................
Section 3.8 Notices to Clearing Agency...................................
Section 3.9 Definitive Certificates......................................
ARTICLE IV
ADVANCES
Section 4.1 P&I Advances by the Master Servicers.........................
Section 4.2 Servicing Advances...........................................
Section 4.3 Advances by the Trustee......................................
Section 4.4 Evidence of Nonrecoverability................................
Section 4.5 Interest on Advances; Calculation of Outstanding
Advances with Respect to a Mortgage Loan....................
Section 4.6 Reimbursement of Advances and Advance Interest...............
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections..................................................
Section 5.2 Application of Funds in the Certificate Accounts
and Interest Reserve Accounts...............................
Section 5.3 Distribution Account, Excess Interest Sub-account,
Reserve Account and Floating Rate Account...................
Section 5.4 Paying Agent Reports.........................................
Section 5.5 Paying Agent Tax Reports.....................................
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally......................................
Section 6.2 REMIC I......................................................
Section 6.3 REMIC II.....................................................
Section 6.4 Reserved.....................................................
Section 6.5 REMIC III....................................................
Section 6.6 Allocation of Realized Losses, Expense Losses and
Shortfalls Due to Nonrecoverability.........................
Section 6.7 Net Aggregate Prepayment Interest Shortfalls.................
Section 6.8 Adjustment of Servicing Fees.................................
Section 6.9 Appraisal Reductions.........................................
Section 6.10 Compliance with Withholding Requirements.....................
Section 6.11 Prepayment Premiums and Yield Maintenance Charges............
Section 6.12 Other Distributions..........................................
ARTICLE VII
CERTAIN MATTERS CONCERNING THE TRUSTEE AND THE PAYING AGENT
Section 7.1 Duties of the Trustee and the Paying Agent...................
Section 7.2 Certain Matters Affecting the Trustee and the Paying Agent...
Section 7.3 The Trustee and the Paying Agent Not Liable for
Certificates or Interests or Mortgage Loans.................
Section 7.4 The Trustee and the Paying Agent May Own Certificates........
Section 7.5 Eligibility Requirements for the Trustee and the
Paying Agent................................................
Section 7.6 Resignation and Removal of the Trustee or the Paying Agent...
Section 7.7 Successor Trustee or Paying Agent............................
Section 7.8 Merger or Consolidation of Trustee or Paying Agent...........
Section 7.9 Appointment of Co-Trustee, Separate Trustee,
Agents or Custodian.........................................
Section 7.10 Authenticating Agents........................................
Section 7.11 Indemnification of the Trustee and the Paying Agent..........
Section 7.12 Fees and Expenses of Trustee and the Paying Agent............
Section 7.13 Collection of Moneys.........................................
Section 7.14 Trustee to Act; Appointment of Successor.....................
Section 7.15 Notification to Holders......................................
Section 7.16 Representations and Warranties of the Trustee and
the Paying Agent............................................
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Trustee and the Paying Agent..............
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties.........................
Section 8.2 Fidelity Bond and Errors and Omissions Insurance
Policy Maintained by the Master Servicers...................
Section 8.3 Master Servicers' General Power and Duties...................
Section 8.4 Primary Servicing and Sub-Servicing..........................
Section 8.5 Servicers May Own Certificates...............................
Section 8.6 Maintenance of Hazard Insurance, Other Insurance and Taxes...
Section 8.7 Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Due-On-Encumbrance Clause...................................
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files......
Section 8.9 Documents, Records and Funds in Possession of
the Master Servicers to Be Held for the Trustee for
the Benefit of the Certificateholders.......................
Section 8.10 Servicing Compensation.......................................
Section 8.11 Master Servicer Reports; Account Statements..................
Section 8.12 Annual Statement as to Compliance............................
Section 8.13 Annual Independent Public Accountants' Servicing Report......
Section 8.14 Operating Statement Analysis Reports Regarding the
Mortgaged Properties........................................
Section 8.15 Other Available Information and Certain Rights of
the Master Servicer.........................................
Section 8.16 Rule 144A Information........................................
Section 8.17 Inspections..................................................
Section 8.18 Modifications, Waivers, Amendments, Extensions and Consents..
Section 8.19 Specially Serviced Mortgage Loans............................
Section 8.20 Representations, Warranties and Covenants of the Master
Servicers...................................................
Section 8.21 Merger or Consolidation......................................
Section 8.22 Resignation of the Master Servicer...........................
Section 8.23 Assignment or Delegation of Duties by the Master Servicer....
Section 8.24 Limitation on Liability of the Master Servicers and Others...
Section 8.25 Indemnification; Third-Party Claims..........................
Section 8.26 1934 Act Reporting...........................................
Section 8.27 Compliance with REMIC Provisions and Grantor
Trust Provisions............................................
Section 8.28 Termination..................................................
Section 8.29 Procedure Upon Termination...................................
Section 8.30 Swap Contract................................................
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED
MORTGAGE LOANS BY THE SPECIAL SERVICERS
Section 9.1 Duties of the Special Servicers..............................
Section 9.2 Fidelity Bond and Errors and Omissions Insurance
Policy of the Special Servicers.............................
Section 9.3 Sub-Servicers................................................
Section 9.4 Special Servicers' General Powers and Duties.................
Section 9.5 "Due-On-Sale" Clauses; Assignment and Assumption
Agreements; Modifications of Specially Serviced
Mortgage Loans; Due-On-Encumbrance Clauses..................
Section 9.6 Release of Mortgage Files....................................
Section 9.7 Documents, Records and Funds in Possession of the
Special Servicers to Be Held for the Trustee................
Section 9.8 Representations, Warranties and Covenants of the
Special Servicers...........................................
Section 9.9 Standard Hazard, Flood and Comprehensive General
Liability Insurance Policies................................
Section 9.10 Presentment of Claims and Collection of Proceeds.............
Section 9.11 Compensation to the Special Servicer.........................
Section 9.12 Realization Upon Defaulted Mortgage Loans....................
Section 9.13 Foreclosure..................................................
Section 9.14 Operation of REO Property....................................
Section 9.15 Sale of REO Property.........................................
Section 9.16 Realization on Collateral Security...........................
Section 9.17 [Reserved]...................................................
Section 9.18 Annual Officer's Certificate as to Compliance................
Section 9.19 Annual Independent Accountants' Servicing Report.............
Section 9.20 Merger or Consolidation......................................
Section 9.21 Resignation of the Special Servicer..........................
Section 9.22 Assignment or Delegation of Duties by the Special Servicers..
Section 9.23 Limitation on Liability of the Special Servicers and Others..
Section 9.24 Indemnification; Third-Party Claims..........................
Section 9.25 Reserved.....................................................
Section 9.26 Special Servicers May Own Certificates.......................
Section 9.27 Tax Reporting................................................
Section 9.28 Application of Funds Received................................
Section 9.29 Compliance with REMIC Provisions and Grantor
Trust Provisions............................................
Section 9.30 Termination..................................................
Section 9.31 Procedure Upon Termination...................................
Section 9.32 Certain Special Servicer Reports.............................
Section 9.33 Special Servicers to Cooperate with the Master
Servicers and Paying Agent..................................
Section 9.34 Reserved.....................................................
Section 9.35 Reserved.....................................................
Section 9.36 Sale of Defaulted Mortgage Loans.............................
Section 9.37 Operating Adviser; Elections.................................
Section 9.38 Limitation on Liability of Operating Adviser.................
Section 9.39 Rights of Operating Adviser..................................
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of Trust Upon Repurchase or
Liquidation of All Mortgage Loans...........................
Section 10.2 Procedure Upon Termination of Trust..........................
Section 10.3 Additional Trust Termination Requirements....................
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
Section 11.1 Limitation on Rights of Holders..............................
Section 11.2 Access to List of Holders....................................
Section 11.3 Acts of Holders of Certificates..............................
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
Section 12.1 REMIC Administration.........................................
Section 12.2 Prohibited Transactions and Activities.......................
Section 12.3 Modifications of Mortgage Loans..............................
Section 12.4 Liability with Respect to Certain Taxes and
Loss of REMIC Status........................................
Section 12.5 Grantor Trust Administration.................................
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Binding Nature of Agreement..................................
Section 13.2 Entire Agreement.............................................
Section 13.3 Amendment....................................................
Section 13.4 GOVERNING LAW................................................
Section 13.5 Notices......................................................
Section 13.6 Severability of Provisions...................................
Section 13.7 Indulgences; No Waivers......................................
Section 13.8 Headings Not to Affect Interpretation........................
Section 13.9 Benefits of Agreement........................................
Section 13.10 Special Notices to the Rating Agencies.......................
Section 13.11 Counterparts.................................................
Section 13.12 Intention of Parties.........................................
Section 13.13 Recordation of Agreement.....................................
Section 13.14 Rating Agency Monitoring Fees................................
EXHIBITS AND SCHEDULES
----------------------
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-1A Certificate
EXHIBIT A-3 Form of Class A-2 Certificate
EXHIBIT A-4 Form of Class A-3-1FL Certificate
EXHIBIT A-5 Form of Class A-3-1 Certificate
EXHIBIT A-6 Form of Class A-3-2 Certificate
EXHIBIT A-7 Form of Class A-AB Certificate
EXHIBIT A-8 Form of Class A-4A Certificate
EXHIBIT A-9 Form of Class A-4B Certificate
EXHIBIT A-10 Form of Class X-2 Certificate
EXHIBIT A-11 Form of Class A-J Certificate
EXHIBIT A-12 Form of Class B Certificate
EXHIBIT A-13 Form of Class C Certificate
EXHIBIT A-14 Form of Class D Certificate
EXHIBIT A-15 Form of Class E Certificate
EXHIBIT A-16 Form of Class F Certificate
EXHIBIT A-17 Form of Class G Certificate
EXHIBIT A-18 Form of Class H Certificate
EXHIBIT A-19 Form of Class J Certificate
EXHIBIT A-20 Form of Class K Certificate
EXHIBIT A-21 Form of Class L Certificate
EXHIBIT A-22 Form of Class M Certificate
EXHIBIT A-23 Form of Class N Certificate
EXHIBIT A-24 Form of Class O Certificate
EXHIBIT A-25 Form of Class P Certificate
EXHIBIT A-26 Form of Class EI Certificate
EXHIBIT A-27 Form of Class EI-L3 Certificate
EXHIBIT A-28 Form of Class R-I Certificate
EXHIBIT A-29 Form of Class R-II Certificate
EXHIBIT A-30 Form of Class R-III Certificate
EXHIBIT A-31 Form of Class X-1 Certificate
EXHIBIT A-32 Form of Class X-Y 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 for
Transfers of REMIC Residual Certificates (Section
3.3(e))
EXHIBIT E-2 Form of Transferor Certificate for Transfers of
REMIC Residual Certificates (Section 3.3(e))
EXHIBIT F Form of Transferor Certificate for Transfers of
Regulation S Certificates
EXHIBIT G Reserved
EXHIBIT H Form of Exchange Certification
EXHIBIT I Form of EUROCLEAR or Clearstream Certificate
(Section 3.7(d))
EXHIBIT J List of Loans to Which Excess Servicing Fees Are
Paid
EXHIBIT K-1 Form of Mortgage Loan Purchase Agreement I (MSMC)
EXHIBIT K-2 Form of Mortgage Loan Purchase Agreement II (IXIS)
EXHIBIT K-3 Form of Mortgage Loan Purchase Agreement III (MM)
EXHIBIT K-4 Form of Mortgage Loan Purchase Agreement IV (NCB,
FSB)
EXHIBIT K-5 Form of Mortgage Loan Purchase Agreement V (UCMFI)
EXHIBIT K-6 Form of Mortgage Loan Purchase Agreement VI
(SunTrust)
EXHIBIT L Reserved
EXHIBIT M Form of Monthly Certificateholders Report (Section
5.4(a))
EXHIBIT N Reserved
EXHIBIT O Reserved
EXHIBIT P Reserved
EXHIBIT Q Reserved
EXHIBIT R Reserved
EXHIBIT S-1A Form of Power of Attorney to General Master
Servicer (Section 8.3(c))
EXHIBIT S-1B Form of Power of Attorney to NCB Master Servicer
(Section 8.3(c))
EXHIBIT S-2A Form of Power of Attorney to General Special
Servicer (Section 9.4(a))
EXHIBIT S-2B Form of Power of Attorney to Co-op Special
Servicer (Section 9.4(a))
EXHIBIT T Reserved
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(h))
EXHIBIT W Reserved
EXHIBIT X Reserved
EXHIBIT Y Investor Certification (Section 5.4(a))
EXHIBIT Z Form of Notice and Certification regarding
Defeasance of Mortgage Loan (Section 8.3(h))
EXHIBIT AA Form of Performance Certification
(Section 8.26(b))
SCHEDULE I MSMC Loan Schedule
SCHEDULE II IXIS Loan Schedule
SCHEDULE III MM Loan Schedule
SCHEDULE IV NCB, FSB Loan Schedule
SCHEDULE V UCMFI Loan Schedule
SCHEDULE VI SunTrust Loan Schedule
SCHEDULE VII List of Escrow Accounts Not Currently Eligible
Accounts (Section 8.3(e))
SCHEDULE VIII Certain Escrow Accounts for Which a Report Under
Section 5.1(g) is Required
SCHEDULE IX List of Mortgagors that are Third-Party
Beneficiaries Under Section 2.3(a)
SCHEDULE X Reserved
SCHEDULE XI Earn-Out Reserves
SCHEDULE XII List of Mortgage Loans for which a Scheduled
Payment is Due After the End of a Collection
Period
SCHEDULE XIII List of Mortgage Loans that Permit Voluntary
Principal Prepayment Without Payment of a Full
Month's Interest
SCHEDULE XIV Rates Used in Determination of Class X
Pass-Through Rates ("Class X-1 Strip Rate" and
"Class X-2 Strip Rate")
SCHEDULE XV Class A-AB Planned Principal Balance
THIS POOLING AND SERVICING AGREEMENT is dated as of October 1, 2005
(this "Agreement") among XXXXXX XXXXXXX CAPITAL I INC., a Delaware corporation,
as depositor (the "Depositor"), GMAC COMMERCIAL MORTGAGE CORPORATION, as a
master servicer (the "General Master Servicer"), X.X. XXXXXX COMPANY, INC., as a
special servicer (the "General Special Servicer"), NCB, FSB, as a master
servicer (the "NCB Master Servicer"), NATIONAL CONSUMER COOPERATIVE BANK, as a
special servicer (the "Co-op Special Servicer"), and XXXXX FARGO BANK, N.A., as
trustee of the Trust, as paying agent and as certificate registrar (the
"Trustee," "Paying Agent" and "Certificate Registrar").
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage Loans
from Xxxxxx Xxxxxxx Mortgage Capital Inc., as seller ("MSMC"), IXIS Real Estate
Capital, Inc., as seller ("IXIS"), Massachusetts Mutual Life Insurance Company,
as seller ("MM"), NCB, FSB, as seller ("NCB, FSB"), Union Central Mortgage
Funding, Inc., as seller ("UCMFI") and SunTrust Bank, as seller ("SunTrust"),
and will be the owner of the Mortgage Loans and the other property being
conveyed by it to the Trustee for inclusion in the Trust which is hereby
created. On the Closing Date, the Depositor will acquire (i) the REMIC I Regular
Interests and the Class R-I Certificates as consideration for its transfer to
the Trust of the Mortgage Loans (other than any Excess Interest or Additional
L-3 Interest payable thereon) and the other property constituting REMIC I; (ii)
the REMIC II Regular Interests and the Class R-II Certificates as consideration
for its transfer of the REMIC I Regular Interests to the Trust; (iii) the REMIC
III Certificates and the Class A-3-1FL Regular Interest as consideration for its
transfer of the REMIC II Regular Interests to the Trust; (iv) the Class A-3-1FL
Certificates as consideration for its transfer of the Class A-3-1FL Regular
Interest to the Trust and for the Trustee, on behalf of the Trust, entering into
the Swap Contract, (v) the Class EI Certificates as consideration for its
transfer of the Excess Interest to the Trust and (vi) the Class EI-L3
Certificates as consideration for its transfer of the Additional L-3 Interest to
the Trust. The Depositor has duly authorized the execution and delivery of this
Agreement to provide for the foregoing and the issuance of (A) the REMIC I
Regular Interests and the Class R-I Certificates representing in the aggregate
the entire beneficial ownership of REMIC I, (B) the REMIC II Regular Interests
and the Class R-II Certificates representing in the aggregate the entire
beneficial ownership of REMIC II, (C) the REMIC III Certificates and the Class
A-3-1FL Regular Interest representing in the aggregate the entire beneficial
ownership of REMIC III, (D) the Class A-3-1FL Certificates representing in the
aggregate the entire beneficial ownership of the Class A-3-1FL Grantor Trust and
(E) the Class EI and Class EI-L3 Certificates representing in the aggregate the
entire beneficial ownership of the Class EI/Class EI-L3 Grantor Trust.
Excess Interest received on the Mortgage Loans and Additional L-3
Interest shall be held in the Class EI/Class EI-L3 Grantor Trust for the benefit
of the Class EI Certificates (as to the portion of the Class EI/Class EI-L3
Grantor Trust comprised of Excess Interest) and Class EI-L3 Certificates (as to
the portion of the Class EI/Class EI-L3 Grantor Trust comprised of Additional
L-3 Interest). All covenants and agreements made by the Depositor and the
Trustee herein with respect to the Mortgage Loans and the other property
constituting the Trust are for the benefit of the Holders of the REMIC I Regular
Interests, the REMIC II Regular Interests, the REMIC Regular Certificates, the
Class EI Certificates, the Class EI-L3 Certificates, the Residual Certificates,
the Class A-3-1FL Regular Interest and the Swap Counterparty. The parties hereto
are entering into this Agreement, and the Trustee is accepting the trusts
created hereby, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged.
The Class X-0, Xxxxx X-0X, Xxxxx X-0, Class A-3-1FL, Class A-3-1,
Class A-3-2, Class A-AB, Class A-4A, Class A-4B, Class X-2, Class A-J, Class B,
Class C and Class D Certificates will be offered for sale pursuant to the
prospectus (the "Prospectus") dated June 7, 2005, as supplemented by the
preliminary prospectus supplement dated September 30, 2005 (together with the
Prospectus, the "Preliminary Prospectus Supplement"), and as further
supplemented by the final prospectus supplement dated October 12, 2005 (together
with the Prospectus, the "Final Prospectus Supplement") and the Class X-1, Class
X-Y, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class P, Class EI Certificates and Class EI-L3 Certificates
will be offered for sale pursuant to a Private Placement Memorandum dated
October 12, 2005.
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 (other than the Group X-Y REMIC I Regular Interests) 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 Final Rated
Distribution Date (as defined herein). Each Group X-Y REMIC I Regular Interest
will relate to a specific Specially Designated Co-op Loan. Each Group X-Y REMIC
I Regular Interest will have a Pass-Through Rate equal to the Class X-Y Strip
Rate, an initial notional amount equal to the Scheduled Principal Balance as of
the Cut-Off Date of the Specially Designated Co-op Loan to which such Group X-Y
REMIC I Regular Interest relates, and a latest possible maturity date set to the
Final Rated Distribution Date. Neither Excess Interest nor Additional L-3
Interest shall be included as an asset of REMIC I. The Class R-I Certificates
will be designated as the sole Class of residual interests in REMIC I and will
have no Certificate Balance and no Pass-Through Rate, but will be entitled to
receive the proceeds of any assets remaining in REMIC I after all Classes of
REMIC I Regular Interests have been paid in full.
REMIC II
The REMIC II Regular Interests have the pass-through rates and
Certificate Balances or Notional Amount set forth in the definition thereof. The
Class R-II Certificates will be designated as the sole Class of residual
interests in REMIC II and will have no Certificate Balance and no Pass-Through
Rate, but will be entitled to receive the proceeds of any assets remaining in
REMIC II after all Classes of REMIC II Regular Interests have been paid in full.
The following table sets forth the Class or Component designation,
the corresponding REMIC II Regular Interest (the "Corresponding REMIC II Regular
Interest"), the Corresponding Components of the Class X-1 or Class X-2
Certificates (the "Correpsonding Components") and the Original Class REMIC II
Certificate Balance for each Class of Principal Balance Certificates (and in the
case of the Class A-3-1FL Certificates, the Class A-3-1FL Regular Interest) (the
"Corresponding Certificates").
Corresponding
Original Class Corresponding REMIC II Original REMIC II Components of Class
Corresponding Certificate Balance or Regular Certificate Balance or X-1 or Class X-2
Certificates Notional Balance Interests (1) Notional Balance Certificates (1)
-----------------------------------------------------------------------------------------------------------------------------------
Class A-1 $75,150,000 A-1-1 $8,951,000 A-1-1
A-1-2 $57,241,000 A-1-2
A-1-3 $8,958,000 A-1-3
Class A-1A $231,768,000 A-1A-1 $2,296,000 A-1A-1
A-1A-2 $10,808,000 A-1A-2
A-1A-3 $10,923,000 A-1A-3
A-1A-4 $10,430,000 A-1A-4
A-1A-5 $17,475,000 A-1A-5
A-1A-6 $9,294,000 A-1A-6
A-1A-7 $8,782,000 A-1A-7
A-1A-8 $14,859,000 A-1A-8
A-1A-9 $146,901,000 A-1A-9
Class A-2 $50,000,000 A-2 $50,000,000 A-2
Class A-3-1FL $75,000,000 A-3-1FL-1(2) $287,000 A-3-1FL-1
A-3-1FL-2(2) $28,280,000 A-3-1FL-2
A-3-1FL-3(2) $39,380,000 A-3-1FL-3
A-3-1FL-4(2) $7,053,000 A-3-1FL-4
Class A-3-1 $78,000,000 A-3-1-1 $298,000 A-3-1-1
A-3-1-2 $29,412,000 A-3-1-2
A-3-1-3 $40,955,000 A-3-1-3
A-3-1-4 $7,335,000 A-3-1-4
Class A-3-2 $50,000,000 A-3-2-1 $37,196,000 A-3-2-1
A-3-2-2 $12,804,000 A-3-2-2
Class A-AB $75,000,000 A-AB-1 $17,384,000 A-AB-1
A-AB-2 $57,616,000 A-AB-2
Class A-4A $527,250,000 A-4A-1 $114,094,000 A-4A-1
A-4A-2 $43,957,000 A-4A-2
A-4A-3 $369,199,000 A-4A-3
Class A-4B $75,322,000 A-4B $75,322,000 A-4B
Class A-J $129,549,000 A-J $129,549,000 A-J
Class X-Y N/A X-Y $139,729,337 N/A
Class B $30,938,000 B-1 $9,283,000 B-1
B-2 $16,977,000 B-2
B-3 $4,678,000 B-3
Class C $11,601,000 C-1 $616,000 C-1
C-2 $10,985,000 C-2
Class D $25,137,000 D-1 $2,439,000 X-0
X-0 $22,698,000 D-2
Class E $13,535,000 E $13,535,000 E
Class F $19,335,000 F-1 $9,070,000 F-1
F-2 $10,265,000 F-2
Class G $11,602,000 G $11,602,000 G
Class H $17,402,000 H-1 $9,832,000 H-1
H-2 $7,570,000 H-2
Class J $3,867,000 J $3,867,000 J
Class K $7,734,000 K $7,734,000 K
Class L $5,801,000 L $5,801,000 L
Class M $5,801,000 M $5,801,000 M
Class N $3,867,000 N $3,867,000 N
Class O $5,801,000 O $5,801,000 O
Class P $17,402,538 P $17,402,538 P
------------------------------------
(1) The REMIC II Regular Interests and the Components of the Class X-1 and
Class X-2 Certificates that correspond to any particular Class of
Principal Balance Certificates also correspond to each other and,
accordingly, constitute the "Corresponding REMIC II Regular Interest" and
the "Corresponding Components," respectively, with respect to each other.
(2) REMIC II Regular Interests X-0-0XX-0, X-0-0XX-0, X-0-0XX-0 and A-3-1FL-4
correspond, in the aggregate, to the Class A-3-1FL Regular Interest,
having an initial Certificate Balance of $75,000,000.
REMIC III
The following sets forth the Class designation, Pass-Through Rate,
initial Aggregate Certificate Balance (or initial Notional Amount) and Final
Scheduled Distribution Date for each Class of REMIC III Certificates comprising
the interests in REMIC III created hereunder.
Initial Aggregate Certificate
REMIC III Regular Interest Approximate Initial Balance Final Scheduled
Designation Pass-Through Rate (a) or Notional Amount Distribution Date (b)
-----------------------------------------------------------------------------------------------------------------------------------
Class A-1 4.914% $75,150,000 October 15, 2010
Class A-1A 5.214% $231,768,000 September 15, 2015
Class A-2 5.126% $50,000,000 October 15, 2010
Class A-3-1FL 5.251% $75,000,000 April 15, 2012
Class A-3-1 5.251% $78,000,000 April 15, 2012
Class A-3-2 5.253% $50,000,000 August 15, 2013
Class A-AB 5.178% $75,000,000 July 15, 2014
Class A-4A 5.230% $527,250,000 August 15, 2015
Class A-4B 5.284% $75,322,000 August 15, 2015
Class A-J 5.446% $129,549,000 September 15, 2015
Class X-1 0.043% $1,546,862,538 N/A
Class X-2 0.233% $1,502,744 N/A
Class X-Y 0.102% $139,729,337 N/A
Class B 5.495% $30,938,000 October 15, 2015
Class C 5.513% $11,601,000 October 15, 2015
Class D 5.513% $25,137,000 October 15, 2015
Class E 5.513% $13,535,000 October 15, 2015
Class F 5.513% $19,335,000 August 15, 2016
Class G 5.513% $11,602,000 December 15, 2016
Class H 5.513% $17,402,000 November 15, 2017
Class J 4.944% $3,867,000 November 15, 2017
Class K 4.944% $7,734,000 July 15, 2018
Class L 4.944% $5,801,000 July 15, 2019
Class M 4.944% $5,801,000 March 15, 2020
Class N 4.944% $3,867,000 July 15, 2020
Class O 4.944% $5,801,000 September 15, 2020
Class P 4.944% $17,402,538 August 15, 2030
Class R-III (c) N/A N/A N/A
--------------------------
(a) On each Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of Certificates will be determined as
described herein under the definition of "Pass-Through Rate."
(b) The Final Scheduled Distribution Date for each Class of Certificates
assigned a rating is the Distribution Date on which such Class is expected
to be paid in full, assuming that timely payments (and no prepayments)
will be made on the Mortgage Loans in accordance with their terms (except
that each ARD Loan will be prepaid in full on its Anticipated Repayment
Date) in the case of the REMIC III Regular Interests.
(c) The Class R-III Certificates will be entitled to receive the proceeds of
any remaining assets in REMIC III after the principal amounts of all REMIC
III Regular Interests have been reduced to zero and any Realized Losses
previously allocated thereto (and any interest thereon) have been
reimbursed.
Class EI/Class EI-L3 Grantor Trust
Each Class EI Certificate will be entitled to Excess Interest and
each Class EI-L3 Certificate will be entitled to Additional L-3 Interest
(neither of which will be a part of any REMIC Pool). The parties intend that (i)
the portions of the Trust representing the Excess Interest, Additional L-3
Interest and the Excess Interest Sub-account shall be treated as a grantor trust
under subpart E of Part 1 of subchapter J of Chapter 1 of Subtitle A of the
Code, (ii) the Class EI Certificates shall represent undivided beneficial
interests in the portion of the Trust consisting of the entitlement to receive
Excess Interest and (iii) the Class EI-L3 Certificates shall represent undivided
beneficial interests in the portion of the Trust consisting of the entitlement
to receive Additional L-3 Interest (collectively, the "Class EI/Class EI-L3
Grantor Trust").
As of the Cut-Off Date, the Mortgage Loans had an Aggregate
Principal Balance of $1,546,862,539.
Class A-3-1FL Grantor Trust
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will treat the segregated pool of assets consisting of (i)
the Class A-3-1FL Regular Interest (bearing a fixed rate of interest at 5.251%
per annum subject to a cap equal to the Weighted Average REMIC I Net Mortgage
Rate) and the Swap Contract and all payments under the Class A-3-1FL Regular
Interest and the Swap Contract and (ii) all funds and assets on deposit from
time to time in the Floating Rate Account as a separate grantor trust within the
meaning of subpart E, part I of Subchapter J of Chapter 1 of Subtitle A of the
Code. The Class A-3-1FL Certificates will be treated as undivided beneficial
interests in the Class A-3-1FL Grantor Trust.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the first paragraph of Section 12.1(a) hereof (including the
Mortgage Loans (other than the Excess Interest and Additional L-3 Interest
payable with respect to such Mortgage Loans)) to be treated for federal income
tax purposes as a real estate mortgage investment conduit ("REMIC I"). The REMIC
I Regular Interests will be designated as the "regular interests" in REMIC I and
the Class R-I Certificates will be designated as the sole Class of "residual
interests" in REMIC I for purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the second paragraph of Section 12.1(a) hereof consisting of the
REMIC I Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC II"). The REMIC II Regular
Interests will be designated as the "regular interests" in REMIC II and the
Class R-II Certificates will be designated as the sole Class of "residual
interests" in REMIC II for purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the third paragraph of Section 12.1(a) hereof consisting of the
REMIC II Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC III"). The REMIC III Regular
Interests (including, in the case of the Class A-3-1FL Certificates, the Class
A-3-1FL Regular Interest represented by the Class A-3-1FL Certificates) will be
designated as the "regular interests" in REMIC III and the Class R-III
Certificates (together with the REMIC Regular Certificates, the "REMIC III
Certificates") will be designated as the sole Class of "residual interests" in
REMIC III for purposes of the REMIC Provisions.
ARTICLE I
DEFINITIONS
Section 1.1 Definitions
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
"Accountant" means a Person engaged in the practice of accounting
who is Independent.
"Accrued Certificate Interest" means, with respect to each
Distribution Date and any Class of Interests or Principal Balance Certificates,
interest accrued during the Interest Accrual Period relating to such
Distribution Date on the Aggregate Certificate Balance of such Class or Interest
as of the close of business on the immediately preceding Distribution Date at
the respective rates per annum set forth in the definition of the applicable
Pass-Through Rate for each such Class. Accrued Certificate Interest on the Class
X-1 and Class X-2 Certificates for each Distribution Date will equal the Accrued
Component Interest for the related Interest Accrual Period for all of their
respective Components for such Distribution Date. Accrued Certificate Interest
on the Class X-Y Certificates for each Distribution Date will equal the Class
X-Y Interest Amount.
"Accrued Component Interest" With respect to each Component of the
Class X-1 and Class X-2 Certificates for any Distribution Date, one month's
interest at the Class X-1 Strip Rate or Class X-2 Strip Rate applicable to such
Component for such Distribution Date, accrued on the Component Notional Amount
of such Component outstanding immediately prior to such Distribution Date.
Accrued Component Interest shall be calculated on a 30/360 basis and, with
respect to any Component and any Distribution Date, shall be deemed to accrue
during the calendar month preceding the month in which such Distribution Date
occurs.
"Acquisition Date" means the date upon which, under the Code (and in
particular the REMIC Provisions and Section 856(e) of the Code), the Trust or a
REMIC Pool is deemed to have acquired a Mortgaged Property (or an interest
therein, in the case of each Mortgaged Property securing any Loan Group).
"Additional L-3 Interest" means, in respect of the L-3
Communications Mortgage Loan, additional interest in the amount of seven basis
points (0.07%) above the related Mortgage Rate payable by the related Mortgagor
in the event such Mortgagor obtains mezzanine financing that causes the
aggregate loan-to-value ratio of such mezzanine financing and Mortgage Loan No.
3 to exceed 73%. Additional L-3 Interest on the L-3 Communications Mortgage Loan
is an asset of the Trust, but shall not be an asset of any REMIC Pool formed
hereunder.
"Additional Trust Expense" means any of the following items: (i)
Special Servicing Fees, Work-Out Fees and Liquidation Fees (to the extent not
collected from the related Mortgagor or paid from Late Fees or default interest
as provided in Section 4.5, (ii) Advance Interest that cannot be paid from Late
Fees and default interest in accordance with Section 4.6(c); (iii) amounts paid
to indemnify the Master Servicers, the Special Servicers, any Primary Servicer,
the Certificate Registrar, the Trustee, the Paying Agent (or any other Person)
pursuant to the terms of this Agreement; (iv) to the extent not otherwise paid,
any federal, state, or local taxes imposed on the Trust or its assets and paid
from amounts on deposit in the Certificate Accounts or Distribution Account, (v)
the amount of any Advance plus interest due thereon and Unliquidated Advances
that are not recovered from the proceeds of a Mortgage Loan or Loan Group upon a
Final Recovery Determination and (vi) to the extent not included in the
calculation of a Realized Loss and not covered by indemnification by one of the
parties hereto or otherwise, any other unanticipated cost, liability, or expense
(or portion thereof) of the Trust (including costs of collecting such amounts or
other Additional Trust Expenses) which the Trust has not recovered, and in the
judgment of the Master Servicer (or the Special Servicer, in the case of a
Specially Serviced Mortgage Loan) will not, recover from the related Mortgagor
or Mortgaged Property or otherwise, including a Modification Loss described in
clause (ii) of the definition thereof. Notwithstanding anything in this
Agreement to the contrary, "Additional Trust Expenses" shall not include
allocable overhead of a Master Servicer, a Special Servicer, the Trustee, the
Paying Agent or the Certificate Registrar such as costs for office space, office
equipment, supplies and related expenses, employee salaries and related
expenses, and similar internal costs and expenses, except to the extent
specifically allowed in this Agreement.
"Adjusted Mortgage Rate" means, with respect to any Mortgage Loan
that accrues interest on the basis of a 360-day year consisting of twelve 30-day
months ("30/360 basis"), and with respect to any Distribution Date, the Mortgage
Rate thereof minus the Administrative Cost Rate. For any Mortgage Loan that
accrue(s) interest on a basis other than that of a 30/360 basis and with respect
to any Distribution Date, the rate that, when applied to the Principal Balance
of the related Mortgage Loan (on the day prior to the Due Date preceding such
Distribution Date) on a 30/360 basis for the related loan accrual period, yields
the amount of interest actually due on such Mortgage Loan on the Due Date
preceding such Distribution Date (less the Administrative Cost Rate for such
Mortgage Loan); provided that for purposes of this definition, (i) the Adjusted
Mortgage Rate for the loan accrual period relating to the Due Dates in both
January and February in any year that is not a leap year and in February in any
year that is a leap year, shall be determined net of any amounts transferred to
the Interest Reserve Accounts and (ii) the Adjusted Mortgage Rate for the loan
accrual period relating to the Due Date in March (commencing in March 2006)
shall be determined taking into account the addition of any amounts withdrawn
from the Interest Reserve Accounts, provided, further, that if the Maturity Date
on any Mortgage Loan in January or February or if there is a Principal
Prepayment on any Mortgage Loan in January or February, then the Adjusted
Mortgage Rate shall be determined taking into account the addition of any
amounts withdrawn from the Interest Reserve Account for such month.
"Administrative Cost Rate" means the sum of the Master Servicing Fee
Rate, the Primary Servicing Fee Rate, the Excess Servicing Fee Rate and the
Trustee Fee Rate.
"Advance" means either a P&I Advance or a Servicing Advance.
"Advance Interest" means interest payable to a Master Servicer, a
Special Servicer or the Trustee on outstanding Advances (other than Unliquidated
Advances) pursuant to Section 4.5 of this Agreement.
"Advance Rate" means a per annum rate equal to the Prime Rate as
published in the "Money Rates" section of The Wall Street Journal from time to
time or, if no longer so published, such other publication as determined by the
Trustee in its reasonable discretion.
"Advance Report Date" means the third Business Day prior to each
Distribution Date.
"Adverse Grantor Trust Event" shall mean any action taken by a
Person or the failure of a Person to take any action that, under the Grantor
Trust Provisions, if taken or not taken, as the case may be, could endanger the
status of the Class EI/Class EI-L3 Grantor Trust or the Class A-3-1FL Grantor
Trust as a grantor trust under the Grantor Trust Provisions or result in the
imposition of a tax upon the Class EI/Class EI-L3 Grantor Trust or the Class
A-3-1FL Grantor Trust or its assets or transactions.
"Adverse REMIC Event" means any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, would either (i) endanger
the status of any REMIC Pool as a REMIC or (ii) subject to Section 9.14(e),
result in the imposition of a tax upon the income of any REMIC Pool or any of
their respective assets or transactions, including (without limitation) the tax
on prohibited transactions as defined in Section 860F(a)(2) of the Code and the
tax on prohibited contributions set forth in Section 860G(d) of the Code.
"Affiliate" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Aggregate Certificate Balance" means the aggregate of the
Certificate Balances of the Principal Balance Certificates, the REMIC I Regular
Interests (other than the Group X-Y REMIC I Regular Interests), the REMIC II
Regular Interests (other than REMIC II Regular Interest X-Y) or the REMIC III
Regular Interests, as the case may be, at any date of determination. With
respect to a Class of Principal Balance Certificates, REMIC I Regular Interests
(other than the Group X-Y REMIC I Regular Interests) or REMIC II Regular
Interests (other than REMIC II Regular Interest X-Y), Aggregate Certificate
Balance shall mean the aggregate of the Certificate Balances of all Certificates
or Interests, as the case may be, of that Class at any date of determination.
"Aggregate Principal Balance" means, at the time of any
determination and as the context may require, the aggregate of the Scheduled
Principal Balances for all Mortgage Loans.
"Agreement" means this Pooling and Servicing Agreement and all
amendments and supplements hereto.
"Anticipated Repayment Date" means, with respect to the ARD Loans,
the date on which a substantial principal payment on an ARD Loan is anticipated
to be made, as set forth in the related Mortgage Note.
"Appraisal" means an appraisal by an Independent state certified MAI
appraiser having at least five years' experience in appraising property of the
same type as, and in the same geographic area as, the Mortgaged Property being
appraised, which appraisal complies with the Uniform Standards of Professional
Appraisal Practices and states the "market value" of the subject property as
defined in 12 C.F.R. ss. 225.62.
"Appraisal Event" means, with respect to any Mortgage Loan, not
later than the earliest of (i) the date 120 days after the occurrence of any
delinquency in payment with respect to such Mortgage Loan if such delinquency
remains uncured, (ii) the date 30 days after receipt of notice that the related
Mortgagor has filed a bankruptcy petition or the related Mortgagor has become
the subject of involuntary bankruptcy proceedings or the related Mortgagor has
consented to the filing of a bankruptcy proceeding against it or a receiver is
appointed in respect of the related Mortgaged Property, provided such petition
or appointment is still in effect, (iii) the date that is 30 days following the
date the related Mortgaged Property becomes an REO Property and (iv) the
effective date of any modification to a Money Term of such Mortgage Loan, other
than an extension of the date that a Balloon Payment is due for a period of less
than six months from the original due date of such Balloon Payment.
"Appraisal Reduction" means, with respect to any Required Appraisal
Loan with respect to which an Appraisal or internal valuation is performed
pursuant to Section 6.9, an amount equal to the excess of (A) the sum, as of the
first Determination Date that is at least 15 days after the date on which the
Appraisal or internal valuation is obtained or performed, of (i) the Scheduled
Principal Balance of such Mortgage Loan (or, in the case of an REO Property, the
related REO Mortgage Loan) less the undrawn principal amount of any letter of
credit or debt service reserve, if applicable, that is then securing such
Mortgage Loan, (ii) to the extent not previously advanced by the Master Servicer
or the Trustee, all accrued and unpaid interest on such Mortgage Loan (or, in
the case of an REO Property, the related REO Mortgage Loan), at a per annum rate
equal to the Mortgage Rate, (iii) all unreimbursed Advances (including
Unliquidated Advances) and interest on Advances (other than Unliquidated
Advances) at the Advance Rate with respect to such Mortgage Loan (or, in the
case of an REO Property, the related REO Mortgage Loan) and (iv) to the extent
funds on deposit in any applicable Escrow Accounts are not sufficient therefor,
and to the extent not previously advanced by the applicable Master Servicer, the
applicable Special Servicer or the Trustee, all currently due and unpaid real
estate taxes and assessments, insurance premiums and, if applicable, ground
rents and other amounts which were required to be deposited in any Escrow
Account (but were not deposited) in respect of such Mortgaged Property or REO
Property, as the case may be, over (B) 90% of the Appraised Value (net of any
prior mortgage liens) of such Mortgaged Property or REO Property as determined
by such Appraisal or internal valuation, as the case may be, plus the full
amount of any escrows held by or on behalf of the Trustee as security for the
Mortgage Loan (less the estimated amount of the obligations anticipated to be
payable in the next twelve months to which such escrows relate). With respect to
each Mortgage Loan that is cross-collateralized with any other Mortgage Loan,
the value of each Mortgaged Property that is security for each Mortgage Loan in
such cross-collateralized group, as well as the outstanding amounts under each
such Mortgage Loan shall be taken into account when calculating such Appraisal
Reduction. Each Appraisal or internal valuation for a Required Appraisal Loan
shall be updated annually, for so long as an Appraisal Reduction exists, from
the date of such Appraisal or internal valuation. In addition, the Operating
Adviser may at any time request the applicable Special Servicer to obtain (at
the Operating Adviser's expense) an updated Appraisal, with a corresponding
adjustment to the amount of the Appraisal Reduction. The Appraisal Reduction for
each Required Appraisal Loan will be recalculated based on subsequent
Appraisals, internal valuations or updates. Any Appraisal Reduction for any
Mortgage Loan shall be reduced to reflect any Realized Principal Losses on the
Required Appraisal Loan. Each Appraisal Reduction will be reduced to zero as of
the date the related Mortgage Loan is brought current under the then current
terms of the Mortgage Loan for at least three consecutive months, and no
Appraisal Reduction will exist as to any Mortgage Loan after it has been paid in
full, liquidated, repurchased or otherwise disposed of.
"Appraised Value" means (i) with respect to any Mortgaged Property
(other than the Mortgaged Property securing a Co-op Mortgage Loan), the
appraised value thereof determined by an Appraisal of the Mortgaged Property
securing such Mortgage Loan made by an Independent appraiser selected by the
General Master Servicer, the NCB Master Servicer or the General Special
Servicer, as applicable or, in the case of an internal valuation performed by
the General Special Servicer pursuant to Section 6.9, the value of the Mortgaged
Property determined by such internal valuation and (ii) with respect to each
Mortgaged Property securing a Co-op Mortgage Loan, the appraised value thereof
determined by an Appraisal of the Mortgaged Property securing such Co-op
Mortgage Loan made by an Independent appraiser selected by the NCB Master
Servicer or the Co-op Special Servicer, as applicable, or in the case of an
internal valuation performed by the Co-op Special Servicer pursuant to Section
6.9, the value of the Mortgaged Property determined by such internal valuation,
each determined as if such property were operated as a cooperatively owned
multifamily residential building (rather than a multifamily rental apartment
building).
"ARD Loan" means the Mortgage Loans designated on the Mortgage Loan
Schedule as Mortgage Loan No. 16 and Mortgage Loan No. 60, collectively.
"Assignment of Leases" means, with respect to any Mortgage Loan, any
assignment of leases, rents and profits or equivalent instrument, whether
contained in the related Mortgage or executed separately, assigning to the
holder or holders of such Mortgage all of the related Mortgagor's interest in
the leases, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of the related Mortgaged Property as security
for repayment of such Mortgage Loan.
"Assignment of Mortgage" means an assignment of the Mortgage, notice
of transfer or equivalent instrument, in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the transfer of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties located
in the same jurisdiction, if permitted by law.
"Assumed Scheduled Payment" means: (i) with respect to any Balloon
Mortgage Loan for its Maturity Date (provided that such Mortgage Loan has not
been paid in full, and no Final Recovery Determination or other sale or
liquidation has occurred in respect thereof, on or before the end of the
Collection Period in which such Maturity Date occurs) and for any subsequent Due
Date therefor as of which such Mortgage Loan remains outstanding and part of the
Trust, if no Scheduled Payment (other than the related delinquent Balloon
Payment) is due for such Due Date, the scheduled monthly payment of principal
and/or interest deemed to be due in respect thereof on such Due Date equal to
the Scheduled Payment that would have been due in respect of such Mortgage Loan
on such Due Date, if it had been required to continue to accrue interest in
accordance with its terms, and to pay principal in accordance with the
amortization schedule in effect immediately prior to, and without regard to the
occurrence of, its most recent Maturity Date (as such may have been extended in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the applicable Master Servicer or the applicable Special
Servicer pursuant to the terms hereof) and (ii) with respect to any REO Mortgage
Loan for any Due Date therefor as of which the related REO Property remains part
of the Trust, the scheduled monthly payment of principal and interest deemed to
be due in respect thereof on such Due Date equal to the Scheduled Payment (or,
in the case of a Balloon Mortgage Loan described in the preceding clause of this
definition, the Assumed Scheduled Payment) that was due in respect of the
related Mortgage Loan on the last Due Date prior to its becoming an REO Mortgage
Loan.
"Authenticating Agent" means any authenticating agent serving in
such capacity pursuant to Section 7.10.
"Authorized Officer" means any Person that may execute an Officer's
Certificate on behalf of the Depositor.
"Available Advance Reimbursement Amount" has the meaning set forth
in Section 4.6(a) hereof.
"Available Distribution Amount" means, with respect to any
Distribution Date and the Mortgage Loans, an amount equal to the aggregate of
the following amounts (a) all amounts on deposit in the Distribution Account as
of the commencement of business on such Distribution Date that represent
payments and other collections on or in respect of the Mortgage Loans and any
REO Properties that were (x) received by a Master Servicer or a Special Servicer
through the end of the related Collection Period (other than any portion thereof
that constituted a portion of the Available Distribution Amount for a prior
Distribution Date as described in clause (a)(y) below) or (y) remitted by the
applicable Master Servicer on the related Master Servicer Remittance Date
pursuant to Section 5.1(h), exclusive of (i) any such amounts that were
deposited in the Distribution Account in error, (ii) amounts that are payable or
reimbursable to any Person other than the Certificateholders (including amounts
payable to the Master Servicers in respect of unpaid Master Servicing Fees, the
Primary Servicers in respect of unpaid Primary Servicing Fees, the Special
Servicers in respect of unpaid Special Servicer Compensation, the Trustee in
respect of unpaid Trustee Fees or to the parties entitled thereto in respect of
the unpaid Excess Servicing Fees), (iii) amounts that constitute Prepayment
Premiums or Yield Maintenance Charges, (iv) if such Distribution Date occurs
during January, other than in a leap year, or February of any year, the Interest
Reserve Amounts with respect to Interest Reserve Loans deposited in the Interest
Reserve Accounts, (v) Excess Interest and Additional L-3 Interest and (vi)
Scheduled Payments collected but due on a Due Date subsequent to the related
Collection Period (other than any portion thereof described in clause (a)(y)
above) and (b) if and to the extent not already among the amounts described in
clause (a), (i) the aggregate amount of any P&I Advances made by a Master
Servicer or the Trustee for such Distribution Date pursuant to Section 4.1
and/or Section 4.3, (ii) the aggregate amount of any Compensating Interest
payments made by the Master Servicers for such Distribution Date pursuant to the
terms hereof, and (iii) if a Distribution Date occurs in March of any year,
commencing March 2006 or if a Maturity Date or Principal Prepayment falls on a
January or February of any year, the aggregate of the Interest Reserve Amounts
then held on deposit in the Interest Reserve Accounts in respect of the related
Interest Reserve Loan or Interest Reserve Loans.
"Balloon Mortgage Loan" means a Mortgage Loan that provides for
Scheduled Payments based on an amortization schedule that is significantly
longer than its term to maturity and that is expected to have a remaining
principal balance equal to or greater than 5% of its original principal balance
as of its stated maturity date, unless prepaid prior thereto.
"Balloon Payment" means, with respect to any Balloon Mortgage Loan,
the Scheduled Payment payable on the Maturity Date of such Mortgage Loan.
"Banking Day" means any day on which commercial banks are open for
business (including dealings in foreign exchange and foreign currency) in
London, England.
"Bankruptcy Loss" means a loss arising from a proceeding under the
United States Bankruptcy Code or any other similar state law or other proceeding
with respect to the Mortgagor of, or Mortgaged Property under, a Mortgage Loan,
including, without limitation, any Deficient Valuation Amount or losses, if any,
resulting from any Debt Service Reduction Amount for the month in which the
related Remittance Date occurs.
"Base Interest Fraction" means, with respect to any Principal
Prepayment of any Mortgage Loan that provides for payment of a Prepayment
Premium or Yield Maintenance Charge, and with respect to any Class of
Certificates (except for Class A-3-1FL Certificates) and the Class A-3-1FL
Regular Interest, a fraction (A) whose numerator is the greater of (x) zero and
(y) the difference between (i) the Pass-Through Rate on that Class of
Certificates or the Class A-3-1FL Regular Interest and (ii) the Discount Rate
used in calculating the Prepayment Premium or Yield Maintenance Charge with
respect to the Principal Prepayment (or the current Discount Rate if not used in
such calculation) and (B) whose denominator is the difference between (i) the
Mortgage Rate on the related Mortgage Loan and (ii) the Discount Rate used in
calculating the Prepayment Premium or Yield Maintenance Charge with respect to
that Principal Prepayment (or the current Discount Rate if not used in such
calculation), provided, however, that under no circumstances will the Base
Interest Fraction be greater than one. If the Discount Rate referred to above is
greater than the Mortgage Rate on the related Mortgage Loan, then the Base
Interest Fraction will equal zero.
"Book-Entry Certificates" means certificates evidencing a beneficial
interest in a Class of Certificates, ownership and transfer of which shall be
made through book entries as described in Section 3.7; provided that after the
occurrence of a condition whereupon book-entry registration and transfer are no
longer authorized and Definitive Certificates are to be issued to the
Certificate Owners, such certificates shall no longer be "Book-Entry
Certificates."
"Business Day" means (i) with respect to any matter not involving
the payment of the Net Swap Payment, any day other than a Saturday, a Sunday or
a day on which banking institutions in the states where the Certificate Account,
Distribution Account, Trustee, a Master Servicer, a Primary Servicer or a
Special Servicer are located and are authorized or obligated by law or executive
order to remain closed or (ii) with respect to the payment of the Net Swap
Payment, any day other than a Saturday, a Sunday or a day on which banking
institutions in the states where the Trustee or the Swap Counterparty are
located and are authorized or obligated by law or executive order to remain
closed. With respect to clause (i) of the foregoing definition, upon the request
of any party to this Agreement or the Operating Adviser, the Trustee, the Paying
Agent, each Master Servicer, each Special Servicer and each Primary Servicer
shall provide such party a list of the legal holidays observed by such entity;
provided that each Primary Servicer shall be required to provide the Operating
Adviser and the Master Servicers on or before the first day of January of each
calendar year with a list of each day that will not be a "Business Day" in the
jurisdiction of such Primary Servicer during such calendar year
"Cash Liquidation" means, as to any Defaulted Mortgage Loan other
than a Mortgage Loan with respect to which the related Mortgaged Property became
REO Property, the sale of such Defaulted Mortgage Loan. Each Master Servicer
shall maintain records in accordance with the Servicing Standard (and, in the
case of Specially Serviced Mortgage Loans, based on the written reports with
respect to such Cash Liquidation delivered by the applicable Special Servicer to
the applicable Master Servicer), of each Cash Liquidation.
"Category 1 Requests" has the meaning set forth in the Primary
Servicing Agreements for the SunTrust Loans and the MM Loans.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et
seq.).
"Certificate Account" means one or more separate accounts
established and maintained by each Master Servicer (or any Sub-Servicer or
Primary Servicer on behalf of the applicable Master Servicer) pursuant to
Section 5.1(a), each of which shall be an Eligible Account.
"Certificate Balance" means, with respect to any Certificate (other
than the Class X Certificates, the Class EI Certificates, the Class EI-L3
Certificates and the Residual Certificates) or Interest (other than the Group
X-Y REMIC I Regular Interests and the REMIC II Regular Interest X-Y) as of any
Distribution Date, the maximum specified dollar amount of principal to which the
Holder thereof is then entitled hereunder, such amount being equal to the
initial principal amount set forth on the face of such Certificate (in the case
of a Certificate), or as ascribed thereto in the Preliminary Statement hereto
(in the case of an Interest), minus (A)(i) the amount of all principal
distributions previously made with respect to such Certificate pursuant to
Section 6.5(a) or deemed to have been made with respect to such Interest
pursuant to Section 6.2(a) or Section 6.3(a), as the case may be and (ii) all
Realized Losses allocated or deemed to have been allocated to such Interest or
Certificate pursuant to Section 6.6, plus (B) an amount equal to the amounts
identified in clause (I)(C) of the definition of Principal Distribution Amount,
such increases to be allocated to the Principal Balance Certificates or
Interests in sequential order (i.e., to the most senior Class first), in each
case up to the amount of Realized Losses previously allocated thereto and not
otherwise reimbursed hereunder.
"Certificate Owner" means, with respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Book-Entry Certificate, as may be
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
"Certificate Register" has the meaning provided in Section 3.2.
"Certificate Registrar" means the registrar appointed pursuant to
Section 3.2 and initially shall be the Paying Agent.
"Certificateholders" has the meaning provided in the definition of
"Holder."
"Certificates" means, collectively, the REMIC III Certificates, the
Class A-3-1FL Certificates, the Class EI Certificates, the Class EI-L3
Certificates, the Class R-I Certificates, the Class R-II Certificates and the
Class R-III Certificates.
"Certification Parties" has the meaning set forth in Section
8.26(b).
"Certifying Person" has the meaning set forth in Section 8.26(b).
"Class" means, with respect to the REMIC I Regular Interests, REMIC
II Regular Interests, REMIC III Certificates, Class A-3-1FL Regular Interest,
Class A-3-1FL Certificates, Class EI Certificates and Class EI-L3 Certificates,
any class of such Certificates or Interests.
"Class A Certificates" means the Class A-1 Certificates, Class A-1A
Certificates, Class A-2 Certificates, Class A-3-1FL Certificates (or, as the
context requires, the Class A-3-1FL Regular Interest), Class A-3-1 Certificates,
Class A-3-2 Certificates, Class A-AB Certificates, Class A-4A Certificates and
Class A-4B Certificates, collectively.
"Class A-3-1FL Available Funds" means, in respect of each
Distribution Date, (i) the sum of all previously undistributed payments or other
receipts on account of principal and interest and other sums on or in respect of
the Class A-3-1FL Regular Interest received by the Paying Agent (or the Master
Servicers on the Paying Agent's behalf) after the Cut-off Date and on or prior
to such Distribution Date and (ii) the sum of all previously undistributed
amounts received from the Swap Counterparty in respect of the Class A-3-1FL
Regular Interest pursuant to the Swap Contract, including, but not limited to,
any termination payment, but in the case of both (i) and (ii) excluding the
following: (a) all amounts of Prepayment Premiums allocated to the Class A-3-1FL
Regular Interest for so long as the Swap Contract is in effect; (b) all amounts
required to be paid to the Swap Counterparty in respect of the Class A-3-1FL
Regular Interest pursuant to the Swap Contract; and (c) all amounts incurred by
the Trustee in connection with enforcing the rights of the Trust under the Swap
Contract.
"Class A-3-1FL Grantor Trust" means the segregated pool of assets
consisting of (i) the Class A-3-1FL Regular Interest and the Swap Contract and
all payments under the Class A-3-1FL Regular Interest and the Swap Contract,
(ii) all funds and assets from time to time on deposit in the Floating Rate
Account and (iii) proceeds of all of the foregoing.
"Class A-3-1FL Interest Distribution Amount" means, in respect of
any Distribution Date, the sum of (i) for so long as the Swap Contract is in
effect, the aggregate amount of interest received by the Paying Agent from the
Swap Counterparty in respect of the Class A-3-1FL Regular Interest pursuant to
the terms of the Swap Contract during the related Interest Accrual Period and
(ii) amounts in respect of interest (including reimbursement of any Prepayment
Interest Shortfalls) received on the Class A-3-1FL Regular Interest not required
to be paid to the Swap Counterparty (which will arise due to the netting
provisions of the Swap Contract or upon the termination or expiration of the
Swap Contract). If the Swap Counterparty defaults on its obligation to pay such
interest to the Paying Agent, or if a Swap Default occurs and is continuing or
if the Swap Contract is terminated, the Class A-3-1FL Interest Distribution
Amount will equal the Distributable Certificate Interest Amount in respect of
the Class A-3-1FL Regular Interest, until such time as the Swap Default is
cured, or such obligation is paid, as the case may be, or until a replacement
Swap Contract is obtained.
"Class A-3-1FL Principal Distribution Amount" means, in respect of
any Distribution Date, an amount equal to the aggregate amount of the principal
payments made on the Class A-3-1FL Regular Interest on such Distribution Date.
"Class A-3-1FL Regular Interest" means the uncertificated interest
designated as a "regular interest" in REMIC III, which shall consist of an
Interest having a Certificate Balance equal to the Certificate Balance of the
Class A-3-1FL Certificates, and which has a Pass-Through Rate equal to the per
annum rate of the lesser of 5.251% and the Weighted Average REMIC I Net Mortgage
Rate in respect of each Distribution Date.
"Class A-4 Certificates" means the Class A-4A Certificates and Class
A-4B Certificates, collectively.
"Class A-1 Certificates," "Class A-1A Certificates," "Class A-2
Certificates," "Class A-3-1FL Certificates," "Class A-3-1 Certificates," "Class
A-3-2 Certificates," "Class A-AB Certificates," "Class A-4A Certificates,"
"Class A-4B Certificates," "Class A-J Certificates," "Class X-1 Certificates,"
"Class X-2 Certificates," "Class X-Y Certificates," "Class B Certificates,"
"Class C Certificates," "Class D Certificates," "Class E Certificates," "Class F
Certificates," "Class G Certificates," "Class H Certificates," "Class J
Certificates," "Class K Certificates," "Class L Certificates," "Class M
Certificates," "Class N Certificates," "Class O Certificates," "Class P
Certificates," "Class EI Certificates," "Class EI-L3 Certificates," "Class R-I
Certificates," "Class R-II Certificates," or "Class R-III Certificates" mean the
Certificates designated as "Class A-1," "Class A-1A," "Class A-2," "Class
A-3-1FL," "Class A-3-1," "Class A-3-2," "Class A-AB," "Class A-4A," "Class
X-0X," "Xxxxx X-X," "Class X-1," "Class X-2," "Class X-Y," "Class B," "Class C,"
"Class D," "Class E," "Class F," "Class G," "Class H," "Class J," "Class K,"
"Class L," "Class M," "Class N," "Class O," "Class EI," "Class EI-L3," "Class
R-I," "Class R-II" and "Class R-III," respectively, on the face thereof, in
substantially the form attached hereto as Exhibits A-1 through A-32.
"Class A-1-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-1-1.
"Class A-1-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-1-2.
"Class A-1-3 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-1-3.
"Class A-1A-1 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-1.
"Class A-1A-2 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-2.
"Class A-1A-3 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-3.
"Class A-1A-4 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-4.
"Class A-1A-5 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-5.
"Class A-1A-6 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-6.
"Class A-1A-7 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-7.
"Class A-1A-8 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-8.
"Class A-1A-9 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-9.
"Class A-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-2 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-2.
"Class A-3-1FL-1 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-3-1FL Regular Interest, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-3-1FL-1.
"Class A-3-1FL-2 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-3-1FL Regular Interest, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-3-1FL-2.
"Class A-3-1FL-3 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-3-1FL Regular Interest, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-3-1FL-3.
"Class A-3-1FL-4 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-3-1FL Regular Interest, which
component represents a Component Notional Amount equal to the Certificate
Balance of the REMIC II Regular Interest A-3-1FL-4.
"Class A-3-1-1 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-3-1 Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-3-1-1.
"Class A-3-1-2 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-3-1 Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-3-1-2.
"Class A-3-1-3 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-3-1 Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-3-1-3
"Class A-3-1-4 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-3-1 Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-3-1-4.
"Class A-3-2-1 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-3-2 Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-3-2-1.
"Class A-3-2-2 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-3-2 Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-3-2-2.
"Class A-AB-1 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-AB Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-AB-1.
"Class A-AB-2 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-AB Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-AB-2.
"Class A-4A-1 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-4A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-4A-1.
"Class A-4A-2 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-4 Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-4A-2.
"Class A-4A-3 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-4 Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-4A-3.
"Class A-4B Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4B Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-4B.
"Class A-J Component" means a component of the beneficial interest
in REMIC III evidenced by the Class A-J Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-J.
"Class B-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class B Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest B-1.
"Class B-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class B Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest B-2.
"Class B-3 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class B Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest B-3.
"Class C-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class C Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest C-1.
"Class C-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class C Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest C-2.
"Class D-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class D Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest D-1.
"Class D-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class D Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest D-2.
"Class E Component" means a component of the beneficial interest in
REMIC III evidenced by the Class E Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest E.
"Class EI/Class EI-L3 Grantor Trust" means that portion of the Trust
consisting of Excess Interest, Additional L-3 Interest and the Excess Interest
Sub-account.
"Class F-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class F Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest F-1.
"Class F-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class F Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest F-2.
"Class G Component" means a component of the beneficial interest in
REMIC III evidenced by the Class G Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest G.
"Class H-1 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class H Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest H-1.
"Class H-2 Component" means a component of the beneficial interest
in REMIC III evidenced by the Class H Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest H-2.
"Class J Component" means a component of the beneficial interest in
REMIC III evidenced by the Class J Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest J.
"Class K Component" means a component of the beneficial interest in
REMIC III evidenced by the Class K Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest K.
"Class L Component" means a component of the beneficial interest in
REMIC III evidenced by the Class L Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest L.
"Class M Component" means a component of the beneficial interest in
REMIC III evidenced by the Class M Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest M.
"Class N Component" means a component of the beneficial interest in
REMIC III evidenced by the Class N Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest N.
"Class O Component" means a component of the beneficial interest in
REMIC III evidenced by the Class O Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest O.
"Class P Component" means a component of the beneficial interest in
REMIC III evidenced by the Class P Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest P.
"Class X Certificates" means the Class X-1 Certificates, the Class
X-2 Certificates and the Class X-Y Certificates, collectively.
"Class X-1 Notional Amount" means, with respect to the Class X-1
Certificates and any date of determination, the aggregate of the outstanding
Certificate Balances of the Principal Balance Certificates.
"Class X-1 Strip Rate" means, with respect to any Class of
Components (other than Components that are also Class X-2 Components) for any
Distribution Date, a rate per annum equal to (i) the Weighted Average REMIC I
Net Mortgage Rate for such Distribution Date, minus (ii) the Pass-Through Rate
for the Corresponding Certificates. In the case of any Class of Components that
are also Class X-2 Components, (i) for any Distribution Date occurring on or
before the related Class X-2 Component Crossover Date, a rate per annum equal
to, (x) the Weighted Average REMIC I Net Mortgage Rate for such Distribution
Date, minus (y) the greater of (1) the rate per annum corresponding to such
Distribution Date as set forth in Schedule XV attached hereto and (2) the Pass
Through Rate for the Class of Corresponding Certificates, and (ii) for any
Distribution Date occurring after the related Class X-2 Component Crossover
Date, a rate per annum equal to (x) the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date, minus (y) the Pass-Through Rate for the
Corresponding Certificates (provided that in no event shall any Class X-1 Strip
Rate be less than zero).
"Class X-2 Component Crossover Date" means, (i) with respect to the
Class A-1-2 Component and the Class A-1A-2 Component, the Distribution Date in
October 2006,
(ii) with respect to the Class A-1-3 Component, Class A-1A-3
Component, Class A-2 Component, Class A-3-1FL-1 Component, Class A-3-1-1
Component, Class H-1 Component, Class J Component, Class K Component and Class L
Component the Distribution Date occurring in October 2007;
(iii) with respect to the Class A-1A-4 Component, Class A-3-1FL-2
Component, Class A-3-1-2 Component, Class F-1 Component, Class G Component and
Class H-2 Component, the Distribution Date occurring in October 2008;
(iv) with respect to the Class A-1A-5 Component, Class A-3-1FL-3
Component, Class A-3-1-3 Component, Class D-1 Component, Class F-2 Component and
Class E Component, the Distribution Date occurring in October 2009;
(v) with respect to the Class A-1A-6 Component, Class A-3-1FL-4
Component, Class A-3-1-4 Component, Class A-3-2-1 Component, Class A-AB-1
Component, Class C-1 Component and Class D-2 Component, the Distribution Date
occurring in October 2010;
(vi) with respect to the Class A-1A-7 Component, Class A-3-2-2
Component, Class A-AB-2 Component, Class A-4A-1 Component, Class B-1 Component
and Class C-2 Component, the Distribution Date occurring in October 2011;
(vii) with respect to the Class A-1A-8 Component, Class A-4A-2
Component and Class B-2 Component, the Distribution Date occurring in October
2012; and
(viii), with respect to the Class A-1A-9 Component, Class A-4A-3
Component, Class A-4B Component, Class A-J Component and Class B-3 Component,
the Distribution Date occurring in October 2013.
"Class X-2 Components" means each of the Class A-1-2 Component,
Class A-1-3 Component, Class A-1A-2 Component, Class A-1A-3 Component, Class
A-1A-4 Component, Class A-1A-5 Component, Class A-1A-6 Component, Class A-1A-7
Component, Class A-1A-8 Component, Class A-1A-9 Component, Class A-2 Component,
Class A-3-1FL-1 Component, Class A-3-1FL-2 Component, Class A-3-1FL-3 Component,
Class A-3-1FL-4 Component, Class A-3-1-1 Component, Class A-3-1-2 Component,
Class A-3-1-3 Component, Class A-3-1-4 Component, Class A-3-2-1 Component, Class
A-3-2-2 Component, Class A-AB-1 Component, Class A-AB-2 Component, Class A-4A-1
Component, Class A-4A-2 Component, Class A-4A-3 Component, Class A-4B Component,
Class A-J Component, Class B-1 Component, Class B-2 Component, Class C-1
Component, Class C-2 Component, Class D-1 Component, Class D-2 Component, Class
E Component, Class F-1 Component, Class F-2 Component, Class G Component, Class
H-1 Component, Class H-2 Component, Class J-1 Component, Class J-2 Component,
Class K Component and Class L Component.
"Class X-2 Notional Amount" means as of any date of determination,
the sum of the then Component Notional Amounts of the Class X-2 Components
excluding the Class X-2 Components for which the Class X-2 Crossover Date has
been previously passed.
"Class X-2 Strip Rate" means, with respect to each of the Class X-2
Components for any Distribution Date, a rate per annum equal to (i) for any
Distribution Date occurring on or before the related Class X-2 Component
Crossover Date, the excess, if any, of (x) the lesser of (i) the rate per annum
corresponding to such Distribution Date as set forth in Schedule XV attached
hereto and (ii) the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date over (y) the Pass Through Rate for the Class of Corresponding
Certificates (provided that, in no event shall any Class X-2 Strip Rate be less
than zero), and (ii) for any Distribution Date occurring after the related Class
X-2 Component Crossover Date, 0% per annum.
"Class X-Y Interest Amount" means, with respect to any Distribution
Date and the related Interest Accrual Period, interest accrued on the Class X-Y
Notional Amount during the related Interest Accrual Period at a rate equal to
one twelfth of a per annum rate equal to the Weighted Average Class X-Y Strip
Rate.
"Class X-Y Notional Amount" means, with respect to any Distribution
Date, the aggregate of the Principal Balances of the Specially Designated Co-op
Mortgage Loans (or any successor REO Mortgage Loans), reduced by any Advances of
principal on such Specially Designated Co-op Mortgage Loans (or any successor
REO Mortgage Loans) and losses on those Specially Designated Co-op Mortgage
Loans previously allocated to the Certificateholders.
"Class X-Y Strip Rate" means, with respect to any Specially
Designated Co-op Mortgage Loan (and any successor REO Mortgage Loan with respect
thereto), for any Distribution Date, a rate per annum equal to either: (1) if
such Mortgage Loan accrues interest on a 30/360 basis, 0.10%; and (2) if such
Mortgage Loan accrues interest on a basis other than that of a 30/360 basis, the
product of (a) 0.10%, multiplied by (b) a fraction, the numerator of which is
the number of days in the Interest Accrual Period that corresponds to such
Distribution Date, and the denominator of which 30.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the 1934 Act, which initially shall be the
Depository.
"Clearstream" means Clearstream Banking Luxembourg, societe anonyme.
"Closing Date" means on or about October 25, 2005.
"CMSA" means the Commercial Mortgage Securities Association.
"CMSA Bond Level File" means a 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 approved by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"Bond Level File" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Trustee, as applicable.
"CMSA Collateral Summary File" means a 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 approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Collateral Summary File" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Trustee, as applicable.
"CMSA Comparative Financial Status Report" means 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 and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Comparative Financial Status
Report" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Delinquent Loan Status Report" means 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 approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Delinquent Loan Status Report" available as of the Closing Date
on the CMSA Website, is reasonably acceptable to the Master Servicer or the
Special Servicer, as applicable.
"CMSA Financial File" means 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 approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Financial File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA Historical Liquidation Report" means 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 approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Historical Liquidation Report" available as of the Closing Date
on the CMSA Website, is reasonably acceptable to the Master Servicer or the
Special Servicer, as applicable.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report" means a report substantially in the form of, and containing the
information called for in, the downloadable form of the "Historical Loan
Modification and Corrected Mortgage Loan Report" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be approved by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Historical Loan Modification and
Corrected Mortgage Loan Report" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA Loan Level Reserve/LOC Report" means a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Loan Level Reserve/LOC Report" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Loan Level Reserve/LOC Report" available as of the Closing Date
on the CMSA Website, is reasonably acceptable to the Master Servicer or the
Special Servicer, as applicable.
"CMSA Loan Periodic Update File" means a 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, insofar as it requires the presentation of
information in addition to that called for by the form of the "Loan Periodic
Update File" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Loan Setup File" means a 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 approved by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"Loan Setup File" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA NOI Adjustment Worksheet" means 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 approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "NOI Adjustment Work" available as of the Closing Date on the
CMSA Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA Operating Statement Analysis Report" means 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 such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Operating Statement Analysis
Report" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Property File" means 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 approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Property File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA Reconciliation of Funds" means a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Reconciliation of Funds" 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 approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Reconciliation of Funds" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Trustee.
"CMSA REO Status Report" means 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
such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "REO Status Report" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA Reports" means the Restricted Servicer Reports and the
Unrestricted Servicer Reports, collectively, as the forms thereof are modified,
expanded or otherwise changed from time to time by the CMSA. With respect to new
reports created and approved by the CMSA, such new reports will be used in this
transaction (provided, however, that insofar as any such new report requires the
presentation of information in addition to that called for by the current CMSA
reports, such new report is reasonably acceptable to the Master Servicer or the
Special Servicer, as applicable) and the Depositor shall direct the Trustee as
to whether such reports will be Restricted Servicer Reports or Unrestricted
Servicer Reports. The Trustee shall provide the Master Servicer and Special
Servicer with a copy of such direction within two Business Days after its
receipt. In the case of each Mortgaged Property securing a Co-op Mortgage Loan,
the respective files and reports comprising the CMSA Reports shall present the
Projected Net Cash Flow for such Mortgaged Property and the Debt Service
Coverage Ratio for such Co-op Mortgage Loan, as such terms apply to residential
cooperative properties, if and to the extent that such file or report requires
preparation and/or submission of data concerning net cash flow or debt service
coverage.
"CMSA Servicer Watch List" means a report substantially in the form
of, and containing the information called for in, the downloadable form of
"Servicer Watch List" 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 approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Servicer Watch List" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable; provided, however, that, notwithstanding the foregoing,
the NCB Master Servicer shall not be required to include a Co-op Mortgage Loan
on the Servicer Watch List on account of the Debt Service Coverage Ratio of such
Co-op Mortgage Loan, unless such Debt Service Coverage Ratio shall fall below
0.90x (for purposes of the calculation of the Debt Service Coverage Ratio of a
Co-op Mortgage Loan for this definition only, the Projected Net Cash Flow of the
related Mortgaged Property shall be adjusted to reflect the actual expenses
incurred by the Mortgagor).
"CMSA Special Servicer Loan File" means a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Special Servicer Loan File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Special Servicer Loan File" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Special Servicer, as
applicable.
"CMSA Website" means the CMSA's website located at "xxx.xxxx.xxx" or
such other primary website as the CMSA may establish for dissemination of its
report forms.
"Code" means the Internal Revenue Code of 1986, as amended, any
successor statutes thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto in temporary or final form and proposed
regulations thereunder, to the extent that, by reason of their proposed
effective date, such proposed regulations would apply to the Trust.
"Collection Period" means, with respect to any Distribution Date,
the period beginning on the day after the Determination Date in the month
preceding the month of such Distribution Date (or in the case of the first
Distribution Date, the Cut-Off Date) and ending on the Determination Date in the
month in which the Distribution Date occurs.
"Commission" means the Securities and Exchange Commission.
"Compensating Interest" means, with respect to any Distribution Date
and each Master Servicer, an amount equal to the excess of (A) Prepayment
Interest Shortfalls incurred in respect of the Mortgage Loans serviced by such
Master Servicer resulting from Principal Prepayments on such Mortgage Loans
during the related Collection Period, over (B) the aggregate of the Prepayment
Interest Excesses received in respect of the Mortgage Loans serviced by such
Master Servicer resulting from Principal Prepayments on such Mortgage Loan
during the same related Collection Period. Notwithstanding the foregoing, such
Compensating Interest shall not (i) exceed the portion of the aggregate Master
Servicing Fee accrued at a rate per annum equal to 2 basis points for the
related Collection Period calculated in respect of such Master Servicer's
Mortgage Loans, including REO Mortgage Loans, if such Master Servicer applied
the subject Principal Prepayment in accordance with the terms of the related
Mortgage Loan documents and (ii) be required to be paid on any Net Aggregate
Prepayment Interest Shortfalls to the extent incurred in respect of any
Specially Serviced Mortgaged Loans.
"Component" means each of the Class A-1-1 Component, Class A-1-2
Component, Class A-1-3 Component, Class A-1A-1 Component, Class A-1A-2
Component, Class A-1A-3 Component, Class A-1A-4 Component, Class A-1A-5
Component, Class A-1A-6 Component, Class A-1A-7 Component, Class A-1A-8
Component, Class A-1A-9 Component, Class A-2 Component, Class A-3-1FL-1
Component, Class A-3-1FL-2 Component, Class A-3-1FL-3 Component, Class A-3-1FL-4
Component, Class A-3-1-1 Component, Class A-3-1-2 Component, Class A-3-1-3
Component, Class A-3-1-4 Component, Class A-3-2-1 Component, Class A-3-2-2
Component, Class A-AB-1 Component, Class A-AB-2 Component, Class A-4A-1
Component, Class A-4A-2 Component, Class A-4A-3 Component, Class A-4B Component,
Class A-J Component, Class B-1 Component, Class B-2 Component, Class B-3
Component, Class C-1 Component, Class C-2 Component, Class D-1 Component, Class
D-2 Component, Class E Component, Class F-1 Component, Class F-2 Component,
Class G Component, Class H-1 Component, Class H-2 Component, Class J Component,
Class K Component, Class L Component, Class M Component, Class N Component,
Class O Component and Class P Component.
"Component Notional Amount" means with respect to each Component and
any date of determination, an amount equal to the then Certificate Balance of
its Corresponding REMIC II Regular Interest.
"Condemnation Proceeds" means any awards resulting from the full or
partial condemnation or any eminent domain proceeding or any conveyance in lieu
or in anticipation thereof with respect to a Mortgaged Property by or to any
governmental, quasi-governmental authority or private entity with condemnation
powers (other than amounts to be applied to the restoration, preservation or
repair of such Mortgaged Property or released to the related Mortgagor in
accordance with the terms of the Mortgage Loan.
"Controlling Class" means the most subordinate Class of REMIC
Regular Certificates or Class A-3-1FL Certificates outstanding at any time of
determination; provided that, if the aggregate Certificate Balance of such Class
is less than 25% of the initial Certificate Balance of such Class as of the
Closing Date, the Controlling Class shall be the next most subordinate Class of
REMIC Regular Certificates or Class A-3-1FL Certificates outstanding. As of the
Closing Date, the Controlling Class will be the Class O Certificates.
"Controlling Person" means, with respect to any Person, any other
Person who "controls" such Person within the meaning of the 1933 Act.
"Co-op Mortgage Loan" means any Mortgage Loan that, as of the date
it is first included in the Trust, is secured by a Mortgage that encumbers a
residential cooperative property, as identified on Schedule IV hereto.
"Co-op Special Servicer" means National Consumer Cooperative Bank,
or any successor Special Servicer as herein provided, including without
limitation any successor Special Servicer appointed pursuant to Section 9.39
hereof.
"Co-op Trust Assets" means the Co-op Mortgage Loans, any REO
Properties acquired by the Trust with respect to the Co-op Mortgage Loans and
any and all other related assets of the Trust.
"Corporate Trust Office" means, with respect to the presentment and
surrender of Certificates for the final distribution thereon or the presentment
and surrender of Certificates for any other purpose, the principal corporate
trust office of the Certificate Registrar. The principal corporate trust office
of the Trustee is presently located at Xxxxx Xxxxx Xxxxxx, Xxxxx xxx Xxxxxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000 with respect to certificate transfers and at
0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000 with respect to other
trustee and securities administration services, or at such other address as the
Trustee or Certificate Registrar may designate from time to time by notice to
the Certificateholders, the Depositor, the Master Servicers and the Special
Servicers.
"Corresponding Certificate" means the Class of Certificates (or, in
the case of the Class A-3-1FL Certificates, the Class A-3-1FL Regular Interest)
as set forth in the Preliminary Statement with respect to any Corresponding
Component or any Corresponding REMIC II Regular Interest.
"Corresponding Component" means the Component as set forth in the
Preliminary Statement with respect to any Corresponding Certificate (or, in the
case of the Class A-3-1FL Certificates, the Class A-3-1FL Regular Interest) or
any Corresponding REMIC II Regular Interest.
"Corresponding REMIC I Regular Interest" means, with respect to each
Mortgage Loan, the REMIC I Regular Interest or Interests having an initial
Certificate Balance (in the case of the Group PB REMIC Regular Interests) or
initial Notional Amount (in the case of the Group X-Y REMIC I Regular
Interests), equal to the Principal Balance of such Mortgage Loan outstanding as
of the Cut-Off Date, after taking into account all principal and interest
payments made or due prior to the Cut-Off Date.
"Corresponding REMIC II Regular Interest" means the REMIC II Regular
Interest as defined in the Preliminary Statement with respect to any Class of
Corresponding Certificates or any Corresponding Component.
"Credit Support Provider" shall have the meaning assigned in the
Swap Contract.
"Cross-Collateralized Loan" has the meaning set forth in Section
2.3(a) hereof.
"Custodian" means the Trustee or any Person who is appointed by the
Trustee at any time as custodian pursuant to Section 7.9 and who is unaffiliated
with the Depositor and each Seller and satisfies the eligibility requirements of
the Trustee as set forth in Section 7.5.
"Customer" means a broker, dealer, bank, other financial institution
or other Person for whom the Clearing Agency effects book-entry transfers and
pledges of securities deposited with the Clearing Agency.
"Cut-Off Date" means the end of business on October 1, 2005. The
Cut-Off Date for any Mortgage Loan that has a Due Date on a date other than the
first day of each month shall be the end of business on October 1, 2005 and
Scheduled Payments due in October 2005 with respect to Mortgage Loans not having
Due Dates on the first of each month have been deemed received on October 1,
2005, not the actual day on which such Scheduled Payments were due.
"Debt Service Coverage Ratio" means either, (a) with respect to any
Mortgage Loan (other than a Co-op Mortgage Loan), as of any date of
determination, the ratio of (1) the annual, year-end net cash flow of the
related Mortgaged Property or Mortgaged Properties, determined as provided in
the NOI Adjustment Worksheet based on the most recent annual, year-end operating
statements provided by the Mortgagor (or if no annual, year-end operating
statements have been provided, based on such information provided by the
Mortgagor, including without limitation rent rolls and other unaudited financial
information, as the applicable Master Servicer shall determine in accordance
with the Servicing Standard) to (2) the annualized amount of debt service
payable on that Mortgage Loan or, in the case of Mortgage Loans that are
interest-only, where periodic payments are interest-only for a certain amount of
time after origination after which date the Mortgage Loan amortizes principal
for the remaining term of the Mortgage Loan, the annualized amount of debt
service that will be payable under the Mortgage Loan after the beginning of the
amortization term of the Mortgage Loan, or (b) with respect to any Co-op
Mortgage Loan, as of any date of determination, the ratio of (1) the Projected
Net Cash Flow for the related Mortgaged Property on an annualized basis to (2)
the annualized amount of debt service payable on that Co-op Mortgage Loan.
"Debt Service Reduction Amount" means, with respect to a Due Date
and the related Determination Date, the amount of the reduction of the Scheduled
Payment which a Mortgagor is obligated to pay on such Due Date with respect to a
Mortgage Loan as a result of any proceeding under bankruptcy law or any similar
proceeding (other than a Deficient Valuation Amount); provided, however, that in
the case of an amount that is deferred as a result of any such proceeding, but
not forgiven, the amount of the reduction shall include only the net present
value (calculated at the related Mortgage Rate) of the reduction.
"Defaulted Mortgage Loan" means a Mortgage Loan that is in default
under the terms of the applicable Mortgage Loan documentation and for which any
applicable grace period has expired.
"Defeasance Collateral" means, with respect to any Defeasance Loan,
"government securities" as defined in Section 2(a)(16) of the Investment Company
Act of 1940 required to be pledged in lieu of prepayment pursuant to the terms
thereof.
"Defeasance Loan" means any Mortgage Loan which requires or permits
the related Mortgagor (or permits the holder of such Mortgage Loan to require
the related Mortgagor) to pledge Defeasance Collateral to such holder in lieu of
prepayment.
"Deficient Valuation" means, with respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property
relating to such Mortgage Loan in an amount less than the then outstanding
indebtedness under such Mortgage Loan, which valuation results from a proceeding
initiated under the United States Bankruptcy Code, as amended from time to time,
and that reduces the amount the Mortgagor is required to pay under such Mortgage
Loan.
"Deficient Valuation Amount" means with respect to each Mortgage
Loan, the amount by which the total amount due with respect to such Mortgage
Loan or (excluding interest not yet accrued), including the Principal Balance of
such Mortgage Loan plus any accrued and unpaid interest thereon and any other
amounts recoverable from the Mortgagor with respect thereto pursuant to the
terms thereof, is reduced in connection with a Deficient Valuation.
"Definitive Certificates" means Certificates of any Class issued in
definitive, fully registered, certificated form without interest coupons.
"Deleted Mortgage Loan" means a Mortgage Loan which is repurchased
from the Trust pursuant to the terms hereof or as to which one or more
Qualifying Substitute Mortgage Loans are substituted.
"Depositor" means Xxxxxx Xxxxxxx Capital I Inc., a Delaware
corporation, and its successors in interest.
"Depository" has the meaning set forth in Section 3.7(a).
"Depository Agreement" means the Blanket Letter of Representations
dated the Closing Date between the Depositor and the Depository.
"Determination Date" means (a), with respect to any Distribution
Date and any of the Mortgage Loans other than the NCB, FSB Loans and the MM
Loans, the earlier of (i) the 10th day of the month in which such Distribution
Date occurs or, if such day is not a Business Day, the immediately preceding
Business Day, and (ii) the 5th Business Day prior to the related Distribution
Date, commencing November 8, 2005, (b) with respect to any Distribution Date and
any of the NCB, FSB Loans, the earlier of (i) the 11th day of the month in which
such Distribution Date occurs or, if such day is not a Business Day, the
immediately preceding Business Day and (ii) the 4th Business Day prior to the
related Distribution Date, commencing November 9, 2005 or (c) with respect to
any Distribution Date and any of the MM Loans, the 10th day of the month in
which such Distribution Date occurs or, if such day is not a Business Day, the
immediately following Business Day, commencing November 10, 2005.
"Directly Operate" means, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management of
such REO Property, the holding of such REO Property primarily for sale to
customers (other than a sale of an REO Property pursuant to and in accordance
with Section 9.15) or the performance of any construction work thereon, in each
case other than through an Independent Contractor; provided, however, that the
Trustee (or the applicable Special Servicer on behalf of the Trustee) shall not
be considered to Directly Operate an REO Property solely because the Trustee (or
the applicable Special Servicer on behalf of the Trustee) establishes rental
terms, chooses tenants, enters into or renews leases, deals with taxes and
insurance, or makes decisions as to repairs, tenant improvements or capital
expenditures with respect to such REO Property (including, without limitation,
construction activity to effect repairs or in connection with leasing activity)
or undertakes any ministerial action incidental thereto.
"Discount Rate" means the rate which, when compounded monthly, is
equivalent to the Treasury Rate when compounded semi-annually. The "Treasury
Rate," unless otherwise set forth in the Mortgage Loan documents, is the yield
calculated by the linear interpolation of the yields, as reported in Federal
Reserve Statistical Release H.15--Selected Interest Rates under the heading
"U.S. government securities/Treasury constant maturities" for the week ending
prior to the date of the relevant principal prepayment, of U.S. Treasury
constant maturities with a maturity date (one longer and one shorter) most
nearly approximating the maturity date (or the Anticipated Repayment Date, if
applicable) of the Mortgage Loan prepaid. If Release H.15 is no longer
published, the applicable Master Servicer will select a comparable publication
to determine the Treasury Rate.
"Disqualified Organization" means any of (i) the United States, any
State or any political subdivision thereof, or any agency or instrumentality of
any of the foregoing (other than an instrumentality which is a corporation if
all of its activities are subject to tax and, except for FHLMC, a majority of
its board of directors is not selected by any such governmental unit), (ii) a
foreign government, international organization or any agency or instrumentality
of either of the foregoing, (iii) an organization (except certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from tax
imposed by Chapter 1 of the Code (unless such organization is subject to the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381 of the Code,
and (v) any other Person so designated by the Master Servicer based upon an
Opinion of Counsel that the holding of an ownership interest in a Residual
Certificate by such Person may cause any of the REMIC Pools, or any Person
having an Ownership Interest in any Class of Certificates, other than such
Person, to incur a liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the transfer of an ownership interest in
a Residual Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"Distributable Certificate Interest" means, with respect to any
Distribution Date and any Class of Certificates (other than the Class A-3-1FL
Certificates, Class EI Certificates, Class EI-L3 Certificates and the Residual
Certificates) or Interests (including the Class A-3-1FL Regular Interest), the
sum of (A) Accrued Certificate Interest in respect of such Class or Interest,
reduced (to not less than zero) by (i) any Net Aggregate Prepayment Interest
Shortfalls for such Class of Certificates or Interests, allocated on such
Distribution Date to such Class or Interest pursuant to Section 6.7, and (ii)
Realized Losses allocated on such Distribution Date to reduce the Distributable
Certificate Interest payable to such Class or Interest pursuant to Section 6.6,
plus (B) the Unpaid Interest, plus (C) if the Aggregate Certificate Balance is
reduced because of a diversion of principal in accordance with Section
5.2(a)(II)(iv), and there is a subsequent recovery of amounts as described in
Section 6.6(c)(i), then interest at the applicable Pass-Through Rate that would
have accrued and been distributable with respect to the amount by which the
Aggregate Certificate Balance was so reduced, which interest shall accrue from
the date that the related Realized Loss is allocated through the end of the
Interest Accrual Period related to the Distribution Date on which such amounts
are subsequently recovered.
"Distribution Account" means the Distribution Account maintained by
the Paying Agent on behalf of the Trustee, in accordance with the provisions of
Section 5.3, which account shall be an Eligible Account.
"Distribution Date" means the 15th day of each month or, if such day
is not a Business Day, the next succeeding Business Day, commencing November 15,
2005.
"Due Date" means, with respect to a Mortgage Loan, the date on which
a Scheduled Payment is first due without the application of grace periods.
"Eligible Account" means an account (or accounts) that is any of the
following: (i) maintained with a depository institution or trust company whose
(A) commercial paper, short-term unsecured debt obligations or other short-term
deposits are rated at least "P-1" by Moody's and "A-1" by S&P, if the deposits
are to be held in the account for 30 days or less, or (B) long term unsecured
debt obligations are rated at least "Aa3" by Moody's and "AA-" (or "A" (without
regard to any plus or minus), if the short-term unsecured debt obligations are
rated at least "A-1") by S&P, if the deposits are to be held in the account more
than 30 days, (ii) a segregated trust account or accounts maintained in the
trust department of the Trustee, the Paying Agent or other financial institution
having a combined capital and surplus of at least $50,000,000 and subject to
regulations regarding fiduciary funds on deposit similar to Title 12 of the Code
of Federal Regulations Section 9.10(b), (iii) an account or accounts of a
depository institution acceptable to the Rating Agencies, as evidenced by Rating
Agency Confirmation with respect to the use of any such account as a Certificate
Account or the Distribution Account or in the case of Escrow Accounts with
respect to NCB, FSB Loans, any account maintained with NCB, FSB (provided that
NCB, FSB has a combined capital and surplus of at least $40,000,000), or (iv)
with respect to the Primary Servicer for the MM Loans, the Centennial Government
Trust, until the date that is 60 days after the Closing Date.
"Eligible Investments" means any one or more of the following
financial assets or other property:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America,
FNMA, FHLMC or any agency or instrumentality of the United States of
America the obligations of which are backed by the full faith and credit
of the United States of America; provided that any obligation of FNMA or
FHLMC, other than an unsecured senior debt obligation of FNMA or FHLMC,
shall be an Eligible Investment only if Rating Agency Confirmation is
obtained with respect to such investment;
(ii) demand or time deposits in, unsecured certificates of deposit
of, money market deposit accounts of, or bankers' acceptances issued by,
any depository institution or trust company (including the Trustee, the
Master Servicers, the Special Servicers, the Paying Agent or any Affiliate
of a Master Servicer, a Special Servicer, the Paying Agent or the Trustee,
acting in its commercial capacity) incorporated or organized under the
laws of the United States of America or any State thereof and subject to
supervision and examination by federal or state banking authorities, so
long as the commercial paper or other short-term debt obligations of such
depository institution or trust company are rated "Prime-1" by Moody's and
"A-1" (without regard to any plus or minus) by S&P or the long-term
unsecured debt obligations of such depository institution or trust company
have been assigned a rating by each Rating Agency at least equal to "Aa2"
by Moody's and "AA-" by S&P or its equivalent or, in each case, if not
rated by a Rating Agency, then such Rating Agency has issued a Rating
Agency Confirmation;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a remaining
maturity of one year or less and where such repurchase obligation has been
entered into with a depository institution or trust company (acting as
principal) described in clause (ii) above and where such repurchase
obligation will mature prior to the Business Day preceding the next date
upon which, as described in this Agreement, such amounts are required to
be withdrawn from a Certificate Account and which meets the minimum rating
requirement for such entity described above (or for which Rating Agency
Confirmation is obtained with respect to such ratings);
(iv) debt obligations (other than stripped bonds or stripped
coupons) bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States of America or any state
thereof, which securities are rated in one of the two highest rating
categories by Moody's and at least "AA" by S&P, unless otherwise specified
in writing by the Rating Agency; provided that securities issued by any
particular corporation will not be Eligible Investments to the extent that
investment therein will cause the then-outstanding principal amount of
securities issued by such corporation and held in a Certificate Account to
exceed 5% of the sum of the aggregate Certificate Principal Balance of the
Principal Balance Certificates and the aggregate principal amount of all
Eligible Investments in the Certificate Account;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof)
rated "Prime-1" by Moody's and "A-1" (without regard to any plus or minus)
by S&P (or for which Rating Agency Confirmation is obtained with respect
to such ratings);
(vi) units of investment funds (including money market funds) that
are rated in the highest long-term category by Moody's and "AAAm" by S&P
(or if not rated by any such Rating Agency, then such Rating Agency has
issued a Rating Agency Confirmation);
(vii) guaranteed reinvestment agreements maturing within 365 days or
less issued by any bank, insurance company or other corporation whose
long-term unsecured debt rating is not less than "Aa2" by Moody's and "AA"
(or its equivalent) by S&P, or for which Rating Agency Confirmation is
obtained with respect to such ratings; provided that, with respect to S&P,
such agreements state that funds may be withdrawn at par without penalty;
(viii) any money market funds (including those managed or advised by
the Paying Agent or its Affiliates) that maintain a constant asset value
and that are rated "Aaa" (or its equivalent) by Moody's (if so rated by
Moody's) and "AAAm" or "AAAm-G" (or its equivalent) by S&P, and any other
demand, money-market or time deposit, or any other obligation, security or
investment, with respect to which Rating Agency Confirmation has been
obtained; and
(ix) such other investments bearing interest or sold at a discount,
earning a return "in the nature of interest" within the meaning of
Treasury Regulation Section 1.860G-2(g)(1)(i) (as evidenced by an Opinion
of Counsel delivered to the Trustee and the Paying Agent by the applicable
Master Servicer or Special Servicer at the applicable Master Servicer's or
Special Servicer's expense), as are acceptable to the Rating Agencies (as
evidenced by Rating Agency Confirmation) and treated as "permitted
investments" that are "cash flow investments" under Section 860G(a)(5) of
the Code;
provided (A) such investment is held for a temporary period pursuant to Section
1.860G-2(g)(i) of the Treasury Regulations, (B) such investment is payable by
the obligor in U.S. dollars, and (C) that no such instrument shall be an
Eligible Investment (1) if such instrument evidences either (a) a right to
receive only interest payments or only principal payments with respect to the
obligations underlying such instrument or (b) a right to receive both principal
and interest payments derived from obligations underlying such instrument and
the principal and interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, or (2) if it may be redeemed at a price below the
purchase price or (3) if it is not treated as a "permitted investment" that is a
"cash flow investment" under Section 860G(a)(5) of the Code; and provided,
further, that any such instrument shall have a maturity date no later than the
date such instrument is required to be used to satisfy the obligations under
this Agreement, and, in any event, shall not have a maturity in excess of one
year; any such instrument must have a predetermined fixed dollar of principal
due at maturity that cannot vary or change; if rated, the obligation must not
have an "r" highlighter affixed to its rating; interest on any variable rate
instrument shall be tied to a single interest rate index plus a single fixed
spread (if any) and move proportionally with that index; and provided, further,
that no amount beneficially owned by any REMIC Pool (including any amounts
collected by the Master Servicers but not yet deposited in the Certificate
Accounts) may be invested in investments treated as equity interests for Federal
income tax purposes. No Eligible Investments shall be purchased at a price in
excess of par. For the purpose of this definition, units of investment funds
(including money market funds) shall be deemed to mature daily.
"Environmental Insurance Policy" shall mean, with respect to any
Mortgage Loan or the related Mortgaged Property or REO Property, any insurance
policy covering pollution conditions and/or other environmental conditions that
is maintained from time to time in respect of such Mortgage Loan, Mortgaged
Property or REO Property, as the case may be, for the benefit of, among others,
the Trustee on behalf of the Certificateholders.
"Environmental Laws" means any and all federal, state and local
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions, now or hereafter in effect, relating to health or the
environment or to emissions, discharges or releases of chemical substances,
including, without limitation, any and all pollutants, contaminants, petroleum
or petroleum products, asbestos or asbestos-containing materials,
polychlorinated biphenyls, urea-formaldehyde insulation, radon, industrial,
toxic or hazardous substances or wastes, into the environment, including,
without limitation, ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use, labeling,
registration, treatment, storage, disposal, transport or handling of any of the
foregoing substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"Escrow Account" means an account established by or on behalf of the
Master Servicer pursuant to Section 8.3(e).
"Escrow Amount" means any amount payable with respect to a Mortgage
Loan for taxes, assessments, water rates, Standard Hazard Insurance Policy
premiums, ground lease payments, reserves for capital improvements, deferred
maintenance, repairs, tenant improvements, leasing commissions, rental
achievements, environmental matters and other reserves or comparable items.
"Euroclear" means the Euroclear system.
"Event of Default" has the meaning set forth in Section 8.28(b).
"Excess Interest" means, with respect to an ARD Loan if such ARD
Loan is not prepaid in full on or before its Anticipated Repayment Date, the
excess, if any of (i) interest accrued at the rate of interest applicable to
such Mortgage Loan after such Anticipated Repayment Date (plus any interest on
such interest as may be provided for under the Mortgage Loan documents) over
(ii) interest accrued at the rate of interest applicable to such Mortgage Loan
before such Anticipated Repayment Date. Excess Interest on an ARD Loan is an
asset of the Trust, but shall not be an asset of any REMIC Pool formed
hereunder.
"Excess Interest Sub-account" means an administrative account deemed
to be a sub-account of the Distribution Account, in accordance with the
provisions of Section 5.3. The Excess Interest Sub-account shall not be an asset
of any REMIC Pool formed hereunder.
"Excess Liquidation Proceeds" means, with respect to any Mortgage
Loan, the excess of (i) Liquidation Proceeds of a Mortgage Loan or related REO
Property, over (ii) the amount that would have been received if a Principal
Prepayment in full had been made with respect to such Mortgage Loan on the date
such proceeds were received plus accrued and unpaid interest with respect to
such Mortgage Loan and all expenses (including Additional Trust Expenses and
Unliquidated Advances) with respect to such Mortgage Loan.
"Excess Servicing Fee" means, with respect to the Mortgage Loans for
which an "excess servicing fee rate" is designated on the Mortgage Loan
Schedule, the monthly fee payable to the parties set forth on Exhibit J hereto
or their successors and assigns, as holders of excess servicing rights, which
fee shall accrue on the Scheduled Principal Balance of each such Mortgage Loan
immediately prior to the Due Date occurring in each month at the per annum rate
(determined in the same manner as the applicable Mortgage Rate for such Mortgage
Loan is determined for such month) specified on the Mortgage Loan Schedule (the
"Excess Servicing Fee Rate"). Each holder of a right to receive Excess Servicing
Fees is entitled to Excess Servicing Fees only with respect to the Mortgage
Loans as indicated on Exhibit J hereto.
"Exchange Certification" means an Exchange Certification
substantially in the form set forth in Exhibit H hereto executed by a holder of
an interest in a Regulation S Global Certificate or a Rule 144A IAI Global
Certificate, as applicable.
"Expense Loss" means a loss realized upon payment by the Trust of an
Additional Trust Expense.
"Extension" has the meaning set forth in Section 9.15(a).
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or any
successor thereto.
"Final Certification" has the meaning set forth in Section 2.2.
"Final Prospectus Supplement" has the meaning set forth in the
Preliminary Statement hereto.
"Final Rated Distribution Date" means, with respect to each rated
Class of Certificates, the Distribution Date in September 2042.
"Final Recovery Determination" means a determination with respect
to: (i) any Mortgage Loan other than a Specially Serviced Mortgage Loan, by the
applicable Master Servicer in consultation with the applicable Special Servicer
and (ii) with respect to any Specially Serviced Mortgage Loan (including a
Mortgage Loan that became an REO Property) by the applicable Special Servicer,
in each case, in its good faith discretion, consistent with the Servicing
Standard, that all Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds, Purchase Proceeds and other payments or recoveries which the
applicable Master Servicer or the applicable Special Servicer, as the case may
be, expects to be finally recoverable on such Mortgage Loan, without regard to
any obligation of such Master Servicer or the Trustee, as the case may be, to
make payments from its own funds pursuant to Article IV hereof, have been
recovered. With respect to each Mortgage Loan that is cross-collateralized by
Mortgaged Properties securing other Mortgage Loans, all of the Mortgaged
Properties and other security must be considered in connection with any such
Final Recovery Determination. The applicable Special Servicer shall be required
to provide the applicable Master Servicer with prompt written notice of any
Final Recovery Determination with respect to any Specially Serviced Mortgage
Loan or REO Mortgage Loan upon making such determination. The applicable Master
Servicer shall promptly notify the Trustee and the Paying Agent of such
determination and the Paying Agent shall deliver a copy of such notice to each
Rating Agency.
"Final Scheduled Distribution Date" means, for each Class of rated
Certificates, the Distribution Date on which such Class would be paid in full if
payments were made on the Mortgage Loans in accordance with their terms, except
that the ARD Loan is assumed to be repaid on its Anticipated Repayment Date.
"Fitch" means Fitch Ratings, Inc. or its successor in interest.
"Fixed Interest Distribution" means with respect to the Class
A-3-1FL Regular Interest, the payments of interest required to be made in
respect of each Distribution Date, commencing in November 2005, by the Trustee
to the Swap Counterparty pursuant to the Swap Contract at a rate equal to the
Pass-Through Rate of the Class A-3-1FL Regular Interest on the Floating Rate
Certificate Notional Amount subject to reduction in accordance with the Swap
Contract.
"Floating Rate Account" means the Eligible Account or Accounts
established and maintained by the Paying Agent on behalf of the Trustee with
respect to the Class A-3-1FL Certificates, which shall be entitled "Xxxxx Fargo
Bank, N.A., as Trustee, in trust for Holders of Xxxxxx Xxxxxxx Capital I Trust
2005-IQ10, Floating Rate Account, Class A-3-1FL" and "GMAC Commercial Mortgage
Corporation, as General Master Servicer for Xxxxx Fargo Bank, N.A., as Trustee
for the Holders of Xxxxxx Xxxxxxx Capital I Trust 2005-IQ10, Floating Rate
Account, Class A-3-1FL"; provided, that the Floating Rate Account may be a
subaccount of the Distribution Account or the Certificate Account. The Floating
Rate Account shall be an asset of the Class A-3-1FL Grantor Trust.
"Floating Rate Certificate Notional Amount" means a notional amount
equal to the Certificate Balance of the Class A-3-1FL Regular Interest.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"General Master Servicer" means GMAC Commercial Mortgage Corporation
and its permitted successors or assigns.
"General Master Servicer's Contact Numbers" means (a) (000) 000-0000
with respect to facsimile transmissions and (b) (000) 000-0000 with respect to
telephone calls, or in each case, at such other telephone number provided by the
General Master Servicer.
"General Special Servicer" means X.X. Xxxxxx Company, Inc., or any
successor General Special Servicer as herein provided, including without
limitation any successor General Special Servicer appointed pursuant to Section
9.39.
"Global Certificate" means any Rule 144A IAI Global Certificate,
Regulation S Temporary Global Certificate or Regulation S Permanent Global
Certificate.
"Grantor Trust Provisions" shall mean those provisions of the Code
relating to grantor trusts, which appear in subpart E, Part I of subchapter J,
and related provisions, and proposed, temporary and final Treasury regulations,
including Treasury Regulations Section 301.7701-4(c)(2), and any published
rulings, notice and announcements promulgated thereunder, as the foregoing may
be in effect from time to time.
"Group PB REMIC I Regular Interests" means, collectively, all of the
REMIC I Regular Interests other than the Group X-Y REMIC I Regular Interests,
which are the REMIC I Regular Interests with principal balances.
"Group X-Y REMIC I Regular Interests" means, collectively, the REMIC
I Regular Interests, which represent interests in the Class X-Y Strip Rates with
respect to the Specially Designated Co-op Mortgage Loans, which are the REMIC I
Regular Interests without principal balances (but have notional amounts for
purposes of accruing interest).
"Holder" means the Person in whose name a Certificate is registered
on the Certificate Register.
"IAI Definitive Certificate" means, with respect to any Class of
Certificates sold to Institutional Accredited Investors who are not Qualified
Institutional Buyers, a Certificate in definitive, fully registered certificated
form without interest coupons.
"Independent" means, when used with respect to any Accountants, a
Person who is "independent" within the meaning of Rule 2-01(B) of the
Commission's Regulation S-X. Independent means, when used with respect to any
other Person, a Person who (A) is in fact independent of another specified
Person and any Affiliate of such other Person, (B) does not have any material
direct or indirect financial interest in such other Person or any Affiliate of
such other Person, (C) is not connected with such other Person or any Affiliate
of such other Person as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions and (D) is not a member
of the immediate family of a Person defined in clause (B) or (C) above.
"Independent Contractor" means, either (i) with respect to any
Mortgage Loan (A) that is not a Specially Serviced Mortgage Loan, any Person
designated by the applicable Master Servicer (other than any Master Servicer,
but which may be an Affiliate of such Master Servicer), or (B) that is a
Specially Serviced Mortgage Loan, any Person designated by the applicable
Special Servicer that would be an "independent contractor" with respect to a
REMIC Pool within the meaning of Section 856(d)(3) of the Code if such REMIC
Pool were a real estate investment trust (except that the ownership test set
forth in such Section shall be considered to be met by any Person that owns,
directly or indirectly, 35% or more of the Aggregate Certificate Balance or
Notional Amount, as the case may be, of any Class of the Certificates (other
than the Residual Certificates), a Percentage Interest of 35% or more in the
Residual Certificates or such other interest in any Class of the Certificates or
of the applicable REMIC Pool as is set forth in an Opinion of Counsel, which
shall be at no expense to the Trustee or the Trust) so long as such REMIC Pool
does not receive or derive any income from such Person and provided that the
relationship between such Person and such REMIC is at arm's length, all within
the meaning of Treasury Regulations Section 1.856-4(b)(5), or (ii) any other
Person (including a Master Servicer or a Special Servicer) upon receipt by the
Trustee of an Opinion of Counsel, which shall be at the expense of the Person
delivering such opinion to the Trustee, to the effect that the taking of any
action in respect of any REO Property by such Person, subject to any conditions
therein specified, that is otherwise herein contemplated to be taken by an
Independent Contractor will not cause such REO Property to cease to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(determined without regard to the exception applicable for purposes of Section
860D(a) of the Code), or cause any income realized in respect of such REO
Property to fail to qualify as Rents from Real Property.
"Initial Certification" has the meaning set forth in Section 2.2.
"Initial Deposit" means the amount of all collections made on the
Mortgage Loans from the Cut-Off Date to and excluding the Closing Date.
"Initial LTV Co-op Basis" shall mean, with respect to any Co-op
Mortgage Loan, the related loan-to-value ratio specified under the heading
"Cut-Off Date LTV" in Appendix II to the Final Prospectus Supplement.
"Inspection Report" means a report substantially in the form of, and
containing the information called for in, the downloadable form of the "Property
Inspection Form" available as of January 31, 2006 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 approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Property Inspection Form" available as of the Closing Date on the
CMSA Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"Institutional Accredited Investor" means an institutional
accredited investor qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the 1933 Act.
"Insurance Policies" means, collectively, any Standard Hazard
Insurance Policy, flood insurance policy, title insurance policy, terrorism
insurance policy or Environmental Insurance Policy relating to the Mortgage
Loans or the Mortgaged Properties in effect as of the Closing Date or thereafter
during the term of this Agreement.
"Insurance Proceeds" means amounts paid by the insurer under any
Insurance Policy (other than amounts required to be paid over to the Mortgagor
(or used to restore the related Mortgaged Property) pursuant to law, the related
Mortgage Loan or the Servicing Standard).
"Insured Environmental Event" has the meaning set forth in Section
9.1(f).
"Interest" means a REMIC I Regular Interest, a REMIC II Regular
Interest or the Class A-3-1FL Regular Interest, as applicable.
"Interest Accrual Period" means, with respect to each Distribution
Date, (i) for each Class of REMIC Regular Certificates (other than the Class
A-3-1FL Certificates), the Class A-3-1FL Regular Interest and, if the Swap
Contract or any replacement swap contract is no longer in effect or if a Swap
Default has occurred and is continuing, with respect to the Class A-3-1FL
Certificates, the calendar month immediately preceding the month in which such
Distribution Date occurs or (ii) for the Class A-3-1FL Certificates, for so long
as the Swap Contract or any replacement swap contract is in effect and no Swap
Default has occurred and is continuing, the period from (and including) the
prior Distribution Date (or the Closing Date, in the case of the first such
period) and ending on (and including) the day before the current Distribution
Date.
"Interest Reserve Account" means that Interest Reserve Account
maintained by the Master Servicer pursuant to Section 5.1(a), which account
shall be an Eligible Account.
"Interest Reserve Amount" has the meaning set forth in Section
5.1(d).
"Interest Reserve Loans" shall mean the Mortgage Loans which bear
interest other than on the basis of a 360-day year consisting of twelve 30-day
months.
"Interest Reset Date" means the day that is two Banking Days prior
to the start of the related Interest Accrual Period.
"Interested Person" means, as of any date of determination, the
Master Servicers, the Special Servicers, the Depositor, the holder of any
related Junior Indebtedness (with respect to any particular Mortgage Loan), a
holder of 50% or more of the Controlling Class, the Operating Adviser, any
Independent Contractor engaged by a Master Servicer or a Special Servicer
pursuant to this Agreement, or any Person actually known to a Responsible
Officer of the Trustee to be an Affiliate of any of them.
"Investor-Based Exemption" means any of Prohibited Transaction Class
Exemption ("PTCE") 84-14 (for transactions by independent "qualified
professional asset managers"), PTCE 90-1 (for transactions by insurance company
pooled separate accounts), PTCE 91-38 (for transactions by bank collective
investment funds), PTCE 95-60 (for transactions by insurance company general
accounts) or PTCE 96-23 (for transactions effected by "in-house asset
managers"), or any comparable exemption available under Similar Laws.
"ISDA" means the International Swap Dealers Association.
"IXIS" has the meaning assigned in the Preliminary Statement hereto.
"IXIS Loans" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement II and shown on
Schedule II hereto.
"IXIS Sub-Servicer" means X.X. Xxxxxx & Company of Texas, LP, and
Holiday Xxxxxxxx Xxxxxx, X.X., each in its capacity as sub-servicer of the IXIS
Loans pursuant to each IXIS Sub-Servicing Agreement.
"IXIS Sub-Servicing Agreement" means each agreement between X.X.
Melody & Company of Texas, LP, and Holiday Xxxxxxxx Xxxxxx, X.X., respectively,
and the Master Servicer, each dated as of October 1, 2005, under which such IXIS
Sub-Servicers service the IXIS Mortgage Loans set forth on the schedule attached
thereto.
"Junior Indebtedness" means any indebtedness of any Mortgagor that
is secured by a lien that is junior in right of payment to the lien of the
Mortgage securing the related Mortgage Note.
"L-3 Communications Mortgage Loan" means the Mortgage Loans
designated on the Mortgage Loan Schedule as Mortgage Loan No. 3.
"L-3 Communications Notional Amount" means, as of any Due Date in
respect of the L-3 Communications Mortgage Loan, the Principal Balance of the
L-3 Communications Mortgage Loan.
"Late Collections" means, with respect to any Mortgage Loan, all
amounts received during any Collection Period, whether as late payments or as
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, Purchase
Proceeds or otherwise, that represent payments or collections of Scheduled
Payments due but delinquent for a previous Collection Period and not previously
recovered.
"Late Fees" means a fee payable to the applicable Master Servicer or
the applicable Special Servicer, as the case may be, to the extent actually
collected from the Mortgagor as provided in the related Mortgage Loan, if
applicable, in connection with a late payment made by such Mortgagor.
"LIBOR" means with respect to each Interest Accrual Period, the per
annum rate for deposits in U.S. dollars for a period of one month, which appears
on the Telerate page 3750 as the "London Interbank Offering Rate" as of 11:00
a.m., London time, on the Interest Reset Date. If such rate does not appear on
said Telerate page 3750, LIBOR shall be the arithmetic mean of the offered
quotations obtained by the Swap Counterparty from the principal London office of
four major banks in the London interbank market selected by the Swap
Counterparty in its sole discretion (each, a "Reference Bank") for rates at
which deposits in U.S. dollars are offered to prime banks in the London
interbank market for a period of one month in an amount that is representative
for a single transaction in the relevant market at the relevant time as of
approximately 11:00 a.m., London time, on the Interest Reset Date. If fewer than
two Reference Banks provide the Swap Counterparty with such quotations, LIBOR
shall be the rate per annum which the Swap Counterparty determines to be the
arithmetic mean of the rates quoted by major banks in New York City, New York
selected by the Swap Counterparty at approximately 11:00 a.m. New York City time
on the first day of the Interest Accrual Period for loans in U.S. dollars to
leading European banks for a period of one month in an amount that is
representative for a single transaction in the relevant market at the relevant
time. LIBOR for the initial Interest Accrual Period is 4.00588%.
"Liquidation Expenses" means reasonable and direct expenses incurred
by the applicable Special Servicer on behalf of the Trust in connection with the
enforcement and liquidation of any Specially Serviced Mortgage Loan or REO
Property acquired in respect thereof including, without limitation, reasonable
legal fees and expenses, appraisal fees, committee or referee fees, property
manager fees, and, if applicable, brokerage commissions and conveyance taxes for
such Specially Serviced Mortgage Loan. All Liquidation Expenses relating to
enforcement and disposition of the Specially Serviced Mortgage Loan shall be (i)
paid out of income from the related REO Property, to the extent available, (ii)
paid out of related proceeds from liquidation or (iii) advanced by the
applicable Master Servicer or Special Servicer, subject to Section 4.4 and
Section 4.6(d) hereof, as a Servicing Advance.
"Liquidation Fee" means a fee equal to the product of (x) 1.00% and
(y) the Liquidation Proceeds received in connection with full or partial
liquidation of a Specially Serviced Mortgage Loan or related REO Property and
any Condemnation Proceeds or Insurance Proceeds received by the Trust; provided,
however, that (A) in the case of a final disposition consisting of the
repurchase of a Mortgage Loan or REO Property by a Seller pursuant to Section
2.3, such fee will only be paid by such Seller and due to a Special Servicer if
repurchased after the date that is 180 days or more after the applicable Seller
receives notice of the breach or defect causing the repurchase and (B) in the
case of a repurchase of a Mortgage Loan by a related B note holder or mezzanine
lender, such fee will only be due to a Special Servicer if repurchased 60 days
after a Master Servicer, Special Servicer or Trustee receives notice of the
default causing the repurchase.
"Liquidation Proceeds" means (i) with respect to the sale or
liquidation of a Mortgage Loan or related REO Property (other than pursuant to
Section 2.3), the proceeds of such sale or liquidation net of Liquidation
Expenses (to the extent not otherwise paid pursuant to Section 4.6(c)) and (ii)
with respect to the repurchase of a Mortgage Loan or an REO Mortgage Loan
pursuant to Section 2.3, the Purchase Price of such Mortgage Loan or REO
Mortgage Loan (or such allocable portion) at the time of such repurchase.
"Liquidation Realized Loss" means, with respect to each Mortgage
Loan or REO Property, as the case may be, as to which a Cash Liquidation or REO
Disposition has occurred, an amount equal to the sum, without duplication, of
(A) the Principal Balance of the Mortgage Loan (or deemed Principal Balance, in
the case of an REO Mortgage Loan) as of the date of the Cash Liquidation or REO
Disposition (adjusted in accordance with Section 6.6(c)(i)), plus (B) unpaid
interest and interest accrued thereon at the applicable Mortgage Rate (including
interest accrued and unpaid on the portion of the Principal Balance added in
accordance with Section 6.6(c)(i), which interest shall accrue from the date of
the reduction in the Principal Balance resulting from the allocation of a
Realized Loss incurred pursuant to Section 6.6(b)(i)), plus (C) any expenses
(including Additional Trust Expenses) incurred in connection with such Mortgage
Loan that are payable or reimbursable to any Person, other than amounts
previously treated as Expense Losses or included in the definition of
Liquidation Expenses minus the sum of (i) REO Income allocated as recoveries of
principal or interest on the related Mortgage Loan, and (ii) with respect to any
Mortgage Loan, Liquidation Proceeds, Late Collections and all other amounts
received from the related Mortgagor and received during the Collection Period in
which such Cash Liquidation or REO Disposition occurred. REO Income and
Liquidation Proceeds shall be applied in accordance with Section 1.2(b) hereof.
"Loan Group" means either Loan Group 1 or Loan Group 2, as the case
may be.
"Loan Group 1" means all of the Mortgage Loans that are Loan Group 1
Mortgage Loans and any successor REO Mortgage Loans with respect thereto.
"Loan Group 1 Mortgage Loan" means any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 1.
"Loan Group 1 Principal Distribution Amount" means, for any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Mortgage Loans included in Loan Group 1.
"Loan Group Principal Distribution Amount" means the Loan Group 1
Principal Distribution Amount or the Loan Group 2 Principal Distribution Amount,
as applicable.
"Loan Group 2" means all of the Mortgage Loans that are Loan Group 2
Mortgage Loans and any successor REO Mortgage Loans with respect thereto.
"Loan Group 2 Mortgage Loan" means any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 2.
"Loan Group 2 Principal Distribution Amount" means, for any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Mortgage Loans included in Loan Group 2.
"Loan-to-Value Ratio" means, as of any date with respect to a
Mortgage Loan, the fraction, expressed as a percentage, the numerator of which
is the Principal Balance of such Mortgage Loan at the date of determination and
the denominator of which is the Appraised Value of the Mortgaged Property as
shown on the most recent Appraisal or valuation of the Mortgaged Property which
is available as of such date.
"Lock-Box Account" has the meaning set forth in Section 8.3(g).
"Lock-Box Agreement" means, with respect to any Mortgage Loan, any
lock box agreement relating to such Mortgage Loan among the related Mortgagor, a
depositary institution and the Master Servicer (or a Primary Servicer or Sub
Servicer on its behalf) pursuant to which a Lock-Box Account is created.
"Losses" has the meaning set forth in Section 12.4.
"MAI" means Member of the Appraisal Institute.
"Master Servicer" means: (a) with respect to any Mortgage Loan
(other than an NCB, FSB Loan), any REO Property acquired by the Trust with
respect to a Mortgage Loan (other than an NCB, FSB Loan) and any matters
relating to the foregoing, the General Master Servicer; and (b) with respect to
any NCB, FSB Loan, any REO Property acquired by the Trust with respect to an
NCB, FSB Loan and any matters relating to the foregoing, the NCB Master
Servicer.
"Master Servicer Consent Matter" has the meaning set forth in
Section 8.3(a).
"Master Servicer Remittance Date" means, for each Distribution Date,
the Business Day immediately preceding such Distribution Date.
"Master Servicing Fee" means for each calendar month, as to each
Mortgage Loan, an amount equal to the Master Servicing Fee Rate applicable to
such month (determined in the same manner (other than the rate of accrual) as
the applicable Mortgage Rate is determined for such Mortgage Loan for such
month) multiplied by the Scheduled Principal Balance of such Mortgage Loan
immediately before the Due Date occurring in such month, subject to reduction in
respect of Compensating Interest, as set forth in Section 8.10(c). For the
avoidance of doubt, Master Servicing Fees are in addition to Primary Servicing
Fees.
"Master Servicing Fee Rate" means, with respect to each Mortgage
Loan, the rate per annum specified as such on the Mortgage Loan Schedule.
"Material Breach" has the meaning set forth in Section 2.3(a).
"Material Document Defect" has the meaning set forth in Section
2.3(a).
"Maturity Date" means, with respect to any Mortgage Loan as of any
date of determination, the date on which the last payment of principal is due
and payable under the related Mortgage Loan, after taking into account all
Principal Prepayments received and any Deficient Valuation, Debt Service
Reduction Amount or modification of the Mortgage Loan occurring prior to such
date of determination, but without giving effect to (i) any acceleration of the
principal of such Mortgage Loan or (ii) any grace period permitted by the
related Mortgage Loan.
"MM" has the meaning assigned in the Preliminary Statement hereto.
"MM Loans" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement III and shown on
Schedule III hereto.
"Modification Fee" means a fee, if any, (i) collected from a
Mortgagor by the applicable Master Servicer in connection with a modification of
a Mortgage Loan other than a Specially Serviced Mortgage Loan or (ii) collected
by the applicable Special Servicer in connection with the modification of a
Specially Serviced Mortgage Loan.
"Modification Loss" means, with respect to each Mortgage Loan (i) a
decrease in the Principal Balance of such Mortgage Loan, as a result of a
modification thereof in accordance with the terms hereof, (ii) any expenses
connected with such modification, to the extent (x) reimbursable to the Trustee,
the applicable Special Servicer or the applicable Master Servicer and (y) not
recovered from the Mortgagor or (iii) in the case of a modification of such
Mortgage Loan that reduces the Mortgage Rate thereof, the excess, on each Due
Date, of the amount of interest that would have accrued at a rate equal to the
original Mortgage Rate, over interest that actually accrued on such Mortgage
Loan during the preceding Collection Period.
"Money Term" means, with respect to any Mortgage Loan, the Maturity
Date, Mortgage Rate, Principal Balance, amortization term or payment frequency
thereof, or the amount of the scheduled payment thereof, or any provision
thereof requiring the payment of a prepayment premium, yield maintenance payment
or percentage premium in connection with a principal prepayment (and shall not
include late fees or default interest provisions).
"Monthly Certificateholders Report" means a report provided pursuant
to Section 5.4 by the Paying Agent monthly as of the related Determination Date
generally in the form and substance of Exhibit M, which sets forth, to the
extent applicable: (i) the amount, if any, of such distributions to the holders
of each Class of Principal Balance Certificates applied to reduce the respective
Certificate Balances thereof; (ii) the amount of such distribution to holders of
each Class of Certificates allocable to (A) interest accrued at the respective
Pass-Through Rates, less any Net Aggregate Prepayment Interest Shortfalls and
(B) Prepayment Premiums (including Prepayment Premiums distributed in respect of
the Class A-3-1FL Regular Interest and paid to the Swap Counterparty) or Yield
Maintenance Charges; (iii) the number of outstanding Mortgage Loans and the
aggregate Principal Balance and Scheduled Principal Balance of the Mortgage
Loans at the close of business on such Determination Date; (iv) the number and
aggregate Scheduled Principal Balance of Mortgage Loans (A) delinquent 30-59
days, (B) delinquent 60-89 days, (C) delinquent 90 or more days, (D) as to which
foreclosure proceedings have been commenced, or (E) as to which bankruptcy
proceedings have been commenced; (v) with respect to any REO Property included
in the Trust, the Principal Balance of the related Mortgage Loan as of the date
of acquisition of the REO Property and the Scheduled Principal Balance thereof;
(vi) as of the related Determination Date (A) as to any REO Property sold during
the related Collection Period, the date of the related determination by the
applicable Special Servicer that it has recovered all payments which it expects
to be finally recoverable and the amount of the proceeds of such sale deposited
into the Certificate Account, and (B) the aggregate amount of other revenues
collected by the Special Servicer with respect to each REO Property during the
related Collection Period and credited to the Certificate Account, in each case
identifying such REO Property by the loan number of the related Mortgage Loan;
(vii) the Aggregate Certificate Balance or Notional Amount, as the case may be,
of each Class of Certificates before and after giving effect to the distribution
made on such Distribution Date; (viii) the aggregate amount of Principal
Prepayments made during the related Collection Period; (ix) the Pass-Through
Rate applicable to each Class of Certificates for such Distribution Date; (x)
the aggregate amount of the Master Servicing Fee, the Primary Servicing Fee, the
Special Servicing Fee and the Excess Servicing Fees; (xi) the amount of Unpaid
Interest, Realized Losses or Expense Losses, if any, incurred with respect to
the Mortgage Loans, including a breakout by type of such Realized Losses or
Expense Losses; (xii) the aggregate amount of Servicing Advances and P&I
Advances outstanding separately stated that have been made by the applicable
Master Servicer, the applicable Special Servicer and the Trustee; (xiii) the
amount of any Appraisal Reductions effected during the related Collection Period
on a loan-by-loan basis and the total Appraisal Reductions in effect as of such
Distribution Date; (xiv) the amounts received in respect of the Swap Contract or
the amounts paid in respect of the Swap Contract and, if any of such amounts are
less than the full amount required to be paid under the Swap Contract, the
amount of the shortfall; (xv) the identification of any Rating Agency Trigger
Event or Swap Default as of the close of business on the last day of the
immediately preceding calendar month with respect to the Swap Contract
(including, if applicable, the notice required by Section 6.12); (xvi) the
amount of any (x) payment by the Swap Counterparty as a termination payment, (y)
payment to any successor interest rate swap counterparty to acquire a
replacement interest rate swap agreement, and (z) collateral posted in
connection with any Rating Agency Trigger Event; and (xvii) the amount of and
identification of any payments on the Class A-3-1FL Certificates in addition to
the amount of principal and interest due thereon, such as any payment received
in connection with the Swap Contract or any payment of a Prepayment Premium
after the termination of the Swap Contract that is required to be distributed on
the Class A-3-1FL Certificates pursuant to the terms of this Agreement. In the
case of information furnished pursuant to subclauses (i), (ii) and (vii) above,
the amounts shall be expressed in the aggregate and as a dollar amount per
$1,000 of original principal amount of the Certificates for all Certificates of
each applicable Class.
"Moody's" means Xxxxx'x Investors Service, Inc. or its successor in
interest.
"Mortgage" means the mortgage, deed of trust or other instrument
securing a Mortgage Note.
"Mortgage File" means the mortgage documents listed below:
(i) the original Mortgage Note bearing all intervening endorsements,
endorsed in blank or endorsed "Pay to the order of Xxxxx Fargo Bank, N.A.,
as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-IQ10, without recourse,
representation or warranty" or if the original Mortgage Note is not
included therein, then a lost note affidavit and indemnity with a copy of
the Mortgage Note attached thereto;
(ii) the original Mortgage, with evidence of recording thereon, and,
if the Mortgage was executed pursuant to a power of attorney, a certified
true copy of the power of attorney certified by the public recorder's
office, with evidence of recording thereon (if recording is customary in
the jurisdiction in which such power of attorney was executed) or
certified by a title insurance company or escrow company to be a true copy
thereof; provided that if such original Mortgage cannot be delivered with
evidence of recording thereon on or prior to the 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, the Depositor shall deliver or cause
to be delivered to the Trustee a true and correct copy of such Mortgage,
together with (A) in the case of a delay caused by the public recording
office, an Officer's Certificate of the applicable Seller stating that
such original Mortgage has been sent to the appropriate public recording
official for recordation or (B) in the case of an original Mortgage that
has been lost after recordation, a certification by the appropriate county
recording office where such Mortgage is recorded that such copy is a true
and complete copy of the original recorded Mortgage;
(iii) the originals of all agreements modifying a Money Term or
other material modification, consolidation and extension agreements, if
any, with, if applicable, evidence of recording thereon (which are
reflected in the Mortgage Loan Schedule), or if such original
modification, consolidation and extension agreements have been delivered
to the appropriate recording office for recordation and either have not
yet been returned on or prior to the 90th day following the Closing Date
with evidence of recordation thereon or have been lost after recordation,
true copies of such modifications, consolidations and extensions certified
by the applicable Seller together with (A) in the case of a delay caused
by the public recording office, an Officer's Certificate of the applicable
Seller stating that such original modification, consolidation or extension
agreement has been dispatched or sent to the appropriate public recording
official for recordation or (B) in the case of an original modification,
consolidation or extension agreement that has been lost after recordation,
a certification by the appropriate county recording office where such
document is recorded that such copy is a true and complete copy of the
original recorded modification, consolidation or extension agreement, and
the originals of all assumption agreements, if any;
(iv) an original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording, signed by the holder of
record in blank or in favor of "Xxxxx Fargo Bank, N.A., as Trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-IQ10;
(v) originals of all intervening assignments of Mortgage, if any,
with evidence of recording thereon or, if such original assignments of
Mortgage have been delivered to the appropriate recorder's office for
recordation, certified true copies of such assignments of Mortgage
certified by the applicable Seller, or in the case of an original blanket
intervening assignment of Mortgage retained by the applicable Seller, a
copy thereof certified by the applicable Seller or, if any original
intervening assignment of Mortgage has not yet been returned on or prior
to the 90th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with
(A) in the case of a delay caused by the public recording office, an
Officer's Certificate of the applicable Seller stating that such original
intervening assignment of Mortgage has been sent to the appropriate public
recording official for recordation or (B) in the case of an original
intervening assignment of Mortgage that has been lost after recordation, a
certification by the appropriate county recording office where such
assignment is recorded that such copy is a true and complete copy of the
original recorded intervening assignment of Mortgage;
(vi) if the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of
recording thereon or certified by a title insurance company or escrow
company to be a true copy thereof; provided that or, if such Assignment of
Leases has not been returned on or prior to the 90th day following the
Closing Date because of a delay caused by the applicable public recording
office where such Assignment of Leases has been delivered for recordation
or because such original Assignment of Leases has been lost, the Seller
shall deliver or cause to be delivered to the Trustee a true and correct
copy of such Assignment of Leases submitted for recording, together with,
(A) in the case of a delay caused by the public recording office, an
Officer's Certificate (as defined below) of the Seller stating that such
Assignment of Leases has been sent to the appropriate public recording
official for recordation or (B) in the case of an original Assignment of
Leases that has been lost after recordation, a certification by the
appropriate county recording office where such Assignment of Leases is
recorded that such copy is a true and complete copy of the original
recorded Assignment of Leases, in each case together with an original
assignment of such Assignment of Leases, in recordable form, signed by the
holder of record in favor of "Xxxxx Fargo Bank, N.A., as Trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-IQ10," which assignment may be effected in the
related Assignment of Mortgage;
(vii) the original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(viii) the original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, a binder, actual
"marked-up" title commitment, pro forma policy, or an agreement to provide
any of the foregoing pursuant to binding escrow instructions executed by
the title company or its authorized agent with one of the foregoing
attached thereto and, in each case, with the original Title Insurance
Policy to follow within 180 days of the Closing Date, or a copy of any of
the foregoing certified by the title company with the original Title
Insurance Policy to follow within 180 days of the Closing Date, or a
preliminary title report with the original Title Insurance Policy to
follow within 180 days of the Closing Date;
(ix) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and (B)
UCC-2 or UCC-3 financing statements assigning such UCC financing
statements to the Trustee executed and delivered in connection with the
Mortgage Loan;
(x) copies of the related ground lease(s), if any, related to any
Mortgage Loan where the Mortgagor is the lessee under such ground lease
and there is a lien in favor of the mortgagee in such lease;
(xi) copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan;
(xii) either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than
letters of credit representing tenant security deposits which have been
collaterally assigned to the lender), which shall be assigned and
delivered to the Trustee on behalf of the Trust, and applied, drawn,
reduced or released in accordance with documents evidencing or securing
the applicable Mortgage Loan, this Agreement and the applicable Primary
Servicing Agreement or, (B) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than
letters of credit representing tenant security deposits which have been
collaterally assigned to the lender), which shall be held by the
applicable Primary Servicer (or the applicable Master Servicer) on behalf
of the Trustee and applied, drawn, reduced or released in accordance with
documents evidencing or securing the applicable Mortgage Loan, this
Agreement and the applicable Primary Servicing Agreement (it being
understood that each Seller has agreed (a) that the proceeds of such
letter of credit belong to the Trust, (b) to notify, on or before the
Closing Date, the bank issuing the letter of credit that the letter of
credit and the proceeds thereof belong to the Trust, and to use reasonable
efforts to obtain within 30 days (but in any event to obtain within 90
days) following the Closing Date, an acknowledgement thereof by the bank
(with a copy of such acknowledgement to be sent to the Trustee) and (c) to
indemnify the Trust for any liabilities, charges, costs, fees or other
expenses accruing from the failure of the Seller to assign the letter of
credit hereunder). In the case of clause (B) above, each Primary Servicer
(and the General Master Servicer) acknowledges that any letter of credit
held by it shall be held in its capacity as agent of the Trust, and if a
Primary Servicer or a Master Servicer, as applicable, sells its rights to
service the applicable Mortgage Loan, the applicable Primary Servicer or a
Master Servicer, as applicable, will assign the applicable letter of
credit to the Trust or at the direction of the General Special Servicer to
such party as such Special Servicer may instruct, in each case, at the
expense of the Primary Servicer or a Master Servicer, as applicable. The
Primary Servicer (or the applicable Master Servicer) shall indemnify the
Trust for any loss caused by the ineffectiveness of such assignment;
(xiii) the original or a copy of the environmental indemnity
agreement, if any, related to any Mortgage Loan;
(xiv) copies of third-party management agreements, if any, for all
hotels and for such other Mortgaged Properties securing Mortgage Loans
with a Cut-Off Date Principal Balance equal to or greater than
$20,000,000;
(xv) the original of any Environmental Insurance Policy or (i) if
the original is held by the related borrower, a copy thereof, or (ii) the
binder for such Environmental Insurance Policy;
(xvi) a copy of any affidavit and indemnification agreement in favor
of the lender; and
(xvii) with respect to hospitality properties, a copy of any
franchise agreement, franchise comfort letter and applicable assignment or
transfer documents.
"Mortgage Loan" means a Mortgage Note secured by a Mortgage, and all
amendments and modifications thereof, identified on the Mortgage Loan Schedule,
as amended from time to time, and conveyed, transferred, sold, assigned to or
deposited with the Trustee pursuant to Section 2.1 or Section 2.3, and Mortgage
Loan shall also include any Defeasance Loan, any REO Mortgage Loan, unless the
context requires otherwise.
"Mortgage Loan Purchase Agreement" means Mortgage Loan Purchase
Agreement I, Mortgage Loan Purchase Agreement II, Mortgage Loan Purchase
Agreement III, Mortgage Loan Purchase Agreement IV, Mortgage Loan Purchase
Agreement V and Mortgage Loan Purchase Agreement VI, as the case may be.
"Mortgage Loan Purchase Agreement I" means that certain Mortgage
Loan Purchase Agreement between MSMC and the Depositor dated as of October 1,
2005 with respect to the MSMC Loans, a form of which is attached hereto as
Exhibit K-1.
"Mortgage Loan Purchase Agreement II" means that certain Mortgage
Loan Purchase Agreement between IXIS and the Depositor dated as of October 1,
2005 with respect to the IXIS Loans, a form of which is attached hereto as
Exhibit K-2.
"Mortgage Loan Purchase Agreement III" means that certain Mortgage
Loan Purchase Agreement between MM and the Depositor dated as of October 1, 2005
with respect to the MM Loans, a form of which is attached hereto as Exhibit K-3.
"Mortgage Loan Purchase Agreement IV" means that certain Mortgage
Loan Purchase Agreement between NCB, FSB and the Depositor dated as of October
1, 2005 with respect to the NCB, FSB Loans, a form of which is attached hereto
as Exhibit K-4.
"Mortgage Loan Purchase Agreement V" means that certain Mortgage
Loan Purchase Agreement between UCMFI and the Depositor dated as of October 1,
2005 with respect to the UCMFI Loans, a form of which is attached hereto as
Exhibit K-5.
"Mortgage Loan Purchase Agreement VI" means that certain Mortgage
Loan Purchase Agreement between SunTrust and the Depositor dated as of October
1, 2005 with respect to the SunTrust Loans, a form of which is attached hereto
as Exhibit K-6.
"Mortgage Loan Schedule" or "Loan Schedule" means collectively the
schedule attached hereto as Schedule I, which identifies each MSMC Loan, the
schedule attached hereto as Schedule II, which identifies each IXIS Loan, the
schedule attached hereto as Schedule III, which identifies each MM Loan, the
schedule attached hereto as Schedule IV, which identifies each NCB, FSB Loan,
the schedule attached hereto as Schedule V, which identifies each UCMFI Loan and
the schedule attached hereto as Schedule VI, which identifies each SunTrust
Loan, as such schedules may be amended from time to time pursuant to Section
2.3.
"Mortgage Note" means the note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"Mortgage Pool" means all of the Mortgage Loans and any successor
REO Mortgage Loans, collectively.
"Mortgage Rate" means, for a given Mortgage Loan, the per annum rate
at which interest accrues on such Mortgage Loan.
"Mortgaged Property" means the real property, together with
improvements thereto, securing the indebtedness of the Mortgagor under the
related Mortgage Loan.
"Mortgagee" means, with respect to any Mortgage as of any date of
determination, the mortgagee named therein as of such date.
"Mortgagor" means the obligor on a Mortgage Note.
"MSMC" has the meaning assigned in the Preliminary Statement hereto.
"MSMC Loans" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement I and shown on
Schedule I hereto.
"NCB, FSB Subordinate Debt Conditions" means, with respect to a
Mortgagor encumbering a Mortgaged Property relating to a Co-op Mortgage Loan
with a subordinate mortgage, the following conditions: (i) each of the loans, or
the sole loan, to be secured by each such subordinate mortgage is made by NCB,
FSB or any Affiliate thereof (ii) each such subordinate mortgage is expressly
subject and subordinate to the lien of the Mortgage encumbering the Mortgaged
Property in question, (iii) each such subordinate mortgage is expressly made in
compliance with the underwriting standards which NCB, FSB customarily employs in
connection with making subordinate mortgages for its own mortgage loan
portfolio, (iv) as of the date of the closing of the subordinate mortgage loan
in question, the New Loan-to-Value Ratio (as defined below) does not exceed 40%,
(v) NCB, FSB or any Affiliate thereof that originates the subordinate mortgage
loan, executes and delivers to the Trustee for inclusion in the Mortgage File a
subordination agreement with respect to such subordinate mortgage in
substantially the form of Exhibit T hereto (provided that the Trustee shall have
no responsibility for determining the sufficiency or validity thereof), (vi) if
the subordinate mortgage loan will not be a fully amortizing loan, the stated
maturity date of the subordinate mortgage loan shall be no earlier than the
maturity date of the related Co-op Mortgage Loan, (vii) the subordinate mortgage
loan shall have interest payable on a current basis, with no deferral, (viii)
the subordinate mortgage loan is made principally for the purpose of funding
capital expenditures, major repairs or reserves at or with respect to the
Mortgaged Property in question and (ix) the aggregate amount of subordinate debt
encumbering the Mortgaged Property in question does not exceed $7,500,000. For
purposes of this definition, and notwithstanding anything herein to the
contrary: "Mortgage Debt" shall mean the sum of (x) the aggregate outstanding
principal balance of all loans secured by one or more mortgages then encumbering
the Mortgaged Property in question (including the related Co-op Mortgage Loan
and any then existing subordinate mortgage loans) and (y) the principal amount
of the proposed new subordinate mortgage loan; "New Loan-to-Value Ratio" shall
mean, as of any date for any Co-op Mortgage Loan, the fraction, expressed as a
percentage, the numerator of which is the Mortgage Debt for the related
Mortgaged Property on such date, and the denominator of which is the Appraised
Value of the related Mortgaged Property; and "Appraised Value" shall be based on
an MAI appraisal of the applicable Mortgaged Property made, in conformance with
NCB, FSB's customary underwriting requirements, not more than one year prior to
the origination date of the related Co-op Mortgage Loan and reviewed by the NCB
Master Servicer.
"NCB Master Servicer" means NCB, FSB and its permitted successors or
assigns.
"NCB Master Servicer's Website" has the meaning set forth in Section
8.14 hereof.
"NCB, FSB Trust Assets" means the NCB, FSB Loans, any REO Properties
acquired by the Trust with respect to the NCB, FSB Loans and any and all other
related assets of the Trust.
"NCB, FSB" has the meaning assigned in the Preliminary Statement
hereto.
"NCB, FSB Loans" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to the Mortgage Loan Purchase Agreement IV and shown on
Schedule IV hereto.
"Net Aggregate Prepayment Interest Shortfall" means, for any
Distribution Date and each Master Servicer, the excess of all Prepayment
Interest Shortfalls incurred in respect of all (or, where specified, a portion)
of the Mortgage Loans serviced by such Master Servicer (including Specially
Serviced Mortgage Loans) during any Collection Period over the sum of (A) the
Compensating Interest to be paid by such Master Servicer (or any Primary
Servicer or Sub-Servicer, if applicable according to the related Primary
Servicing Agreement or Sub-Servicing Agreement) on such Distribution Date and
(B) the aggregate Prepayment Interest Excesses during such Collection Period for
such Master Servicer's Mortgage Loans (including Specially Serviced Mortgage
Loans). Prepayment Interest Shortfalls and Prepayment Interest Excesses will be
separately accounted for by each of the Master Servicers.
"Net Swap Payment" shall have the meaning specified in Section
8.30(g).
"New Lease" means any lease of any REO Property entered into on
behalf of the Trust, including any lease renewed or extended on behalf of the
Trust if the Trust has the right to renegotiate the terms of such lease.
"1940 Act" means the Investment Company Act of 1940, as amended.
"1933 Act" means the Securities Act of 1933, as amended.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"Non-Investment Grade Certificates" means each Class of Certificates
other than a Residual Certificate, Class EI-L3 Certificate or a Class EI
Certificate that, at the time of determination, is not rated in one of the four
highest generic rating categories by at least one of Fitch, S&P or Xxxxx'x.
"Non-Registered Certificate" means unless and until registered under
the Securities Act, any Class X-1, Class X-Y, Class E, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class EI,
Class EI-L3 or Residual Certificate.
"Nondisqualification Opinion" means a written Opinion of Counsel to
the effect that a contemplated action (i) will neither cause any REMIC Pool to
fail to qualify as a REMIC at any time that any Certificates are outstanding nor
cause a "prohibited transaction," "prohibited contribution" or any other tax
(other than a tax on "net income from foreclosure property" permitted to be
incurred under this Agreement) to be imposed on any REMIC Pool or the Trust,
(ii) will not cause the Class EI/Class EI-L3 Grantor Trust to fail to qualify as
a grantor trust and (iii) will not cause the Class A-3-1FL Grantor Trust to fail
to qualify as a grantor trust.
"Noneconomic Residual Interest" means a residual interest that is a
"noneconomic residual interest" within the meaning of Treasury Regulations
Section 1.860E-1(c).
"Nonrecoverable Advance" means the portion of any Advance (including
interest accrued thereon at the Advance Rate) or Unliquidated Advance (not
including interest thereon) previously made (or, in the case of an Unliquidated
Advance, not reimbursed to the Trust) or proposed to be made by a Master
Servicer, a Special Servicer or the Trustee that, in its respective sole
discretion, exercised in good faith and, with respect to such Master Servicer
and such Special Servicer, in accordance with the Servicing Standard, will not
be or, in the case of a current delinquency, would not be, ultimately
recoverable, from Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds or Purchase Proceeds (or from any other collections) with respect to
the related Mortgage Loan or REO Property, as evidenced by an Officer's
Certificate delivered pursuant to Section 4.4. With respect to each Mortgage
Loan that is cross-collateralized by Mortgaged Properties securing other
Mortgage Loans, all of such Mortgaged Properties and other security must be
considered in connection with any determination of whether an Advance or
Unliquidated Advance is a Nonrecoverable Advance. Such Officer's Certificate
shall be delivered to the Trustee (upon which the Trustee may conclusively rely)
or to the Depositor (if the Trustee is delivering such Officer's Certificate)
and (in either case) to the applicable Special Servicer and the Paying Agent, in
the time periods as specified in Section 4.4 and shall include the information
and reports set forth in Section 4.4. Absent bad faith, the applicable Master
Servicer's determination as to the nonrecoverability of any Advance shall be
conclusive and binding on the Certificateholders and may, in all cases, be
relied on by the Trustee; provided, however, that the applicable Special
Servicer may, at its option, make a determination in accordance with the
Servicing Standard that any P&I Advance or Servicing Advance, if made, would be
a Nonrecoverable Advance and shall deliver to the Master Servicer and the
Trustee notice of such determination. Any such determination shall be conclusive
and binding on the applicable Master Servicer and the Trustee; provided,
however, the applicable Special Servicer shall have no such right to make an
affirmative determination that any P&I Advance is or would be recoverable and,
in the absence of a determination by the applicable Special Servicer that such
Advance is or would be a Nonrecoverable Advance, the decision that a P&I Advance
is recoverable shall remain with the applicable Master Servicer or Trustee, as
applicable. Absent bad faith, such determination by the applicable Special
Servicer shall be conclusive and binding on the Certificateholders, the Master
Servicers and the Trustee. None of the Master Servicers, the Special Servicers
or the Trustee will be obligated to make any Advance that, in its judgment in
accordance with the Servicing Standard, would not ultimately be recoverable out
of collections on the related Mortgage Loan. In making any nonrecoverability
determination as described above, the relevant party shall be entitled (i) to
consider (among other things) the obligations of the Mortgagor under the terms
of the Mortgage Loan as it may have been modified, (ii) to consider (among other
things) the related Mortgaged Properties in their "as is" then-current
conditions and occupancies and such party's assumptions (consistent with the
Servicing Standard in the case of the applicable Master Servicer or the
applicable Special Servicer) regarding the possibility and effects of future
adverse change with respect to such Mortgaged Properties, (iii) to estimate and
consider, consistent with the Servicing Standard in the case of the applicable
Master Servicer or the applicable Special Servicer (among other things), future
expenses, (iv) to estimate and consider, consistent with the Servicing Standard
in the case of the applicable Master Servicer or the applicable Special Servicer
(among other things), the timing of recovery to such party and (v) to consider
the amount of any deferred Advances outstanding. In addition, the relevant party
may, consistent with the Servicing Standard in the case of the applicable Master
Servicer or the applicable Special Servicer, update or change its
nonrecoverability determinations at any time in accordance with the terms hereof
and may, consistent with the Servicing Standard in the case of the applicable
Master Servicer or the applicable Special Servicer, obtain from the applicable
Special Servicer any analysis, appraisals or other information in the possession
of such Special Servicer for such purposes.
"Notional Amount" means, as of any date of determination: (i) with
respect to all of the Class X-1 Certificates as a Class, the Class X-1 Notional
Amount as of such date of determination; (ii) with respect to any Class X-1
Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X-1 Notional Amount as of such date of determination;
(iii) with respect to all of the Class X-Y Certificates as a Class, the Class
X-Y Notional Amount as of such date of determination; (iv) with respect to any
Class X-Y Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X-Y Notional Amount; (v) with respect to all of the
Class X-2 Certificates as a Class, the Class X-2 Notional Amount as of such date
of determination; (vi) with respect to any Class X-2 Certificate, the product of
the Percentage Interest evidenced by such Certificate and the Class X-2 Notional
Amount of such date of determination; (vii) with respect to any Group X-Y REMIC
I Regular Interest, the Principal Balance of the related Specially Designated
Co-op Mortgage Loan (or any successor REO Mortgage Loan), reduced by any
Advances of principal made with respect to such Specially Designated Co-op
Mortgage Loan and losses thereon previously allocated to Certificateholders; and
(viii) with respect to the REMIC II Regular Interest X-Y, the Class X-Y Notional
Amount, which is equal to the aggregate of the Notional Amounts with respect to
all Group X-Y REMIC I Regular Interests.
"Officer's Certificate" means (v) in the case of the Depositor, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Senior Vice President, Vice President or
Assistant Vice President, and by one or more of the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Depositor, or (w) in
the case of the applicable Master Servicer(s) and the applicable Special
Servicer(s), any of the officers referred to above or an employee thereof
designated as a Servicing Officer or Special Servicing Officer pursuant to this
Agreement, (x) in the case of the Trustee, a certificate signed by a Responsible
Officer, (y) in the case of a Seller, a certificate signed by one or more of the
Chairman of the Board, any Vice Chairman, any Managing Director or Director, the
President, or any Executive Vice President; Senior Vice President, Second Vice
President, Vice President or Assistant Vice President, any Treasurer, any
Assistant Treasurer or any Secretary or Assistant Secretary or any other
authorized signatory and (z) in the case of the Paying Agent, a certificate
signed by a Responsible Officer, each with specific responsibilities for the
matters contemplated by this Agreement.
"Operating Adviser" shall have the meaning specified in Section
9.37(a).
"Opinion of Counsel" means a written opinion of counsel addressed to
the applicable Master Servicer (and/or any Primary Servicer acting on behalf of
such Master Servicer), the applicable Special Servicer, or the Trustee and the
Paying Agent, as applicable, reasonably acceptable in form and substance to such
Master Servicer (and/or any Primary Servicer acting on behalf of such Master
Servicer), such Special Servicer, or the Trustee and the Paying Agent, as
applicable, and who is not in-house counsel to the party required to deliver
such opinion but who, in the good faith judgment of such Master Servicer (and/or
any Primary Servicer acting on behalf of such Master Servicer), the applicable
Special Servicer, or the Trustee and the Paying Agent, as applicable, is
Independent outside counsel knowledgeable of the issues occurring in the
practice of securitization with respect to any such opinion of counsel
concerning the taxation, or status as a REMIC for tax purposes, of any REMIC
Pool or status as a "grantor trust" under the Grantor Trust Provisions of the
Class A-3-1FL Grantor Trust and the Class EI/Class EI-L3 Grantor Trust.
"Option" shall have the meaning specified in Section 9.36(a).
"Option Holder" shall have the meaning specified in Section 9.36(a).
"Option Purchase Price" shall have the meaning specified in Section
9.36(b).
"Ownership Interest" means, as to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"OTS" shall mean the Office of Thrift Supervision or any successor
thereto.
"P&I Advance" shall mean, (i) with respect to any Mortgage Loan or
Specially Serviced Mortgage Loan as to which all or a portion of the Scheduled
Payment (net of the related Master Servicing Fees, Excess Servicing Fees,
Primary Servicing Fees and other servicing fees payable from such Scheduled
Payment), other than a Balloon Payment or any default interest, due during the
related Collection Period was not received by the applicable Master Servicer as
of the related Determination Date (subject to Section 5.1(h)), the portion of
such Scheduled Payment not received; (ii) with respect to any Balloon Mortgage
Loan (including any REO Mortgage Loan which provided for a Balloon Payment) as
to which a Balloon Payment was due or deemed due during or prior to the related
Collection Period but was delinquent, in whole or in part, as of the related
Determination Date, an amount equal to the excess, if any, of the Assumed
Scheduled Payment (net of the related Master Servicing Fee, Excess Servicing
Fees, Primary Servicing Fees and other master or primary servicing fees payable
from such Assumed Scheduled Payment) for such Balloon Mortgage Loan for the
related Collection Period, over any Late Collections received in respect of such
Balloon Payment during such Collection Period; and (iii) with respect to each
REO Property, an amount equal to the excess, if any, of the Assumed Scheduled
Payment for the REO Mortgage Loan related to such REO Property during the
related Collection Period, over remittances of REO Income to the applicable
Master Servicer by the applicable Special Servicer, reduced by any amounts
required to be paid as taxes on such REO Income (including taxes imposed
pursuant to Section 860G(c) of the Code); provided, however, that the Scheduled
Payment or Assumed Scheduled Payment for any Mortgage Loan or REO Mortgage Loan
which has been modified shall be calculated based on its terms as modified and
provided, further, that the interest portion amount of any P&I Advance with
respect to a Mortgage Loan as to which there has been an Appraisal Reduction
shall be an amount equal to the product of (i) the amount with respect to
interest required to be advanced without giving effect to this proviso and (ii)
a fraction, the numerator of which is the Scheduled Principal Balance of such
Mortgage Loan as of the immediately preceding Determination Date less any
Appraisal Reduction applicable to such Mortgage Loan and the denominator of
which is the Scheduled Principal Balance of such Mortgage Loan as of such
Determination Date.
"P&I Advance Amount" means the amount of the P&I Advance computed
for any Distribution Date.
"Participant" means a broker, dealer, bank, other financial
institution or other Person for whom the Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency.
"Pass-Through Rate" or "Pass-Through Rates" means with respect to
any Class of REMIC I Regular Interests, REMIC II Regular Interests, REMIC III
Regular Interests or Class A-3-1FL Certificates, for the first Distribution
Date, the rate set forth in the Preliminary Statement hereto. For any
Distribution Date occurring thereafter, the Pass-Through Rates for (i)(A) the
Group PB REMIC I Regular Interests shall equal their respective REMIC I Net
Mortgage Rates and (B) the Group X-Y REMIC I Regular Interests, their respective
Class X-Y Strip Rates on the related Mortgage Loan for such Distribution Date,
(ii)(A) the REMIC II Regular Interests (other than REMIC II Regular Interest
X-Y) shall equal the Weighted Average REMIC I Net Mortgage Rate and (B) the
REMIC II Regular Interest X-Y shall equal the Weighted Average Class X-Y Strip
Rate for such Distribution Date, (iii) the Class A-1 and Class A-2 Certificates
shall equal the fixed rate corresponding to such Class set forth in the
Preliminary Statement hereto, (iv) the Class A-1A Certificates shall equal a per
annum rate equal to the lesser of 5.214% and the Weighted Average REMIC I Net
Mortgage Rate for such Distribution Date, (v) the Class A-3-1FL Certificates
shall equal the per annum rate equal to LIBOR plus 0.240%, provided, however,
that under the circumstances set forth in Section 6.12 regarding defaults or
terminations under the Swap Contract, the Pass-Through Rate of the Class A-3-1FL
Regular Interest shall be subject to reduction in accordance with the Swap
Contract and this Agreement, (vi) the Class A-3-1 Certificates shall equal a per
annum rate equal to the lesser of 5.251% and the Weighted Average REMIC I Net
Mortgage Rate for such Distribution Date, (vii) the Class A-3-2 Certificates
shall equal a per annum rate equal to the lesser of 5.253% and the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date, (viii) the Class
A-AB Certificates shall equal a per annum rate equal to the lesser of 5.178% and
the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, (ix)
the Class A-4A Certificates shall equal a per annum rate equal to the lesser of
5.230% and the Weighted Average REMIC I Net Mortgage Rate for such Distribution
Date, (x) the Class A-4B Certificates shall equal a per annum rate equal to the
lesser of 5.284% and the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, (xi) the Class A-J Certificates shall equal a per annum rate
equal to the Weighted Average REMIC I Net Mortgage Rate less 0.067% for such
Distribution Date, (xii) the Class B Certificates shall equal a per annum rate
equal to the Weighted Average REMIC I Net Mortgage Rate less 0.018% for such
Distribution Date, (xiii) the Class C, Class D, Class E, Class F, Class G and
Class H Certificates shall equal a per annum rate equal to the Weighted Average
REMIC I Net Mortgage Rate, (xiv) the Class J, Class K, Class L, Class M, Class
N, Class O and Class P Certificates shall equal the lesser of (A) 4.944% and (B)
the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, (xv)
the Class X-1 Certificates shall equal the per annum rate equal to the weighted
average of Class X-1 Strip Rates for the Components for such Distribution Date
(weighted on the basis of the respective Component Notional Amounts of such
Components outstanding immediately prior to such Distribution Date), (xvi) the
Class X-2 Certificates shall equal the per annum rate equal to the weighted
average of the Class X-2 Strip Rates for the respective Class X-2 Components for
such Distribution Date (weighted on the basis of the respective Component
Notional Amounts of such Components outstanding immediately prior to such
Distribution Date), (xvii) the Class X-Y Certificates shall equal the Weighted
Average Class X-Y Strip Rate and (xviii) the Class A-3-1FL Regular Interest
shall equal a per annum rate equal to the lesser of 5.251% and the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date.
"Paying Agent" means Xxxxx Fargo Bank, N.A. and any successor or
assign, as provided herein.
"Paying Agent's Website" has the meaning set forth in Section 5.4(a)
hereof.
"Percentage Interest" means, with respect to each Class of
Certificates other than the Residual Certificates, the fraction of such Class
evidenced by such Certificate, expressed as a percentage (carried to four
decimal places and rounded, if necessary), the numerator of which is the
Certificate Balance or Notional Amount, as applicable, represented by such
Certificate determined as of the Closing Date (as stated on the face of such
Certificate) and the denominator of which is the Aggregate Certificate Balance
or Notional Amount, as applicable, of all of the Certificates of such Class
determined as of the Closing Date. With respect to each Residual Certificate,
the percentage interest in distributions (if any) to be made with respect to the
relevant Class, as stated on the face of such Certificate.
"Performing Party" has the meaning set forth in Section 8.26(b).
"Permitted Transferee" means any Transferee other than (i) a
Disqualified Organization or (ii) a United States Tax Person with respect to
whom income from a Residual Certificate is attributable to a foreign permanent
establishment or fixed base, within the meaning of an applicable income tax
treaty, of such Person or any other United States Tax Person.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Phase I Environmental Report" means a report by an Independent
Person who regularly conducts environmental site assessments in accordance with
then current standards imposed by institutional commercial mortgage lenders and
who has a reasonable amount of experience conducting such assessments.
"Placement Agent" means Xxxxxx Xxxxxxx & Co. Incorporated or its
successor in interest.
"Plan" has the meaning set forth in Section 3.3(d).
"Planned Principal Balance" means for any Distribution Date, the
balance shown for such Distribution Date on Schedule XV.
"Preliminary Prospectus Supplement" has the meaning set forth in the
Preliminary Statement hereto.
"Prepayment Interest Excess" means for any Distribution Date and the
related Collection Period, during which a full or partial Principal Prepayment
of a Mortgage Loan (including any payment of an unscheduled Balloon Payment) is
made on or after the Due Date for such Mortgage Loan through and including the
last day of the Collection Period (or, with respect to those Mortgage Loans
listed on Schedule XIII, through and including the first Business Day prior to
the Master Servicer Remittance Date), the amount of interest that accrues on the
amount of such Principal Prepayment or Balloon Payment from such Due Date to the
date such payment was made, plus (if made) any payment by the related Mortgagor
of interest that would have accrued to the next succeeding Due Date (net of the
amount of any Master Servicing Fee, the Primary Servicing Fees, the Excess
Servicing Fees, the Special Servicing Fee and the Trustee Fee in each case, to
the extent payable out of such collection of interest), to the extent collected.
"Prepayment Interest Shortfall" means, with respect to any
Distribution Date, a shortfall in the collection of a full month's interest on
any Mortgage Loan, by reason of a full or partial Principal Prepayment
(including any payment of an unscheduled Balloon Payment) made during any
Collection Period prior to the Due Date for such Mortgage Loan in such
Collection Period (including any shortfall resulting from a payment during the
grace period relating to such Due Date). The amount of any Prepayment Interest
Shortfall shall equal the excess of (A) the aggregate amount of interest which
would have accrued at the REMIC I Net Mortgage Rate on the Scheduled Principal
Balance of such Mortgage Loan for the 30 days ending on such Due Date if such
Principal Prepayment or Balloon Payment had not been made (net of the Master
Servicing Fee, the Primary Servicing Fees, the Excess Servicing Fees, the
Special Servicing Fee and the Trustee Fee), plus, with respect to each Specially
Designated Co-op Mortgage Loan, the related Class X-Y Strip Rate over (B) the
aggregate interest that did so accrue at the REMIC I Net Mortgage Rate plus,
with respect to each Specially Designated Co-op Mortgage Loan, the related Class
X-Y Strip Rate, through the date such payment was made.
"Prepayment Premium" means, with respect to any Mortgage Loan for
any Distribution Date, the prepayment premiums or percentage premiums, if any,
received during a related Collection Period in connection with Principal
Prepayments on such Mortgage Loan.
"Primary Collateral" means the portion of the Mortgaged Property
securing the Repurchased Loan or Cross-Collateralized Loan, as applicable, that
is encumbered by a first mortgage lien.
"Primary Servicers" means any of Union Central Mortgage Funding,
Inc., Babson Capital Management LLC, SunTrust Bank and each of their respective
permitted successors and assigns.
"Primary Servicing Agreement" means, with respect to each Primary
Servicer, the agreement between such Primary Servicer and the General Master
Servicer, dated as of October 1, 2005, under which such Primary Servicer
services the Mortgage Loans set forth on the schedule attached thereto.
"Primary Servicing Fee" means, for each calendar month, as to each
Mortgage Loan for which a Primary Servicing Fee is payable pursuant to this
Agreement, the Primary Servicing Fee Rate multiplied by the Scheduled Principal
Balance of such Mortgage Loan immediately before the Due Date occurring in such
month, but prorated for the number of days during the calendar month for such
Mortgage Loan for which interest actually accrues on such Mortgage Loan and
payable only from collections on such Mortgage Loan.
"Primary Servicing Fee Rate" means, the rate per annum at which the
monthly Primary Servicing Fee payable to the applicable Primary Servicer (or the
applicable Master Servicer, as applicable) accrues, which rate is the per annum
rate specified on the Mortgage Loan Schedule, as more specifically described, in
the case of the Primary Servicers, in the applicable Primary Servicing Agreement
(determined in the same manner (other than the rate of accrual) as the
applicable Mortgage Rate is determined for such Mortgage Loan for such month).
"Principal Balance" means, with respect to any Mortgage Loan or any
REO Mortgage Loan, for purposes of performing calculations with respect to any
Distribution Date, the principal balance of such Mortgage Loan or the related
REO Mortgage Loan outstanding as of the Cut Off Date after taking into account
all principal and interest payments made or due prior to the Cut Off Date
(assuming, for any Mortgage Loan with a Cut Off Date in October 2005 that is not
October 1, 2005, that principal and interest payments for such month were paid
on October 1, 2005), reduced (to not less than zero) by (i) any payments or
other collections of amounts allocable to principal on such Mortgage Loan or any
related REO Mortgage Loan that have been collected or received during any
preceding Collection Period, other than any Scheduled Payments due in any
subsequent Collection Period, and (ii) any Realized Principal Loss incurred in
respect of such Mortgage Loan or related REO Mortgage Loan, in each case, during
any related and preceding Collection Period.
"Principal Balance Certificates" means, collectively, the Class A-1,
Class A-1A, Class A-2, Class A-3-1FL, Class A-3-1, Class A-3-2, Class A-AB,
Class X-0X, Xxxxx X-0X, Xxxxx X-X, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O and Class
P Certificates.
"Principal Distribution Amount" means, on any Distribution Date, the
amount equal to the excess, if any, of (I) the sum of:
(A) the aggregate (without duplication) of the following amounts
received with respect to the Mortgage Loans: (i) the principal portion of
all Scheduled Payments (other than the principal portion of Balloon
Payments) and any Assumed Scheduled Payments, in each case, to the extent
received or advanced, as the case may be, in respect of the Mortgage Loans
and any REO Mortgage Loans for their respective Due Dates occurring during
the related Collection Period; and (ii) all payments (including Principal
Prepayments and the principal portion of Balloon Payments) and any other
collections (including Liquidation Proceeds (other than the portion
thereof, if any, constituting Excess Liquidation Proceeds), Condemnation
Proceeds, Insurance Proceeds, Purchase Proceeds and REO Income) received
on or in respect of the Mortgage Loans during the related Collection
Period that were identified and applied by the Master Servicer as
recoveries of principal thereof;
(B) the aggregate amount of any collections received on or in
respect of the Mortgage Loans that represents a delinquent amount as to
which an Advance had been made, which Advance or interest thereon was
previously reimbursed during the Collection Period for a prior
Distribution Date as part of a Workout-Delayed Reimbursement Amount for
which a deduction was made under clause (II)(A) below with respect to such
Distribution Date (with respect to each such Mortgage Loan, allocated
first to the Loan Group Principal Distribution Amount related to the Loan
Group that does not include such Mortgage Loan, and then to the Loan Group
Principal Distribution Amount related to the Loan Group that includes such
Mortgage Loan); and
(C) the aggregate amount of any collections identified and applied
by the applicable Master Servicer as recoveries of principal and received
on or in respect of the Mortgage Loans during the related Collection
Period that, in each case, represents a recovery of an amount previously
determined (in a Collection Period for a prior Distribution Date) to have
been a Nonrecoverable Advance and any interest thereon and for which a
deduction was made under clause (II)(B) below with respect to a prior
Distribution Date (with respect to each such Mortgage Loan, allocated
first to the Loan Group Principal Distribution Amount related to the Loan
Group that does not include such Mortgage Loan, and then to the Loan Group
Principal Distribution Amount related to the Loan Group that includes such
Mortgage Loan), and which are applied pursuant to Section 6.6(c)(i); over
(II) the sum of (with respect to each such Mortgage Loan, allocated
first to the Loan Group Principal Distribution Amount applicable to such
Mortgage Loan, and then to the other Loan Group Principal Distribution Amount):
(A) the aggregate amount of Workout-Delayed Reimbursement Amounts
(and Advance Interest thereon) that was reimbursed or paid during the
related Collection Period to one or more of the applicable Master
Servicer, the applicable Special Servicer and the Trustee from principal
collections on the Mortgage Loans pursuant to subsection (iii) of Section
5.2(a)(II); and
(B) the aggregate amount of Nonrecoverable Advances (and Advance
Interest thereon) that was reimbursed or paid during the related
Collection Period to one or more of the Master Servicer, the applicable
Special Servicer and the Trustee during the related Collection Period from
principal collections on the Mortgage Loans pursuant to subsection (iv) of
Section 5.2(a)(II).
"Principal Prepayment" means any voluntary or involuntary payment or
collection of principal on a Mortgage Loan which is received or recovered in
advance of its scheduled Due Date and applied to reduce the Principal Balance of
the Mortgage Loan in advance of its scheduled Due Date, including, without
limitation, all proceeds, to the extent allocable to principal, received from
the payment of cash in connection with a substitution shortfall pursuant to
Section 2.3; provided that the pledge by a Mortgagor of Defeasance Collateral
with respect to a Defeasance Loan shall not be deemed to be a Principal
Prepayment.
"Private Placement Memorandum" means the Private Placement
Memorandum dated October 12, 2005, pursuant to which the Class X-1, Class X-Y,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O and Class P Certificates will be offered for sale.
"Projected Net Cash Flow" shall mean, with respect to any Mortgaged
Property that is a residential cooperative property, projected net operating
income at such Mortgaged Property, as set forth in the Appraisal obtained with
respect to such Mortgaged Property in connection with the origination of the
related Mortgage Loan (or an updated Appraisal, if required hereunder), assuming
such Mortgaged Property was operated as a rental property with rents set at
prevailing market rates taking into account the presence of existing rent
controlled or rent stabilized occupants, reduced by underwritten capital
expenditures, property operating expenses, a market rate vacancy assumption and
projected reserves.
"Prospectus" has the meaning set forth in the Preliminary Statement
hereto.
"PTCE" has the meaning set forth in Section 3.3(d).
"Purchase Price" means, with respect to (i) the repurchase, pursuant
to Article II of this Agreement, by the applicable Seller of a Mortgage Loan
sold by such Seller, (ii) the determination of fair value of an REO Mortgage
Loan with respect to a liquidation by the Special Servicer pursuant to Section
9.15 or (iii) the determination of fair value of a Mortgage Loan in connection
with a purchase by the Option Holder pursuant to Section 9.36 under the
circumstances described therein, a price equal to the sum of (A) 100% of the
unpaid Principal Balance of such Mortgage Loan (or deemed Principal Balance, in
the case of an REO Mortgage Loan), plus (B) accrued but unpaid interest thereon
calculated at the Mortgage Rate to, but not including, the Due Date in the
Collection Period in which such purchase or liquidation occurs, plus (C) the
amount of any expenses related to such Mortgage Loan or the related REO Property
(including any Servicing Advances and Advance Interest (which have not been paid
by the Mortgagor or out of Late Fees or default interest paid by the related
Mortgagor on the related Mortgage Loan) and all unpaid Special Servicing Fees
and Liquidation Fees paid or payable with respect to the Mortgage Loan) that are
reimbursable or payable to the applicable Master Servicer, the applicable
Special Servicer, the Paying Agent or the Trustee, plus (D) if such Mortgage
Loan or REO Mortgage Loan is being repurchased or substituted for by a Seller
pursuant to the related Mortgage Loan Purchase Agreement, all expenses
reasonably incurred or to be incurred by the Primary Servicer, the applicable
Master Servicer, the applicable Special Servicer, the Depositor, the Paying
Agent or the Trustee in respect of the Material Breach or Material Document
Defect giving rise to the repurchase or substitution obligation (and that are
not otherwise included in (C) above).
"Purchase Proceeds" means any cash amounts received by the
applicable Master Servicer in connection with: (i) the repurchase of a Mortgage
Loan or an REO Mortgage Loan by a Seller pursuant to Section 2.3, (ii) the
purchase by the Option Holder of a Mortgage Loan pursuant to Section 9.36 or
(iii) the purchase of the Mortgage Loans and REO Properties by the Depositor,
the applicable Master Servicer, the applicable Special Servicer or the holders
of the Class R-I Certificates pursuant to Section 10.1(b).
"Qualified Bidder" means as used in section 8.29(c), a Person
qualified to act as successor Master Servicer hereunder pursuant to Section
8.22(b) (including the requirement set forth in Section 8.22(b) that Rating
Agency Confirmation shall have been obtained from each Rating Agency with
respect to such Person).
"Qualified Institutional Buyer" means a qualified institutional
buyer qualifying pursuant to Rule 144A.
"Qualified Insurer" means, (i) with respect to any Mortgage Loan, an
insurance company duly qualified as such under the laws of the state in which
the related Mortgaged Property is located, duly authorized and licensed in such
state to transact the applicable insurance business and to write the insurance,
but in no event rated lower than "A2" by Moody's, or if not so rated by Moody's,
then Moody's has issued a Rating Agency Confirmation, and "A" by S&P, or if not
so rated by S&P, then S&P has issued a Rating Agency Confirmation, and (ii) with
respect to the Servicer Errors and Omissions Insurance Policy or Servicer
Fidelity Bond an insurance company that has a claim paying ability no lower than
"A" by S&P if rated by S&P, or if not so rated by S&P, then A:IX by A. M. Best
or S&P has issued a Rating Agency Confirmation and "A2" by Moody's (or if such
company is not rated by Xxxxx'x, is rated at least A:IX by A.M. Best's Key
Rating Guide) or (iii) in either case, a company not satisfying clause (i) or
(ii) but with respect to which Rating Agency Confirmation is obtained from
Moody's and S&P. "Qualified Insurer" shall also mean any entity that satisfies
all of the criteria, other than the ratings criteria, set forth in one of the
foregoing clauses and whose obligations under the related insurance policy are
guaranteed or backed by an entity that satisfies the ratings criteria set forth
in such clause (construed as if such entity were an insurance company referred
to therein).
"Qualifying Substitute Mortgage Loan" means, in the case of a
Mortgage Loan substituted for a Deleted Mortgage Loan, a Mortgage Loan which, on
the date of substitution, (i) has an outstanding principal balance, after
deduction of the principal portion of the Scheduled Payment due in the month of
substitution, not in excess of the Principal Balance of the Deleted Mortgage
Loan; provided, however, that, to the extent that the principal balance of such
Mortgage Loan is less than the Principal Balance of the Deleted Mortgage Loan,
then such differential in principal amount, together with interest thereon at
the Mortgage Rate on the related Mortgage Loan from the date as to which
interest was last paid through the last day of the month in which such
substitution occurs, shall be paid by the party effecting such substitution to
the applicable Master Servicer for deposit into the applicable Certificate
Account, and shall be treated as a Principal Prepayment hereunder; (ii) is
accruing interest at a rate of interest at least equal to that of the Deleted
Mortgage Loan; (iii) has a remaining term to stated maturity not greater than,
and not more than two years less than, that of the Deleted Mortgage Loan; (iv)
has (A) an original Loan-to-Value Ratio not higher than the lesser of (x) the
current Loan-to-Value Ratio of the Deleted Mortgage Loan and (y) 75.0% and (B)
has a current Debt Service Coverage Ratio equal to the greater of (x) the
current Debt Service Coverage Ratio of the Deleted Mortgage Loan and (y) 1.25x;
(v) will comply with all of the representations and warranties relating to
Mortgage Loans set forth herein, as of the date of substitution; (vi) has a
Phase I Environmental Report relating to the related Mortgaged Property in the
related Mortgage File and such Phase I Environmental Report does not, in the
good faith reasonable judgment of the applicable Special Servicer, exercised in
a manner consistent with the Servicing Standard, raise material issues that have
not been adequately addressed; (vii) has an engineering report relating to the
related Mortgaged Property in its Mortgage Files and such engineering report
does not, in the good faith reasonable judgment of the Special Servicer,
exercised in a manner consistent with the Servicing Standard, raise material
issues that have not been adequately addressed; (viii) is secured by a
residential cooperative property if the Mortgage Loan substituted for a Deleted
Mortgage Loan is a Co-op Mortgage Loan; and (ix) as to which the Trustee and the
Paying Agent have received an Opinion of Counsel, at the related Seller's
expense, that such Mortgage Loan is a "qualified replacement mortgage" within
the meaning of Section 860G(a)(4) of the Code; provided that no Mortgage Loan
may have a Maturity Date after the date three years prior to the Final Rated
Distribution Date, and provided, further, that no such Mortgage Loan shall be
substituted for a Deleted Mortgage Loan unless Rating Agency Confirmation is
obtained, and provided, further, that no such Mortgage Loan shall be substituted
for a Deleted Mortgage Loan unless the Operating Adviser shall have approved of
such substitution (provided, however, that such approval of the Operating
Adviser may not be unreasonably withheld). In the event that either one mortgage
loan is substituted for more than one Deleted Mortgage Loan or more than one
mortgage loan is substituted for one or more Deleted Mortgage Loans, then (A)
the Principal Balance referred to in clause (i) above shall be determined on the
basis of aggregate Principal Balances and (B) the rates referred to in clause
(i) above and the remaining term to stated maturity referred to in clause (ii)
above shall be determined on a weighted average basis; provided, however, that
no individual interest rate, minus the Administrative Cost Rate, shall be lower
than the highest Pass-Through Rate of any Class of Principal Balance
Certificates then outstanding having a fixed rate. Whenever a Qualifying
Substitute Mortgage Loan is substituted for a Deleted Mortgage Loan pursuant to
this Agreement, the party effecting such substitution shall certify that such
Mortgage Loan meets all of the requirements of this definition and shall send
such certification to the Paying Agent, which shall deliver a copy of such
certification to the Master Servicers, the Special Servicers, the Trustee and
the Operating Adviser promptly, and in any event within five Business Days
following the Paying Agent's receipt of such certification.
"Rating Agencies" means Moody's and S&P.
"Rating Agency Confirmation" means, with respect to any matter,
confirmation in writing by each Rating Agency (or such Rating Agency as is
specified herein) that a proposed action, failure to act, or other event
specified herein will not in and of itself result in the withdrawal, downgrade,
or qualification, as applicable, of the then-current rating assigned by such
Rating Agency to any Class of Certificates then rated by such Rating Agency.
"Rating Agency Trigger Event" means, with respect to the Swap
Contract, a reduction in the Swap Counterparty's Credit Support Provider's
short-term unsecured debt rating (or its equivalent) or long-term unsecured debt
rating (or its equivalent) below the ratings specified in the Swap Contract.
"Realized Interest Loss" means, with respect to each Mortgage Loan
(i) in the case of a Liquidation Realized Loss, the portion of any Liquidation
Realized Loss that exceeds the Realized Principal Loss on the related Mortgage
Loan, (ii) in the case of a Bankruptcy Loss, the portion of such Realized Loss
attributable to accrued interest on the related Mortgage Loan, (iii) in the case
of an Expense Loss, an Expense Loss resulting in any period from the payment of
the Special Servicing Fee and any Expense Losses set forth in the last sentence
of the definition of "Realized Principal Loss" or (iv) in the case of a
Modification Loss, a Modification Loss described in clause (iii) of the
definition thereof.
"Realized Loss" means a Liquidation Realized Loss, a Modification
Loss, a Bankruptcy Loss or an Expense Loss with respect to a Mortgage Loan.
Realized Losses on a Mortgage Loan are allocated first to the Principal Balance
of, and then to interest on such Mortgage Loan.
"Realized Principal Loss" means, with respect to each Mortgage Loan,
(i) in the case of a Liquidation Realized Loss, the amount of such Realized
Loss, to the extent that it does not exceed the Principal Balance of the
Mortgage Loan (or deemed Principal Balance, in the case of REO Property), (ii)
in the case of a Modification Loss, the amount of such Modification Loss
described in clause (i) of the definition thereof, (iii) in the case of a
Bankruptcy Loss, the portion of such Realized Loss attributable to the reduction
in the Principal Balance of the related Mortgage Loan, (iv) in the case of an
Expense Loss, the portion thereof not treated as a Realized Interest Loss and
(v) the amounts in respect thereof that are withdrawn from the Certificate
Account pursuant to Section 6.6(b)(i). Notwithstanding clause (iv) of the
preceding sentence, to the extent that Expense Losses (exclusive of Expense
Losses resulting from payment of the Special Servicing Fee) exceed amounts with
respect to a Mortgage Loan that were identified as allocable to principal, such
excess shall be treated as a Realized Interest Loss.
"Record Date" means, for each Distribution Date and each Class of
Certificates, the close of business on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs.
"Recoveries" means, as of any Distribution Date, any amounts
recovered with respect to a Mortgage Loan or REO Property following the period
in which a Final Recovery Determination occurs plus other amounts defined as
"Recoveries" herein.
"Regulation S" means Regulation S under the 1933 Act.
"Regulation S Certificate" means a written certification
substantially in the form set forth in Exhibit F hereto certifying that a
beneficial owner of an interest in a Regulation S Temporary Global Certificate
is not a U.S. Person (as defined in Regulation S).
"Regulation S Global Certificates" means the Regulation S Permanent
Global Certificates together with the Regulation S Temporary Global
Certificates.
"Regulation S Permanent Global Certificate" means any single
permanent global Certificate, in definitive, fully registered form without
interest coupons received in exchange for a Regulation S Temporary Global
Certificate.
"Regulation S Temporary Global Certificate" means, with respect to
any Class of Certificates offered and sold outside of the United States in
reliance on Regulation S, a single temporary global Certificate, in definitive,
fully registered form without interest coupons.
"Rehabilitated Mortgage Loan" means any Specially Serviced Mortgage
Loan with respect to which (i) three consecutive Scheduled Payments have been
made (in the case of any such Mortgage Loan that was modified, based on the
modified terms), or a complete defeasance shall have occurred, (ii) no other
Servicing Transfer Event has occurred and is continuing (or with respect to
determining whether a Required Appraisal Loan is a Rehabilitated Mortgage Loan
for applying Appraisal Reductions, no other Appraisal Event has occurred and is
continuing) and (iii) one of the following statements is true with respect to
any cost incurred as a result of the occurrence of the Servicing Transfer Event:
(a) the cost has been reimbursed to the Trust, (b) the Mortgagor's obligation to
pay the cost has been forgiven, (c) the Mortgagor has agreed in writing to
reimburse such costs or (d) the cost represents an amount that has been the
subject of an Advance made with respect to the Mortgage Loan following default,
the mortgage loan has been worked out under terms that do not provide for the
repayment of such Advance in full upon the execution of the workout arrangement
but the Mortgagor is nonetheless obligated under the terms of the workout
arrangement to reimburse such Advance in the future.
"Release Date" means the date 40 days after the later of (i) the
commencement of the offering of the Certificates and (ii) the Closing Date.
"REMIC" means a real estate mortgage investment conduit within the
meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of the
Mortgage Loans (other than any Excess Interest and Additional L-3 Interest
payable thereon), such amounts related thereto as shall from time to time be
held in the Certificate Accounts, the Interest Reserve Accounts, the Reserve
Account and the Distribution Account (other than the portion thereof
constituting the Floating Rate Account or Excess Interest Sub-account or funds
held with respect to REMIC II or REMIC III), the related Insurance Policies and
any related REO Properties, for which a REMIC election has been made pursuant to
Section 12.1(a) hereof.
"REMIC I Interests" means, collectively, the REMIC I Regular
Interests and the Class R-I Certificates.
"REMIC I Net Mortgage Rate" means, with respect to any Distribution
Date and any REMIC I Regular Interest, a rate per annum equal to the Adjusted
Mortgage Rate for the related Mortgage Loan for such Distribution Date (based on
the Mortgage Rate thereof (without taking into account any increase therein
after the Anticipated Repayment Date in respect of an ARD Loan or any default
interest rate), as of the Cut-Off Date and without regard to any modification,
waiver or amendment of the terms thereof following the Cut-Off Date) minus, with
respect to each Specially Designated Co-op Mortgage Loan, the Class X-Y Strip
Rate.
"REMIC I Regular Interests" means, collectively, the uncertificated
interests designated as "regular interests" in REMIC I, which shall consist of,
with respect to (i) each Mortgage Loan (other than a Specially Designated Co-op
Mortgage Loan), an interest having an initial Certificate Balance equal to the
Cut-Off Date Scheduled Principal Balance of such Mortgage Loan, and which has a
Pass-Through Rate equal to the REMIC I Net Mortgage Rate of such Mortgage Loan
and (ii) with respect to each Specially Designated Co-op Mortgage Loan, one
interest having an initial Certificate Balance equal to the Cut-Off Date
Scheduled Principal Balance of such Specially Designated Co-op Mortgage Loan,
and which has a Pass-Through Rate equal to the REMIC I Net Mortgage Rate of such
Specially Designated Co-op Mortgage Loan and one interest having an initial
Notional Amount equal to the Cut-Off Date Scheduled Principal Balance of such
Specially Designated Co-op Mortgage Loan, and which has a Pass-Through Rate
equal to the Class X-Y Strip Rate of such Specially Designated Co-op Mortgage
Loan.
"REMIC II" means the segregated pool of assets consisting of the
REMIC I Regular Interests and related amounts in the Distribution Account for
which a REMIC election has been made pursuant to Section 12.1(a) hereof.
"REMIC II Interests" means, collectively, the REMIC II Regular
Interests and the Class R-II Certificates.
"REMIC II Regular Interest A-1-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-4" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-5" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-6" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-7" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-8" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A-9" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3-1FL-1" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3-1FL-2" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3-1FL-3" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3-1FL-4" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3-1-1" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3-1-2" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3-1-3" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3-1-4" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3-2-1" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3-2-2" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-AB-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of interest
having an initial Certificate Balance as set forth in the Preliminary Statement,
and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net
Mortgage Rate.
"REMIC II Regular Interest A-AB-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-4A-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-4A-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-4A-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-4B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest B-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest B-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest B-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest C-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest C-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest D-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest D-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest E" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest F-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest F-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest G" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest H-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest H-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest K" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest L" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest M" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest N" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest O" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest P" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest X-Y" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial notional amount equal to the initial Class X-Y
Notional Amount, and which has a Pass-Through Rate equal to the Weighted Average
Class X-Y Strip Rate.
"REMIC II Regular Interests" means, collectively, the 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-1A-1, REMIC II Regular Interest
A-1A-2, REMIC II Regular Interest A-1A-3, REMIC II Regular Interest A-1A-4,
REMIC II Regular Interest A-1A-5, REMIC II Regular Interest A-1A-6, REMIC II
Regular Interest A-1A-7, REMIC II Regular Interest A-1A-8, REMIC II Regular
Interest A-1A-9, REMIC II Regular Interest A-2, REMIC II Regular Interest
A-3-1FL-1, REMIC II Regular Interest A-3-1FL-2, REMIC II Regular Interest
A-3-1FL-3, REMIC II Regular Interest A-3-1FL-4, REMIC II Regular Interest
A-3-1-1, REMIC II Regular Interest A-3-1-2, REMIC II Regular Interest A-3-1-3,
REMIC II Regular Interest A-3-1-4, REMIC II Regular Interest A-3-2-1, REMIC II
Regular Interest A-3-2-2, REMIC II Regular Interest A-AB-1, REMIC II Regular
Interest A-AB-2, REMIC II Regular Interest A-4A-1, REMIC II Regular Interest
A-4A-2, REMIC II Regular Interest A-4B, REMIC II Regular Interest A-J, REMIC II
Regular Interest B-1, REMIC II Regular Interest B-2, REMIC II Regular Interest
B-3, REMIC II Regular Interest C-1, REMIC II Regular Interest C-2, REMIC II
Regular Interest D-1, REMIC II Regular Interest D-2, REMIC II Regular Interest
E, REMIC II Regular Interest F-1, REMIC II Regular Interest F-2, REMIC II
Regular Interest G, REMIC II Regular Interest H-1, REMIC II Regular Interest
H-2, REMIC II Regular Interest J, REMIC II Regular Interest K, REMIC II Regular
Interest L, REMIC II Regular Interest M, REMIC II Regular Interest N, REMIC II
Regular Interest O, REMIC II Regular Interest P and REMIC II Regular Interest
X-Y.
"REMIC III" means the segregated pool of assets consisting of the
REMIC II Regular Interests and related amounts in the Distribution Account for
which a REMIC election has been made pursuant to Section 12.1(a) hereof.
"REMIC III Certificates" has the meaning set forth in the final
paragraph of the Preliminary Statement hereto.
"REMIC III Regular Interests" means, collectively, the Class A-1
Certificates, Class A-1A Certificates, Class A-2 Certificates, Class A-3-1FL
Regular Interest, Class A-3-1 Certificates, Class A-3-2 Certificates, Class A-AB
Certificates, Class A-4A Certificates, Class A-4B Certificates, Class A-J
Certificates, Class X-1 Certificates, Class X-2 Certificates, Class X-Y
Certificates, Class B Certificates, Class C Certificates, Class D Certificates,
Class E Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L Certificates,
Class M Certificates, Class N Certificates, Class O Certificates and Class P
Certificates.
"REMIC Pool" means each of the three segregated pools of assets
designated as a REMIC pursuant to Section 12.1(b) hereof.
"REMIC Provisions" means the provisions of the federal income tax
law relating to real estate mortgage investment conduits, which appear at
Sections 860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and final, temporary and proposed regulations and rulings
promulgated thereunder, as the foregoing may be in effect from time to time and
taking account, as appropriate, of any proposed legislation or regulations
which, as proposed, would have an effective date prior to enactment or
promulgation thereof.
"REMIC Regular Certificates" means, collectively, the Class A-1,
Class A-1A, Class A-2, Class A-3-1, Class A-3-2, Class A-AB, Class X-0X, Xxxxx
X-0X, Xxxxx X-X, Class X-1, Class X-2, Class X-Y, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O and Class P Certificates.
"Rent Loss Policy" means a policy of insurance generally insuring
against loss of income or rent resulting from hazards or acts of God.
"Rents from Real Property" means, with respect to any REO Property,
income of the character described in Section 856(d) of the Code.
"REO Account" shall have the meaning set forth in Section 9.14(a)
hereof.
"REO Disposition" means the receipt by the Master Servicer or the
Special Servicer of Liquidation Proceeds and other payments and recoveries
(including proceeds of a final sale) from the sale or other disposition of REO
Property.
"REO Income" means, with respect to any REO Property, except as set
forth below, all income received in connection with such REO Property during
such period less any operating expenses, utilities, real estate taxes,
management fees, insurance premiums, expenses for maintenance and repairs and
any other capital expenses directly related to such REO Property paid during
such period.
"REO Mortgage Loan" means a Mortgage Loan, as to which the related
Mortgaged Property is an REO Property.
"REO Property" means a Mortgaged Property (or the Trust's interest
therein, if the Mortgaged Property securing a Loan Group has been acquired by
the Trust) acquired by the Trust through foreclosure, deed-in-lieu of
foreclosure, abandonment or reclamation from bankruptcy in connection with a
Defaulted Mortgage Loan or otherwise treated as foreclosure property under the
REMIC Provisions.
"Report Date" means the close of business on the third Business Day
before the related Distribution Date.
"Repurchased Loan" has the meaning set forth in Section 2.3(a)
hereof.
"Request for Release" means a request for release of certain
documents relating to the Mortgage Loans, a form of which is attached hereto as
Exhibit C.
"Required Appraisal Loan" means any Mortgage Loan as to which an
Appraisal Event has occurred. A Mortgage Loan will cease to be a Required
Appraisal Loan at such time as it is a Rehabilitated Mortgage Loan.
"Reserve Account" shall mean the Reserve Account maintained by the
Paying Agent in accordance with the provisions of Section 5.3, which shall be an
Eligible Account, which may be a sub-account of the Distribution Account.
"Residual Certificates" means, with respect to REMIC I, the Class
R-I Certificates; with respect to REMIC II, the Class R-II Certificates; and
with respect to REMIC III, the Class R-III Certificates.
"Responsible Officer" means, when used with respect to the initial
Trustee, any officer assigned to the Global Securitization Trust Services Group,
or with respect to the Paying Agent, any officer assigned to the Corporate Trust
Services Group, each with specific responsibilities for the matters contemplated
by this Agreement and when used with respect to any successor Trustee or Paying
Agent, any Vice President, Assistant Vice President, corporate trust officer or
any assistant corporate trust officer or Persons performing similar roles on
behalf of the Trustee or Paying Agent.
"Restricted Servicer Reports" means, collectively, to the extent not
filed with the Commission, 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.
"Reverse Sequential Order" means sequentially to the Class P, Class
O, Class N, Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class
E, Class D, Class C, Class B, Class A-J and finally to the Class X-1, Class X-2,
Class X-Y, Class A-1, Class A-1A, Class A-2, Class A-3-1, Class A-3-2, Class
A-AB, Class A-4A and Class A-4B Certificates and either the Class A-3-1FL
Regular Interest or Class A-3-1FL Certificates, as applicable, on a pro rata
basis, as described herein.
"Rule 144A" means Rule 144A under the 1933 Act.
"Rule 144A IAI Global Certificate" means, with respect to any Class
of Certificates offered and sold in reliance on Rule 144A or to certain
Institutional Accredited Investors, a single, permanent global Certificate, in
definitive, fully registered form without interest coupons.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or its successor in interest.
"Xxxxxxxx-Xxxxx Certification" has the meaning set forth in Section
8.26(b).
"Scheduled Payment" means each scheduled payment of principal of,
and/or interest on, a Mortgage Loan required to be paid on its Due Date by the
Mortgagor in accordance with the terms of the related Mortgage Note (excluding
all amounts of principal and interest which were due on or before the Cut Off
Date, whenever received, and taking account of any modifications thereof and the
effects of any Debt Service Reduction Amounts and Deficient Valuation Amounts).
"Scheduled Principal Balance" means, with respect to any Mortgage
Loan or any REO Mortgage Loan, for purposes of performing calculations with
respect to any Distribution Date, the Principal Balance thereof minus the
aggregate amount of any P&I Advances of principal previously made with respect
to such Mortgage Loan or such REO Mortgage Loan.
"Seller" means MSMC, IXIS, MM, NCB, FSB, UCMFI or SunTrust, as the
case may be.
"Servicer Errors and Omissions Insurance Policy" or "Errors and
Omissions Insurance Policy" means an errors and omissions insurance policy
maintained by each Master Servicer, each Special Servicer, the Trustee or the
Paying Agent, as the case may be, in accordance with Section 8.2, Section 9.2
and Section 7.17, respectively.
"Servicer Fidelity Bond" or "Fidelity Bond" means a bond or
insurance policy under which the insurer agrees to indemnify each Master
Servicer, each Special Servicer, the Trustee or the Paying Agent, as the case
may be, (subject to standard exclusions) for all losses (less any deductible)
sustained as a result of any theft, embezzlement, fraud or other dishonest act
on the part of a Master Servicer's, a Special Servicer's, the Trustee's or the
Paying Agent's, as the case may be, officers or employees and is maintained in
accordance with Section 8.2, Section 9.2 and Section 7.17, respectively.
"Servicer Mortgage File" means (i) with respect to all Mortgage
Loans other than the MSMC Loans, copies of the mortgage documents listed in the
definition of Mortgage File relating to a Mortgage Loan, and (ii) with respect
to the MSMC Loans, copies of the mortgage documents listed in the definition of
Mortgage File relating to a Mortgage Loan and, to the extent required to be (and
actually) delivered to the General Master Servicer by the applicable Seller
pursuant to the applicable Mortgage Loan Purchase Agreement, copies of the
following items: the Mortgage Note, any Mortgage, the Assignment of Leases and
the Assignment of Mortgage, any guaranty/indemnity agreement, any loan
agreement, any insurance policies or certificates (as applicable), any property
inspection reports, any financial statements on the property, any escrow
analysis, any tax bills, any Appraisal, any environmental report, any
engineering report, any asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreement and any Environmental Insurance Policies.
"Servicing Advance" means any cost or expense of the Master
Servicers, the Special Servicers or the Trustee, as the case may be, designated
as a Servicing Advance pursuant to this Agreement and any other costs and
expenses incurred by or for such Master Servicer, such Special Servicer or the
Trustee, as the case may be, to protect and preserve the security for a Mortgage
Loan.
"Servicing Officer" means, any officer or employee of the Master
Servicers involved in, or responsible for, the administration and servicing of
the Mortgage Loans whose name and specimen signature appear on a list of
servicing officers or employees furnished to the Trustee by each Master Servicer
and signed by an officer of each Master Servicer, as such list may from time to
time be amended.
"Servicing Standard" means the standard by which the Master
Servicers and Special Servicers will service and administer the Mortgage Loans
and/or REO Properties that it is obligated to service and administer pursuant to
this Agreement in the best interests and for the benefit of the
Certificateholders (as determined by the applicable Master Servicer or the
applicable Special Servicer, as applicable, in its good faith and reasonable
judgment), to perform such servicing and administration in accordance with
applicable law, the terms of this Agreement, and the terms of the respective
subject Mortgage Loans and, to the extent consistent with the foregoing, further
as follows:
(i) with the same skill, care and diligence as is normal and usual
in its mortgage servicing activities on behalf of third parties or on
behalf of itself, whichever is higher, and in the case of a Special
Servicer, its REO Property management activities on behalf of third
parties or on behalf of itself, whichever is higher, with respect to
mortgage loans that are comparable to the Mortgage Loans; and
(ii) with a view to the timely collection of all scheduled payments
of principal and interest under the Mortgage Loans and, in the case of a
Special Servicer, if a serviced Mortgage Loan comes into and continues in
default, and if, in the judgment of such Special Servicer, no satisfactory
arrangements can be made for the collection of the delinquent payments,
the maximization of the recovery on that Mortgage Loan to the
Certificateholders (as a collective whole), on a net present value basis;
but without regard to: (I) any relationship that a Master Servicer or Special
Servicer, as the case may be, or any Affiliate thereof may have with the related
Mortgagor; (II) the ownership of any Certificate by a Master Servicer or Special
Servicer, as the case may be, or any Affiliate thereof; (III) a Master
Servicer's obligation to make P&I Advances or Servicing Advances; (IV) a Special
Servicer's obligation to request that a Master Servicer make Servicing Advances;
(V) the right of a Master Servicer (or any Affiliate thereof) or Special
Servicer (or any Affiliate thereof), as the case may be, to receive
reimbursement of costs, or the sufficiency of any compensation payable to it
under this Agreement or with respect to any particular transaction; and (VI)
except with respect to the General Master Servicer, any obligation of the NCB
Master Servicer or any of its Affiliates (in their capacity as a Seller) to cure
a breach of a representation or warranty or repurchase any Mortgage Loan.
"Servicing Transfer Event" means the occurrence of any of the
following events: (i) a payment default shall have occurred on a Mortgage Loan
(x) at its Maturity Date (except, if (a) the Mortgagor is making its Assumed
Scheduled Payment, (b) the Mortgagor notifies the applicable Master Servicer of
its intent to refinance such Mortgage Loan and is diligently pursuing such
refinancing, (c) the Mortgagor delivers a firm commitment to refinance
acceptable to the Operating Advisor on or prior to the Maturity Date, and (d)
such refinancing occurs within 60 days of such default, which 60-day period may
be extended to 120 days at the Operating Advisor's discretion) or (y) if any
other payment is more than 60 days past due or has not been made on or before
the second Due Date following the date such payment was due; (ii) any Mortgage
Loan as to which, to the applicable Master Servicer's knowledge, the Mortgagor
has consented to the appointment of a receiver or conservator in any insolvency
or similar proceeding of, or relating to, such Mortgagor or to all or
substantially all of its property, or the Mortgagor has become the subject of a
decree or order issued under a bankruptcy, insolvency or similar law and such
decree or order shall have remained undischarged, undismissed or unstayed for a
period of 30 days; (iii) any Mortgage Loan as to which the Master Servicer shall
have received notice of the foreclosure or proposed foreclosure of any other
lien on the Mortgaged Property; (iv) any Mortgage Loan as to which the
applicable Master Servicer has knowledge of a default (other than a failure by
the related Mortgagor to pay principal or interest) which in the good faith
reasonable judgment of such Master Servicer materially and adversely affects the
interests of the Certificateholders and which has occurred and remains
unremedied for the applicable grace period specified in such Mortgage Loan (or,
if no grace period is specified, 60 days); (v) any Mortgage Loan as to which the
Mortgagor admits in writing its inability to pay its debts generally as they
become due, files a petition to take advantage of any applicable insolvency or
reorganization statute, makes an assignment for the benefit of its creditors or
voluntarily suspends payment of its obligations; and (vi) any Mortgage Loan as
to which, in the good faith reasonable judgment of the Master Servicer, (a) a
payment default is imminent or is likely to occur within 60 days and such
default, in the judgment of such Master Servicer, is reasonably likely to
materially and adversely affect the interests of the Certificateholders or (b)
any other default is imminent or is likely to occur within 60 days and such
default, in the judgment of such Master Servicer, is reasonably likely to
materially and adversely affect the interests of the Certificateholders.
"Similar Laws" has the meaning set forth in Section 3.3(d).
"Single-Purpose Entity" means a Person, other than an individual,
whose organizational documents provide substantially to the effect that it is
formed or organized solely for the purpose of owning and collecting payments
from Defeasance Collateral for the benefit of the Trust and which (i) does not
engage in any business unrelated thereto and the financing thereof; (ii) does
not have any assets other than those related to its interest in Defeasance
Collateral; (iii) maintains its own books, records and accounts, in each case
which are separate and apart from the books, records and accounts of any other
Person; (iv) conducts business in its own name and uses separate stationery,
invoices and checks; (v) does not guarantee or assume the debts or obligations
of any other Person; (vi) does not commingle its assets or funds with those of
any other Person; (vii) transacts business with Affiliates on an arm's length
basis pursuant to written agreements; and (viii) holds itself out as being a
legal entity, separate and apart from any other Person, and otherwise complies
with the single-purpose requirements established by the Rating Agencies. The
entity's organizational documents also provide that any dissolution and winding
up or insolvency filing for such entity requires the unanimous consent of all
partners or members, as applicable, and that such documents may not be amended
with respect to the Single-Purpose Entity requirements.
"Sole Certificateholder" means any Certificateholder (or
Certificateholders provided they act in unanimity) holding 100% of the then
outstanding Class X-1, Class X-2, Class X-Y, Class J, Class K, Class L, Class M,
Class N, Class O, Class P, Class EI and Class EI-L3 Certificates or an
assignment of the voting rights thereof; provided, however, that the Certificate
Balances of the Class A-1, Class A-1A, Class A-2, Class A-3-1FL, Class A-3-1,
Class A-3-2, Class A-AB, Class X-0X, Xxxxx X-0X, Xxxxx X-X, Class B, Class C,
Class D, Class E, Class F, Class G and Class H Certificates have been reduced to
zero.
"Special Servicer" means: (a) with respect to any Mortgage Loan
(other than a Co-op Mortgage Loan), any REO Property acquired by the Trust with
respect to a Mortgage Loan (other than a Co-op Mortgage Loan) and any matters
relating to the foregoing, the General Special Servicer and (b) with respect to
any Co-op Mortgage Loan, any REO Property acquired by the Trust with respect to
a Co-op Mortgage Loan and any matters relating to the foregoing, the Co-op
Special Servicer.
"Special Servicer Compensation" means, with respect to any
applicable period, the sum of the Special Servicing Fees, the Liquidation Fees
and Work-Out Fees and any other amounts to be paid to a Special Servicer
pursuant to the terms of this Agreement.
"Special Servicer Remittance Date" means the Business Day preceding
each Determination Date.
"Special Servicing Fee" means, for each calendar month, as to each
Mortgage Loan that is a Specially Serviced Mortgage Loan (including REO Mortgage
Loans), the fraction or portion of the Special Servicing Fee Rate applicable to
such month (determined using the same interest accrual methodology that is
applied with respect to the Mortgage Rate for such Mortgage Loan for such month)
multiplied by the Scheduled Principal Balance of such Specially Serviced
Mortgage Loan immediately before the Due Date occurring in such month.
"Special Servicing Fee Rate" means 0.25% per annum.
"Special Servicing Officer" means any officer or employee of the
applicable Special Servicer involved in, or responsible for, the administration
and servicing of the Specially Serviced Mortgage Loans whose name and specimen
signature appear on a list of servicing officers or employees furnished to the
Trustee, the Paying Agent and the applicable Master Servicer by such Special
Servicer signed by an officer of such Special Servicer, as such list may from
time to time be amended.
"Specially Designated Co-op Mortgage Loan" means, any Co-op Mortgage
Loan or any successor REO Mortgage Loan.
"Specially Serviced Mortgage Loan" means, as of any date of
determination, any Mortgage Loan with respect to which the applicable Master
Servicer has notified the applicable Special Servicer, the Operating Adviser and
the Trustee that a Servicing Transfer Event has occurred (which notice shall be
effective upon receipt) and such Special Servicer has received all information,
documents and records relating to such Mortgage Loan, as reasonably requested by
such Special Servicer to enable it to assume its duties with respect to such
Mortgage Loan. A Specially Serviced Mortgage Loan shall cease to be a Specially
Serviced Mortgage Loan from and after the date on which the applicable Special
Servicer notifies the applicable Master Servicer, the Operating Adviser, the
Paying Agent and the Trustee, in accordance with Section 8.1(b), that such
Mortgage Loan, with respect to such Servicing Transfer Event, has become a
Rehabilitated Mortgage Loan, unless and until such Master Servicer notifies such
Special Servicer, the Paying Agent and the Trustee, in accordance with Section
8.1(b) that another Servicing Transfer Event with respect to such Mortgage Loan,
exists or occurs.
"Standard Hazard Insurance Policy" means a fire and casualty
extended coverage insurance policy in such amount and with such coverage as
required by this Agreement.
"Sub-Servicer" has the meaning set forth in Section 8.4.
"Sub-Servicing Agreement" means the IXIS Sub-Servicing Agreement.
"Subordinate Certificates" means, collectively, the Class A-J, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class O and Class P Certificates.
"Successful Bidder" has the meaning set forth in Section 8.29(d).
"SunTrust" has the meaning assigned in the Preliminary Statement
hereto.
"SunTrust Loans" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to the Mortgage Loan Purchase Agreement VI and shown on
Schedule VI hereto.
"Swap Contract" means that certain ISDA Master Agreement, the
schedule thereto, confirmation (ref# HQ1WS) and credit support annex related to
the interest rate swap, each document dated as of October 25, 2005, with the
Swap Counterparty.
"Swap Counterparty" shall mean Xxxxxx Xxxxxxx Capital Services Inc.,
acting in such capacity or its successor in interest.
"Swap Counterparty Collateral Account" has the meaning set forth in
Section 8.30(f).
"Swap Default" shall mean, with respect to the Swap Contract, any
failure on the part of the Swap Counterparty to (i) make a required payment
under the Swap Contract or (ii) either post acceptable collateral or find an
acceptable replacement swap counterparty or credit support provider after a
Rating Agency Trigger Event as required by such Swap Contract.
"Swap Upfront Payment" has the meaning set forth in Section 2.2.
"Tax Matters Person" means the Person designated as the "tax matters
person" of the related REMIC Pool pursuant to Treasury Regulations Section
1.860F-4(d) and Temporary Treasury Regulations Section 301.6231(a)(7)-1T.
"Termination Price" has the meaning set forth in Section 10.1(b)
herein.
"30/360 basis" means any Mortgage Loan that accrues interest on the
basis of a 360-day year consisting of twelve 30-day months.
"Title Insurance Policy" means a title insurance policy maintained
with respect to a Mortgage Loan.
"Transfer" means any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transferee" means any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor" means any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"Trust" means the trust created pursuant to this Agreement, the
assets of which consist of all the assets of REMIC I (including the related
Mortgage Loans (other than Excess Interest and Additional L-3 Interest thereon),
such related amounts as shall from time to time be held in the Certificate
Accounts, the Distribution Account (other than the Excess Interest Sub-Account
and the Floating Rate Account), the Interest Reserve Account, the Reserve
Account, the REO Accounts, the Trustee's rights under the Insurance Policies,
any REO Properties and other items referred to in Section 2.1(a) hereof, in each
case to the extent allocable to the related Mortgage Loan), the REMIC I Regular
Interests, the REMIC II Regular Interests, REMIC III, the Swap Contract, the
Class A-3-1FL Regular Interest, the Floating Rate Account, Excess Interest,
Additional L-3 Interest and the Excess Interest Sub-Account.
"Trustee" means Xxxxx Fargo Bank, N.A., as trustee, or its
successor-in-interest, or if any successor trustee, or any co-trustee shall be
appointed as herein provided, then "Trustee" shall also mean such successor
trustee (subject to Section 7.7 hereof) and such co trustee (subject to Section
7.9 hereof), as the case may be.
"Trustee Fee" means for each calendar month, as to each Mortgage
Loan (including REO Mortgage Loans and Defeasance Loans), the portion of the
Trustee Fee Rate applicable to such month (determined using the same interest
accrual methodology (other than the rate of accrual) that is applied with
respect to the Mortgage Rate for such Mortgage Loan for such month) multiplied
by the Scheduled Principal Balance of each such Mortgage Loan immediately before
the Due Date occurring in such month.
"Trustee Fee Rate" means 0.00145% per annum.
"Trustee Mortgage File" means the mortgage documents listed in the
definition of Mortgage File hereof pertaining to a particular Mortgage Loan and
any additional documents required to be added to the Mortgage File pursuant to
this Agreement; provided that whenever the term "Trustee Mortgage File" is used
to refer to documents actually received by the Trustee or a Custodian on its
behalf, such terms shall not be deemed to include such documents required to be
included therein unless they are actually so received.
"UCC" means the Uniform Commercial Code as in effect from time to
time in the State of New York.
"UCMFI" has the meaning assigned in the Preliminary Statement
hereto.
"UCMFI Loans" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement V and shown on
Schedule III hereto.
"Underwriter" means each of Xxxxxx Xxxxxxx & Co. Incorporated,
Greenwich Capital Markets, Inc., IXIS Securities North America Inc. and SunTrust
Capital Markets Inc., or their respective successors-in-interest.
"United States Person" means (i) any natural person resident in the
United States, (ii) any partnership or corporation organized or incorporated
under the laws of the United States or any state thereof or the District of
Columbia, (iii) any estate of which an executor or administrator is a United
States Person (other than an estate governed by foreign law and of which at
least one executor or administrator is a non-United States Person who has sole
or shared investment discretion with respect to its assets), (iv) any trust of
which any trustee is a United States Person (other than a trust of which at
least one trustee is a non-United States Person and has sole or shared
investment discretion with respect to its assets), (v) any agency or branch of a
foreign entity located in the United States, (vi) any non-discretionary or
similar account (other than an estate or trust) held by a dealer or other
fiduciary for the benefit or account of a United States Person, (vii) any
discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary organized, incorporated or (if an individual) resident
in the United States (other than such an account held for the benefit or account
of a non-United States Person), (viii) any partnership or corporation organized
or incorporated under the laws of a foreign jurisdiction and formed by a United
States Person principally for the purpose of investing in securities not
registered under the 1933 Act (unless it is organized or incorporated, and
owned, by accredited investors within the meaning of Rule 501(A) under the 1933
Act who are not natural persons, estates or trusts); provided, however, that the
term "United States Person" shall not include (A) a branch or agency of a United
States Person that is located and operating outside the United States for valid
business purposes as a locally regulated branch or agency engaged in the banking
or insurance business, (B) any employee benefit plan established and
administered in accordance with the law, customary practices and documentation
of a foreign country and (C) the international organizations set forth in
Section 902(o)(7) of Regulation S under the 1933 Act and any other similar
international organizations, and their agencies, Affiliates and pension plans.
"United States Tax Person" means any of (i) a citizen or resident of
the United States, (ii) corporation or partnership (except to the extent
provided in applicable Treasury Regulations) created or organized in or under
the laws of the United States or any State thereof or the District of Columbia,
including any entity treated as such a corporation or partnership for federal
income tax purposes, (iii) an estate the income of which is includible in gross
income for United States tax purposes, regardless of its source or (iv) a trust
if a court within the United States is able to exercise primary supervision over
the administration of such trust, and one or more United States Tax Persons has
the authority to control all substantial decisions of such trust (or to the
extent provided in applicable Treasury Regulations, a trust in existence on
August 20, 1996, which is eligible to be treated as a United States Tax Person).
"Unliquidated Advance" means any Advance previously made by a party
hereto that has been previously reimbursed to the Person that made the Advance
by the Trust as part of a Workout-Delayed Reimbursement Amount pursuant to
subsection (iii) of Section 5.2(a)(II), but that has not been recovered from the
Mortgagor or otherwise from collections on or the proceeds of the Mortgage Loan
or REO Property in respect of which the Advance was made.
"Unpaid Interest" means, on any Distribution Date with respect to
any Class of Interests or Certificates (including the Class A-3-1FL Regular
Interest, but excluding the Class A-3-1FL Certificates, Residual Certificates,
Class EI-L3 Certificates and the Class EI Certificates), the portion of
Distributable Certificate Interest for such Class remaining unpaid as of the
close of business on the preceding Distribution Date, plus one month's interest
thereon at the applicable Pass-Through Rate.
"Unrestricted Servicer Reports" means, collectively, the CMSA
Delinquent Loan Status Report, CMSA Historical Loan Modification and Corrected
Mortgage Loan Report, CMSA Historical Liquidation Report and, if and to the
extent filed with the Commission, such reports and files as would, but for such
filing, constitute Restricted Master Servicer Reports.
"Weighted Average Class X-Y Strip Rate" means, with respect to any
Distribution Date, the weighted average of the Class X-Y Strip Rates for each of
the Group X-Y REMIC I Regular Interests, weighted on the basis of their
respective Notional Amounts as of the close of business on the preceding
Distribution Date.
"Weighted Average REMIC I Net Mortgage Rate" means, with respect to
any Distribution Date, the weighted average of the REMIC I Net Mortgage Rates
for the REMIC I Regular Interests, weighted on the basis of their respective
Certificate Balance as of the close of business on the preceding Distribution
Date.
"Workout-Delayed Reimbursement Amount" has the meaning set forth in
subsection (II)(A) of Section 5.2(a).
"Work-Out Fee" means a fee payable with respect to any Rehabilitated
Mortgage Loan, equal to the product of (x) 1.00% and (y) the amount of each
collection of interest (other than default interest, Excess Interest and
Additional L-3 Interest) and principal received (including any Condemnation
Proceeds received and applied as a collection of such interest and principal) on
such Mortgage Loan so long as it remains a Rehabilitated Mortgage Loan or
otherwise payable as set forth in Section 9.21(d).
"Yield Maintenance Charges" means, with respect to any Distribution
Date, the aggregate of all yield maintenance charges, if any, received during
the related Collection Period in connection with Principal Prepayments.
"Yield Maintenance Minimum Amount" means, with respect to a Mortgage
Loan that provides for a Yield Maintenance Charge to be paid in connection with
any Principal Prepayment thereon or other early collection of principal thereof,
any specified amount or specified percentage of the amount prepaid which
constitutes the minimum amount that such Yield Maintenance Charge may be.
Section 1.2 Calculations Respecting Mortgage Loans
(a) Calculations required to be made by the Paying Agent pursuant to
this Agreement with respect to any Mortgage Loan shall be made based upon
current information as to the terms of such Mortgage Loan and reports of
payments received from the applicable Master Servicer on such Mortgage Loan and
payments to be made to the Paying Agent as supplied to the Paying Agent by such
Master Servicer. The Paying Agent shall not be required to recompute, verify or
recalculate the information supplied to it by the applicable Master Servicer and
may conclusively rely upon such information in making such calculations. If,
however, a Responsible Officer of the Paying Agent has actual knowledge of an
error in the calculations, the Paying Agent shall inform the applicable Master
Servicer of such error.
(b) Unless otherwise required by law or the applicable Mortgage Loan
documents, any amounts (other than escrow and reserve deposits and
reimbursements of Servicing Advances and expenses) received in respect of a
Mortgage Loan as to which a default has occurred and is continuing (other than
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, Purchase
Proceeds and REO Income) shall be applied as follows: first, to overdue interest
due with respect to such Mortgage Loan at the Mortgage Rate thereof, second, to
current interest due with respect to such Mortgage Loan at the Mortgage Rate
thereof, third, to the reduction of the Principal Balance of such Mortgage Loan
to zero if such Mortgage Loan has been accelerated, and in respect of any
scheduled payments of principal then due to the extent that such Mortgage Loan
has not yet been accelerated, fourth, to any default interest and other amounts
due on such Mortgage Loan and fifth, to Late Fees due with respect to such
Mortgage Loan.
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds,
Purchase Proceeds and REO Income shall be applied as follows: first, as a
recovery of any related and unreimbursed Advances (together with interest
thereon) and Unliquidated Advances (to the Trust), and if applicable, unpaid
Liquidation Expenses; second, as a recovery of unpaid servicing compensation;
third, as a recovery of any Additional Trust Expenses; fourth, as a recovery of
any Nonrecoverable Advances and interest thereon, except with respect to any
Unliquidated Advance previously reimbursed from principal pursuant to Section
5.2(a)(II)(iv); fifth, as a recovery of any remaining accrued and unpaid
interest on such Mortgage Loan at the related Mortgage Rate to, but not
including, the date of receipt (or, in the case of a full monthly payment from
any Mortgagor, through the related Due Date); sixth, as a recovery of any
remaining principal of such Mortgage Loan then due and owing, including by
reason of acceleration of the Mortgage Loan following a default thereunder (or,
if a Liquidation Event has occurred in respect of such Mortgage Loan, as a
recovery of principal to the extent of its entire remaining unpaid Principal
Balance); seventh, unless a Liquidation Event has occurred with respect to such
Mortgage Loan, as a recovery of amounts to be currently applied to the payment
of real estate taxes, assessments, insurance premiums (including premiums on any
Environmental Insurance Policy), ground rents (if applicable) and similar items;
eighth, as a recovery of any Late Fees and default interest then due and owing
under such Mortgage Loan; ninth, as a recovery of any Prepayment Premium or
Yield Maintenance Charge then due and owing under such Mortgage Loan; tenth, as
a recovery of any assumption fees, Modification Fees and extension fees then due
and owing under such Mortgage Loan; and eleventh, as a recovery of any other
amounts then due and owing under such Mortgage Loan.
(c) Notwithstanding the foregoing applications of amounts received
by or on behalf of the Trust in respect of any Mortgage Loan, any amounts due
and owing under the related Mortgage Note and Mortgage (including for principal
and accrued and unpaid interest) shall be applied in accordance with the express
provisions of the related Mortgage Loan documents.
Section 1.3 Calculations Respecting Accrued Interest
Accrued interest on any Certificate (other than the Class A-3-1FL
Certificates) and on the Class A-3-1FL Regular Interest shall be calculated
based upon a 360-day year consisting of twelve 30-day months, and, unless there
is a Swap Default or the Swap Contract is terminated, accrued interest on the
Class A-3-1FL Certificates shall be calculated on the basis of the actual number
of days elapsed in the related Interest Accrual Period and a 360-day year. If a
Swap Default occurs and is continuing or if the Swap Contract is terminated and
no replacement swap contract is in effect, the Class A-3-1FL Certificates shall
accrue interest based upon a 360-day year consisting of twelve 30-day months.
Pass-Through Rates shall be carried out to eight decimal places, rounded if
necessary. All dollar amounts calculated hereunder shall be rounded to the
nearest xxxxx.
Section 1.4 Interpretation
(a) Whenever the Agreement refers to a Distribution Date and a
"related" Collection Period, Interest Accrual Period, Record Date, Due Date,
Report Date, Monthly Certificateholders Report, Special Servicer Remittance
Date, Master Servicer Remittance Date or Determination Date, such reference
shall be to the Collection Period, Interest Accrual Period, Record Date, Due
Date, Report Date, Special Servicer Remittance Date, Master Servicer Remittance
Date or Determination Date, as applicable, immediately preceding such
Distribution Date.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1 shall have the respective meanings given to them under generally accepted
accounting principles or regulatory accounting principles, as applicable.
(c) The words "hereof," "herein" and "hereunder," and words of
similar import, when used in this Agreement, shall refer to this agreement as a
whole and not to any particular provision of this Agreement, and references to
Sections, Schedules and Exhibits contained in this Agreement are references to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified.
(d) Whenever a term is defined herein, the definition ascribed to
such term shall be equally applicable to both the singular and plural forms of
such term and to masculine, feminine and neuter genders of such term.
(e) This Agreement is the result of arm's-length negotiations
between the parties and has been reviewed by each party hereto and its counsel.
Each party agrees that any ambiguity in this Agreement shall not be interpreted
against the party drafting the particular clause which is in question.
Section 1.5 ARD Loan
Notwithstanding any provision of this Agreement:
(a) For the ARD Loan, the Excess Interest accruing as a result of
the step-up in the Mortgage Rate upon failure of the related Mortgagor to pay
the principal on the Anticipated Repayment Date as specifically provided for in
the related Mortgage Note shall not be taken into account for purposes of the
definitions of "Appraisal Reduction," "Assumed Scheduled Payment," "Mortgage
Rate," "Purchase Price" and "Realized Loss."
(b) Excess Interest shall constitute an asset of the Trust but not
an asset of any REMIC Pool.
(c) Neither a Master Servicer nor a Special Servicer shall take any
enforcement action with respect to the payment of Excess Interest unless the
taking of such action is consistent with the Servicing Standard and all other
amounts due under such Mortgage Loan have been paid, and, in the good faith and
reasonable judgment of such Master Servicer and such Special Servicer, as the
case may be, the Liquidation Proceeds expected to be recovered in connection
with such enforcement action will cover the anticipated costs of such
enforcement action and, if applicable, any associated interest thereon.
(d) Liquidation Fees shall not be deemed to be earned on Excess
Interest.
(e) With respect to the ARD Loan after its Anticipated Repayment
Date, the respective Master Servicer or the respective Special Servicer, as the
case may be, shall be permitted, in its discretion, to waive in accordance with
Section 8.18 and Section 9.5 hereof, all or any accrued Excess Interest if,
prior to the related Maturity Date, the related Mortgagor has requested the
right to prepay the Mortgage Loan in full together with all payments required by
the Mortgage Loan in connection with such prepayment except for all or a portion
of accrued Excess Interest, provided that the respective Master Servicer's or
the respective Special Servicer's determination to waive the right to such
accrued Excess Interest is in accordance with the Servicing Standard and with
Section 8.18 and Section 9.5 hereof. The respective Master Servicer or the
respective Special Servicer, as the case may be, will have no liability to the
Trust, the Certificateholders or any other Person so long as such determination
is based on such criteria.
Section 1.6 L-3 Communications Mortgage Loan.
(a) With respect to the L-3 Communications Mortgage Loan, any
accrued Additional L-3 Interest shall not be taken into account for purposes of
the definitions of "Appraisal Reduction," "Assumed Scheduled Payment," "Mortgage
Rate," "Purchase Price" and "Realized Loss."
(b) Additional L-3 Interest shall constitute an asset of the Trust
but not an asset of any REMIC Pool.
(c) Neither a Master Servicer nor a Special Servicer shall take any
enforcement action with respect to the payment of Additional L-3 Interest unless
the taking of such action is consistent with the Servicing Standard and all
other amounts due under such Mortgage Loan have been paid, and, in the good
faith and reasonable judgment of such Master Servicer and such Special Servicer,
as the case may be, the Liquidation Proceeds expected to be recovered in
connection with such enforcement action will cover the anticipated costs of such
enforcement action and, if applicable, any associated interest thereon.
(d) Liquidation Fees shall not be deemed to be earned on Additional
L-3 Interest.
(e) With respect to the L-3 Communications Mortgage Loan after its
Maturity Date, the General Master Servicer or the General Special Servicer, as
the case may be, shall be permitted, in its discretion, to waive in accordance
with Section 8.18 and Section 9.5 hereof, all or any accrued Additional L-3
Interest if, prior to the related Maturity Date, the related Mortgagor has
requested the right to prepay the Mortgage Loan in full together with all
payments required by the Mortgage Loan in connection with such prepayment except
for all or a portion of accrued Additional L-3 Interest, provided that the
General Master Servicer's or the General Special Servicer's determination to
waive the right to such accrued Additional L-3 Interest is in accordance with
the Servicing Standard and with Section 8.18 and Section 9.5 hereof. The General
Master Servicer or the General Special Servicer, as the case may be, will have
no liability to the Trust, the Certificateholders or any other Person so long as
such determination is based on such criteria.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans
(a) Effective as of the Closing Date, the Depositor does hereby
assign in trust to the Trustee, without recourse, for the benefit of the
Certificateholders all the right, title and interest of the Depositor, in, to
and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule, (ii)
the Depositor's rights under each Mortgage Loan Purchase Agreement that are
permitted to be assigned to the Trustee pursuant to Section 14 thereof, (iii)
the Initial Deposit (which shall be paid to the Trustee on the Closing Date) and
(iv) all other assets included or to be included in REMIC I for the benefit of
REMIC II and REMIC III. Such assignment includes all interest and principal
received or receivable on or with respect to the Mortgage Loans and due after
the Cut-Off Date. The transfer of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and is intended by the parties to
constitute a sale. In connection with the initial sale of the Certificates by
the Depositor, the purchase price to be paid includes a portion attributable to
interest accruing on the Certificates from and after the Cut-Off Date.
(b) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each Seller pursuant to the applicable Mortgage
Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered
to and deposited with, the Trustee or a Custodian appointed hereunder, on or
before the Closing Date, the Mortgage Note for each Mortgage Loan so assigned,
endorsed to the Trustee as specified in clause (i) of the definition of
"Mortgage File." Each Seller is required, pursuant to the applicable Mortgage
Loan Purchase Agreement, to deliver to the Trustee the remaining documents
constituting the Mortgage File for each Mortgage Loan within the time period set
forth therein. None of the Trustee, the Paying Agent, any Custodian, any Master
Servicer or any Special Servicer shall be liable for any failure by any Seller
or the Depositor to comply with the document delivery requirements of the
Mortgage Loan Purchase Agreements and this Section 2.1(b).
(c) Each Seller other than IXIS and NCB, FSB, at its own expense,
for the Mortgage Loans sold to the Depositor by such Seller, and the Trustee, at
the expense of IXIS and NCB, FSB, as applicable, for the IXIS Loans sold to the
Depositor by IXIS and the NCB, FSB Loans sold to the Depositor by NCB, FSB,
shall promptly (and in any event within 90 days following the receipt of all
recording information necessary to record such document) cause to be submitted
for recording or filing, as the case may be, in the appropriate public office
for real property records or UCC financing statements, as appropriate, each
assignment to the Trustee referred to in clauses (iv), (vi)(B) and (ix)(B) of
the definition of "Mortgage File". Each such assignment shall reflect that it
should be returned by the public recording office to the Trustee following
recording or filing; provided that in those instances where the public recording
office retains the original Assignment of Mortgage, assignment of Assignment of
Leases or assignment of UCC financing statements, the Trustee shall obtain
therefrom, at the expense of the applicable Seller, a certified copy of the
recorded original and shall forward copies thereof to the applicable Master
Servicer and the applicable Special Servicer. If any such document or instrument
is lost or returned unrecorded or unfiled, as the case may be, because of a
defect therein, the Trustee shall promptly notify the applicable Seller and the
applicable Seller for its respective Mortgage Loans shall promptly prepare or
cause to be prepared and delivered to the Trustee a substitute therefor or cure
such defect, as the case may be, and thereafter the Trustee shall upon receipt
thereof from such Seller cause the same to be duly recorded or filed, as
appropriate.
The parties acknowledge the obligation of each Seller pursuant to
Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the
Trustee, on or before the fifth Business Day after the Closing Date, five
limited powers of attorney substantially in the form attached as Exhibit C to
the Primary Servicing Agreements or Exhibit 5 to the Mortgage Loan Purchase
Agreements in favor of the Trustee, the applicable Master Servicer and the
applicable Special Servicer to empower the Trustee, such Master Servicer and, in
the event of the failure or incapacity of the Trustee and such Master Servicer,
such Special Servicer, to submit for recording, at the expense of the applicable
Seller, any mortgage loan documents required to be recorded as described in the
preceding paragraph and any intervening assignments with evidence of recording
thereon that are required to be included in the Mortgage Files (so long as
original counterparts have previously been delivered to the Trustee). The
Sellers agree to reasonably cooperate with the Trustee, the Master Servicer and
the Special Servicer in connection with any additional powers of attorney or
revisions thereto that are requested by such parties for purposes of such
recordation. The Trustee and each other party hereto agrees that no such power
of attorney shall be used with respect to any Mortgage Loan by or under
authorization by any party hereto except that to the extent that the absence of
a document described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to the related Seller, but
in no event earlier than 18 months from the Closing Date, and (ii) the date (if
any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The
Trustee shall submit such documents for recording, at the related Seller's
expense, after the periods set forth above; provided, however, the Trustee shall
not submit such assignments for recording if the applicable Seller produces
evidence that it has sent any such assignment for recording and certifies that
it is awaiting its return from the applicable recording office.
(d) All relevant servicing or loan documents and records in the
possession of the Depositor or the Sellers that relate to the servicing of any
Mortgage Loans and that are not required to be a part of a Mortgage File in
accordance with the definition thereof and are reasonably necessary for the
ongoing administration and/or servicing of the applicable Mortgage Loan shall be
delivered to the Master Servicer (with a copy to the related Primary Servicer,
if applicable), on or before the date that is 75 days following the Closing Date
and shall be held by such Master Servicer or the related Primary Servicer on
behalf of the Trustee in trust for the benefit of the Certificateholders. To the
extent delivered to the Master Servicer and the related Sub-Servicer or the
related Primary Servicer, as applicable, by the related Seller, the Servicer
Mortgage File will consist of the documents listed in the definition of Mortgage
File; provided, however, the Seller shall not be required to deliver any draft
documents, attorney-client privileged communications, internal correspondence or
credit analysis. Delivery of any of the foregoing documents to the applicable
Primary Servicer (or sub-servicer) shall be deemed delivery to the applicable
Master Servicer and satisfy the Depositor's obligations under this Section
2.1(d). Each of the foregoing items shall be delivered in electronic form, to
the extent such document is available in such form and such form is reasonably
acceptable to the applicable Master Servicer. None of any Master Servicer, any
Special Servicer or any Primary Servicer shall have any liability for the
absence of any of the foregoing items from the Servicing Mortgage File if such
item was not delivered by the related Seller.
(e) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall deliver to the Trustee and the Master
Servicer on or before the Closing Date a copy of a fully executed counterpart of
each Mortgage Loan Purchase Agreement, as in full force and effect on the
Closing Date, which Mortgage Loan Purchase Agreements shall contain the
representations and warranties made by the Sellers with respect to each related
Mortgage Loan as of the Closing Date.
(f) In connection herewith, the Depositor has acquired the MSMC
Loans from MSMC, the IXIS Loans from IXIS, the MM Loans from MM, the NCB, FSB
Loans from NCB, FSB, the UCMFI Loans from UCMFI and the SunTrust Loans from
SunTrust. The Depositor will deliver the original Mortgage Notes (or lost note
affidavits with copies of the related Mortgage Notes, as described in the
definition of Mortgage File) relating to the MSMC Loans to the Trustee, endorsed
as otherwise provided herein, to effect the transfer to the Trustee of such
Mortgage Notes and all related deeds of trust, mortgages and other loan
documents. The Depositor will deliver the original Mortgage Notes (or lost note
affidavits with copies of the related Mortgage Notes, as described in the
definition of Mortgage File) relating to the IXIS Loans to the Trustee, endorsed
as otherwise provided herein, to effect the transfer to the Trustee of such
Mortgage Notes and all related deeds of trust, mortgages and other loan
documents. The Depositor will deliver the original Mortgage Notes (or lost note
affidavits with copies of the related Mortgage Note, as described in the
definition of Mortgage File) relating to the MM Loans to the Trustee, endorsed
as otherwise provided herein, to effect the transfer to the Trustee of such
Mortgage Notes and all related deeds of trust, mortgages and other loan
documents. The Depositor will deliver the original Mortgage Notes (or lost note
affidavits with copies of the related Mortgage Notes, as described in the
definition of Mortgage File) relating to the NCB, FSB Loans to the Trustee,
endorsed as otherwise provided herein, to effect the transfer to the Trustee of
such Mortgage Notes and all related deeds of trust, mortgages and other loan
documents. The Depositor will deliver the original Mortgage Notes (or lost note
affidavits with copies the related Mortgage Note, as described in the definition
of Mortgage File) relating to the UCMFI Loans to the Trustee, endorsed as
otherwise provided herein, to effect the transfer to the Trustee of such
Mortgage Notes and all related deeds of trust, mortgages and other loan
documents. The Depositor will deliver the original Mortgage Notes (or lost note
affidavits with copies of the related Mortgage Notes, as described in the
definition of Mortgage File) relating to the SunTrust Loans to the Trustee,
endorsed as otherwise provided herein, to effect the transfer to the Trustee of
such Mortgage Notes and all related deeds of trust, mortgages and other loan
documents. To avoid the unnecessary expense and administrative inconvenience
associated with the execution and recording of multiple assignment documents,
MSMC, IXIS, MM, NCB, FSB, UCMFI and SunTrust, as applicable, are required under
the Mortgage Loan Purchase Agreements to deliver Assignments of Mortgages and
assignments of Assignments of Leases and assignments of UCC financing statements
in blank or naming the Trustee, on behalf of the Certificateholders, as
assignee. Notwithstanding the fact that the assignments shall be in blank or
name the Trustee, on behalf of the Certificateholders, as the assignee, the
parties hereto acknowledge and agree that for all purposes the MSMC Loans shall
be deemed to have been transferred from MSMC to the Depositor, the IXIS Loans
shall be deemed to have been transferred from IXIS to the Depositor, the MM
Loans shall be deemed to have been transferred from MM to the Depositor, the
NCB, FSB Loans shall be deemed to have been transferred from NCB, FSB to the
Depositor, the UCMFI Loans shall be deemed to have been transferred from UCMFI
to the Depositor, the SunTrust Loans shall be deemed to have been transferred
from SunTrust to the Depositor, and all Mortgage Loans shall be deemed to have
been transferred from the Depositor to the Trustee on behalf of the
Certificateholders.
Section 2.2 Acceptance by Trustee
The Trustee will hold (i) the documents constituting a part of the
Mortgage Files delivered to it, (ii) the REMIC I Regular Interests, (iii) the
REMIC II Regular Interests, (iv) the assets of the Class A-3-1FL Grantor Trust
and (v) the assets of the Class EI/Class EI-L3 Grantor Trust, in each case, in
trust for the use and benefit of all present and future Certificateholders. In
connection with the entering into of the Swap Contract, the Trustee, on behalf
of the Trust, will be paid an upfront payment by the Swap Counterparty with
respect to the Class A-3-1FL Certificates (the "Swap Upfront Payment"). On the
Closing Date, the Trustee is hereby directed to pay the Swap Upfront Payment to
the Depositor to an account designated by it.
On the Closing Date in respect of the Initial Certification, and
within 90 days after the Closing Date in respect of the Final Certification, the
Trustee shall examine the Mortgage Files in its possession, and shall deliver to
the Depositor, the Sellers, the Master Servicers, the Special Servicers and the
Operating Adviser, a certification (the "Initial Certification" and the "Final
Certification," respectively, in the respective forms set forth as Exhibit B-1
and Exhibit B-2 hereto), which may be in electronic format (i) in the case of
the Initial Certification, as to each Mortgage Loan listed in the Mortgage Loan
Schedule, except as may be specified in the schedule of exceptions to Mortgage
File delivery attached thereto, to the effect that: (A) all documents pursuant
to clause (i) of the definition of Mortgage File are in its possession, (B) such
documents have been reviewed by it and have not been materially mutilated,
damaged, defaced, torn or otherwise physically altered, and such documents
relate to such Mortgage Loan, and (C) each Mortgage Note has been endorsed as
provided in clause (i) of the definition of Mortgage File, and (ii) in the case
of the Final Certification, as to each Mortgage Loan listed in the Mortgage Loan
Schedule, except as may be specified in the schedule of exceptions to Mortgage
File delivery attached thereto, to the effect that: (A) all documents pursuant
to clauses (i), (ii), (iv), (vi), (viii) and (xii) of the definition of Mortgage
File required to be included in the Mortgage File (to the extent required to be
delivered pursuant to this Agreement and any applicable Primary Servicing
Agreement), and with respect to all documents specified in the other clauses of
the definition of Mortgage File to the extent actually known by a Responsible
Officer of the Trustee to be required pursuant to this Agreement (assuming that,
with respect to the documents referred to in clause (xii) of the definition of
Mortgage File, an original letter of credit in the possession of the Trustee is
not so required, unless a Responsible Officer of the Trustee has actual
knowledge to the contrary), are in its possession, (B) such documents have been
reviewed by it and have not been materially mutilated, damaged, defaced, torn or
otherwise physically altered, and such documents relate to such Mortgage Loan,
(C) based on its examination and only as to the Mortgage Note and Mortgage or
the appraisal of the related Mortgaged Property, the street address of the
Mortgaged Property set forth in the Mortgage Loan Schedule respecting such
Mortgage Loan accurately reflects the information contained in the documents in
the Mortgage File, and (D) each Mortgage Note has been endorsed as required by
the terms of this Agreement. Notwithstanding the foregoing, the delivery of an
original or a copy of a binder, pro forma policy or title commitment certified
by the title company in lieu of the delivery of the actual Title Insurance
Policy shall not be considered a Material Document Defect with respect to any
Mortgage File. The Trustee shall deliver to the Master Servicers, the Special
Servicers, the Operating Adviser and each Seller a copy of such Final
Certification, which may be in electronic format.
Within 360 days after the Cut-Off Date, the Trustee shall provide a
confirmation of receipt of recorded assignments of Mortgage (as described in the
definition of Mortgage File, with evidence of recording thereon) or otherwise
provide evidence of such recordation to the applicable Master Servicer, the
applicable Special Servicer, the Operating Adviser and each Seller, and if any
recorded assignment of Mortgage has not been received by the Trustee by such
time, the Trustee shall provide information in such confirmation on the status
of missing assignments. The Trustee agrees to use reasonable efforts to submit
for recording any unrecorded assignments of Mortgage that have been delivered to
it (including effecting such recordation process through or cooperating with the
applicable Seller) such recordation to be at the expense of the applicable
Seller; provided, however, that the Trustee shall not submit for recording any
such assignments if the applicable Seller produces evidence that it has sent any
such assignment for recording and is awaiting its return from the applicable
recording office. In giving the certifications required above, the Trustee shall
be under no obligation or duty to inspect, review or examine any such documents,
instruments, securities or other papers to determine whether they or the
signatures thereon are valid, legal, genuine, enforceable, in recordable form or
appropriate for their represented purposes, or that they are other than what
they purport to be on their face, or to determine whether any Mortgage File
should include any assumption agreement, modification agreement, consolidation
agreement, extension agreement, Assignment of Lease, ground lease, UCC financing
statement, guaranty, written assurance, substitution agreement, lock box
agreement, intercreditor agreement, management agreement or letter of credit.
If any exceptions are noted on a schedule of exceptions attached to
the Final Certification, including exceptions resulting from the fact that the
recordation and/or filing has not been completed (based solely on the absence of
receipt by the Custodian (or the Trustee) of the particular documents showing
evidence of the recordation and/or filing), then the Custodian on behalf of the
Trustee (or the Trustee) shall continuously update such schedule of exceptions
to reflect receipt of any corrected documents, additional documents or
instruments or evidences of recordation and/or filing, as to each Mortgage Loan,
until the earliest of the following dates: (i) the date on which all such
exceptions are eliminated (any such elimination resulting from the fact that
recordation and/or filing has been completed shall be based solely on receipt by
the Custodian or the Trustee of the particular documents showing evidence of the
recordation and/or filing), (ii) the date on which all the affected Mortgage
Loans are removed from the Trust and (iii) the second anniversary of the Closing
Date, and shall provide such updated schedule of exceptions (which may be in
electronic format) to each of the Depositor, each Seller (as to its respective
Mortgage Loans only), the applicable Master Servicer, the applicable Special
Servicer, the Operating Adviser and the Paying Agent on or about the date that
is 180 days after the Closing Date and then again every 90 days thereafter
(until the earliest date specified above, except, with respect to clause (iii)
above, the Trustee shall continue to provide such updated schedule of exceptions
annually after such date). The Paying Agent shall promptly forward a copy
thereof to each Certificateholder in the Controlling Class and shall deliver or
make available a copy thereof to other Certificateholders pursuant to Sections
5.4(e) and 5.4(f). Promptly, and in any event within two Business Days,
following any request therefor by the Depositor, the applicable Master Servicer,
the applicable Special Servicer or the Operating Adviser that is made later than
two years following the Closing Date, the Custodian (or the Trustee) shall
deliver an updated schedule of exceptions, which may be in electronic format (to
the extent the prior schedule showed exceptions), to the requesting Person and
the Paying Agent, which shall make available a copy thereof pursuant to Section
5.4(e).
The Trustee or its authorized agents shall retain possession and
custody of each Trustee Mortgage File in accordance with and subject to the
terms and conditions set forth herein.
The Master Servicer agrees to hold all of the original letters of
credit, which are part of the Mortgage File, in trust for the benefit of the
Trust Fund.
Section 2.3 Repurchase of Mortgage Loans for Material Document
Defects and Material Breaches of Representations and Warranties
(a) If any party hereto discovers that any document or documents
constituting a part of a Mortgage File has not been delivered as and when
required (and including the expiration of any grace or cure period), has not
been properly executed, or is defective on its face or discovers or receives
notice of a breach of any of the representations and warranties relating to the
Mortgage Loans required to be made by a Seller regarding the characteristics of
the Mortgage Loans and/or related Mortgaged Properties as set forth in the
related Mortgage Loan Purchase Agreements, and in either case such defect or
breach either (i) materially and adversely affects the interests of the holders
of the Certificates in the related Mortgage Loan, or (ii) both (A) the document
defect or breach materially and adversely affects the value of the Mortgage Loan
and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated
Mortgage Loan (such a document defect described in the preceding clause (i) or
(ii), a "Material Document Defect," and such a breach described in the preceding
clause (i) or (ii), a "Material Breach") such party shall give prompt written
notice to the other parties hereto and to each Rating Agency subject to the
terms of the applicable Mortgage Loan Purchase Agreement. Promptly (but in any
event within three Business Days) upon becoming aware of any such Material
Document Defect or Material Breach, the applicable Master Servicer shall, and
the applicable Special Servicer may, request that the related Seller, not later
than 90 days from such Seller's receipt of the notice of such Material Document
Defect or Material Breach, cure such Material Document Defect or Material
Breach, as the case may be, in all material respects; provided, however, that if
such Material Document Defect or Material Breach, as the case may be, cannot be
corrected or cured in all material respects within such 90-day period, and such
Material Document Defect or Material Breach would not cause the Mortgage Loan to
be other than a "qualified mortgage" (as defined in the Code) but the related
Seller is diligently attempting to effect such correction or cure, as certified
by such Seller in an Officer's Certificate delivered to the Trustee, then the
cure period will be extended for an additional 90 days unless, solely in the
case of a Material Document Defect, (x) the Mortgage Loan is at the end of the
initial 90 day period a Specially Serviced Mortgage Loan and a Servicing
Transfer Event has occurred as a result of a monetary default or as described in
clause (ii) or clause (v) of the definition of "Servicing Transfer Event" and
(y) the Material Document Defect was identified in a certification delivered to
the Seller by the Trustee pursuant to Section 2.2 not less than 90 days prior to
the delivery of the notice of such Material Document Defect. The parties
acknowledge that neither delivery of a certification or schedule of exceptions
to a Seller pursuant to Section 2.2 or otherwise nor possession of such
certification or schedule by the Seller shall, in and of itself, constitute
delivery of notice of any Material Document Defect or knowledge or awareness by
the Seller of any Material Document Defect listed therein. Notwithstanding
anything herein to the contrary, any breach of the representation and warranty
contained under the heading "Prepayment Premiums" in Exhibit 2 to each Mortgage
Loan Purchase Agreement with respect to any Mortgage Loan shall constitute a
Material Breach only if such prepayment premium or yield maintenance charge is
not deemed "customary" for commercial mortgage loans at the time of origination,
as evidenced by (i) an opinion of tax counsel to such effect or (ii) a
determination by the Internal Revenue Service that such provision is not
customary. In addition, if such Mortgage Loan is modified so that it becomes a
Qualified Substitute Mortgage Loan, such breach shall be deemed cured and the
related Seller will not be obligated to repurchase such Mortgage Loan or
otherwise remedy such breach. The related Seller is required to pay for any
expenses incurred by the applicable Master Servicer or the applicable Special
Servicer in connection with such modification.
If any such Material Document Defect or Material Breach cannot be
corrected or cured in all material respects within the above cure periods, the
related Seller that is the subject of such Material Breach shall be obligated,
not later than the last day of such permitted cure period, to (i) repurchase the
affected Mortgage Loan or REO Mortgage Loan from the Trust at the applicable
Purchase Price in accordance with the related Mortgage Loan Purchase Agreement,
or (ii) if within the two-year period commencing on the Closing Date, at the
related Seller's option, replace, without recourse, such Mortgage Loan or REO
Mortgage Loan with a Qualifying Substitute Mortgage Loan. If such Material
Document Defect or Material Breach would cause the Mortgage Loan to be other
than a "qualified mortgage" (as defined in the Code), then notwithstanding the
previous sentence, the repurchase or substitution must occur within 90 days from
the earlier of the date the related Seller discovered or was notified of the
breach or defect.
As to any Qualifying Substitute Mortgage Loan or Loans, the
applicable Master Servicer shall not execute any instrument effecting the
substitution unless the related Seller has delivered to the Trustee for such
Qualifying Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage,
the related Assignment of Mortgage, and such other documents and agreements as
are required by Section 2.1, with the Mortgage Note endorsed as required by
Section 2.1 and such Master Servicer shall be entitled to rely on statements and
certifications from the Trustee for this purpose. No substitution may be made in
any calendar month after the Determination Date for such month. Monthly payments
due with respect to Qualifying Substitute Mortgage Loans in the month of
substitution shall not be part of the Trust and will be retained by the
applicable Master Servicer and remitted by such Master Servicer to the related
Seller on the next succeeding Distribution Date. For the month of substitution,
distributions to Certificateholders will include the Scheduled Payment due on
the related Deleted Mortgage Loan for such month and thereafter the related
Seller shall be entitled to retain all amounts received in respect of such
Deleted Mortgage Loan.
The applicable Master Servicer shall amend or cause to be amended
the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan
and the substitution of the Qualifying Substitute Mortgage Loan or Loans and
upon such amendment such Master Servicer shall deliver or cause to be delivered
such amended Mortgage Loan Schedule to the Trustee, the Paying Agent and the
applicable Special Servicer. Upon such substitution, the Qualifying Substitute
Mortgage Loan or Loans shall be subject to the terms of this Agreement in all
respects. Upon receipt of the Trustee Mortgage File pertaining to any Qualifying
Substitute Mortgage Loans, the Trustee shall release the Trustee Mortgage File
relating to such Deleted Mortgage Loan to the related Seller, and the Trustee
(and the Depositor, if necessary) shall execute and deliver such instruments of
transfer or assignment in the form presented to it, in each case without
recourse, representation or warranty, as shall be necessary to vest title (to
the extent that such title was transferred to the Trustee or the Depositor) in
the related Seller or its designee to any Deleted Mortgage Loan (including any
property acquired in respect thereof or any insurance policy proceeds relating
thereto) substituted for pursuant to this Section 2.3.
If (i) a Mortgage Loan is to be repurchased or replaced in
connection with a Material Document Defect or Material Breach as contemplated
above, (ii) such Mortgage Loan is cross-collateralized and cross-defaulted with
one or more other Mortgage Loans and (iii) the applicable document defect or
breach does not constitute a Material Document Defect or Material Breach, as the
case may be, as to such other Mortgage Loans (without regard to this paragraph),
then the applicable document defect or breach (as the case may be) shall be
deemed to constitute a Material Document Defect or Material Breach (as the case
may be) as to each such other Mortgage Loan for purposes of the above
provisions, and the related Seller shall be obligated to repurchase or replace
each such other Mortgage Loan in accordance with the provisions above unless, in
the case of such breach or document defect, both of the following conditions
would be satisfied if the related Seller were to repurchase or replace only
those Mortgage Loans as to which a Material Breach or Material Document Defect
had occurred without regard to this paragraph (the "Affected Loan(s)"): (1) the
debt service coverage ratio for all such other Mortgage Loans (excluding the
Affected Loan(s)) for the four calendar quarters immediately preceding the
repurchase or replacement (determined as provided in the definition of Debt
Service Coverage Ratio, except that net cash flow for such four calendar
quarters, rather than year-end, shall be used) is equal to the greater of (x)
the debt service coverage ratio for all such Mortgage Loans (including the
Affected Loan(s)) set forth under the heading "NCF DSCR" in Appendix II to the
Final Prospectus Supplement and (y) 1.25x, and (2) the Loan-to-Value Ratio for
all such other Mortgage Loans (excluding the Affected Loan(s)) is not greater
than the lesser of (x) the current Loan-to-Value Ratio for all such Mortgage
Loans (including the Affected Loan(s)) set forth under the heading "Cut-Off Date
LTV" in Appendix II to the Final Prospectus Supplement and (y) 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 Seller to (in which case the related Seller
shall) cause to be delivered to such Master Servicer: (i) an Appraisal of any or
all of the related Mortgaged Properties for purposes of determining whether the
condition set forth in clause (2) above has been satisfied, in each case at the
expense of the related Seller if the scope and cost of the Appraisal is approved
by the related Seller (such approval not to be unreasonably withheld) and (ii)
an Opinion of Counsel that not requiring the repurchase of each such other
Mortgage Loan will not result in an Adverse REMIC Event.
With respect to any Mortgage Loan that is cross-defaulted and
cross-collateralized with any other Mortgage Loan conveyed hereunder, to the
extent that the applicable Seller is required to repurchase or substitute for
such Mortgage Loan (each, a "Repurchased Loan") in the manner prescribed above
while the Trustee continues to hold any other Mortgage Loan that is
cross-collateralized and cross-defaulted (each, a "Cross-Collateralized Loan")
with such Repurchased Loan, the related Seller and the Depositor have agreed in
the Mortgage Loan Purchase Agreement to modify, prior to such repurchase or
substitution, the related Mortgage Loan documents in a manner such that such
affected Repurchased Loan, on the one hand, and any related
Crossed-Collateralized Loans held by the Trustee, on the other, would no longer
be cross-defaulted or cross-collateralized with one another; provided that the
applicable Seller shall have furnished the Trustee, at the expense of the
applicable Seller, with a Nondisqualification Opinion that such modification
shall not cause an Adverse REMIC Event; provided, further, that if such
Nondisqualification Opinion cannot be furnished, the applicable Seller and the
Depositor have agreed in the applicable Mortgage Loan Purchase Agreement that
such repurchase or substitution of only the Repurchased Loan, notwithstanding
anything to the contrary herein, shall not be permitted and the applicable
Seller shall repurchase or substitute for the Repurchased Loan and all related
Crossed-Collateralized Loans. Any reserve or other cash collateral or letters of
credit securing the Repurchased Loan and the Cross-Collateralized Loans shall be
allocated between such Mortgage Loans in accordance with the Mortgage Loan
documents. All other terms of the Mortgage Loans shall remain in full force and
effect, without any modification thereof. The Mortgagors set forth on Schedule
VII hereto are intended third-party beneficiaries of the provisions set forth in
this paragraph and the preceding paragraph. The provisions of this paragraph and
the preceding paragraph may not be modified with respect to any Mortgage Loan
without the related Mortgagor's consent.
Upon occurrence (and after any applicable cure or grace period), any
of the following document defects shall be conclusively presumed materially and
adversely to affect the interests of Certificateholders in a Mortgage Loan and
be a Material Document Defect: (a) the absence from the Mortgage File of the
original signed Mortgage Note, unless the Mortgage File contains a signed lost
note affidavit and indemnity and a copy of the Mortgage Note; (b) the absence
from the Mortgage File of the original signed Mortgage, unless there is included
in the Mortgage File (i) a copy of the Mortgage certified by the local authority
with which the Mortgage was recorded or (ii) a true and correct copy of the
Mortgage together with an Officer's Certificate; or (c) the absence from the
Mortgage File of the item called for by paragraph (viii) of the definition of
Mortgage File. If any of the foregoing Material Document Defects is discovered
by the Custodian (or the Trustee if there is no Custodian) or any other party
hereto, the Trustee (or as set forth in Section 2.3(a), the applicable Master
Servicer) will take the steps described elsewhere in this section, including the
giving of notices to the Rating Agencies and the parties hereto and making
demand upon the related Seller for the cure of the document defect or repurchase
or replacement of the related Mortgage Loan.
(b) If the related Seller disputes that a Material Document Defect
or Material Breach exists with respect to a Mortgage Loan or otherwise refuses
(i) to effect a correction or cure of such Material Document Defect or Material
Breach, (ii) to repurchase the affected Mortgage Loan from the Trust or (iii) to
replace such Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in
accordance with the related Mortgage Loan Purchase Agreement, then provided that
(x) the period of time provided for the related Seller to correct, repurchase or
cure has expired and (y) the Mortgage Loan is then in default and is then a
Specially Serviced Mortgage Loan, the applicable Special Servicer may, subject
to the Servicing Standard, modify, work-out or foreclose, sell or otherwise
liquidate (or permit the liquidation of) the Mortgage Loan pursuant to Section
9.5, Section 9.12, Section 9.15 and Section 9.36, as applicable, of this
Agreement, while pursuing the repurchase claim. Each Seller acknowledges and
agrees that any modification of the Mortgage Loan pursuant to such a work-out
shall not constitute a defense to any repurchase claim nor shall such
modification or work-out change the Purchase Price due from the related Seller
for any repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon
such Mortgage Loan and sale of the REO Property, to a Person other than the
related Seller shall be without (i) recourse of any kind (either expressed or
implied) by such Person against the related Seller and (ii) representation or
warranty of any kind (either expressed or implied) by the related Seller to or
for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim against
the related Seller for repurchase of the REO Mortgage Loan or REO Property. In
such an event, each Master Servicer or Special Servicer, as applicable, shall
notify the related Seller of the discovery of the Material Document Defect or
Material Breach and the related Seller shall be required to follow the
procedures set forth in the related Mortgage Loan Purchase Agreement to correct
or cure such Material Document Defect or Material Breach or purchase the REO
Property at the Purchase Price. If the related Seller fails to correct or cure
the Material Document Defect or Material Breach or purchase the REO Property,
then the provisions above regarding notice of offers related to such REO
Property and the related Seller's right to purchase such REO Property shall
apply. If a court of competent jurisdiction issues a final order that the
related Seller is or was obligated to repurchase the related Mortgage Loan or
REO Mortgage Loan or the related Seller otherwise accepts liability, then, after
the expiration of any applicable appeal period, but in no event later than the
termination of the Trust pursuant to Section 9.30 hereof, the related Seller
will be obligated to pay to the Trust the difference between any Liquidation
Proceeds received upon such liquidation (including those arising from any sale
to the related Seller) and the Purchase Price; provided that the prevailing
party in such action shall be entitled to recover all costs, fees and expenses
(including reasonable attorneys fees) related thereto; provided, further, that
if the Seller is the prevailing party in such action, such costs, fees and
expenses (including reasonable attorneys fees) shall be an Additional Trust
Expense.
In connection with any liquidation or sale of a Mortgage Loan or REO
Property as described above, the Special Servicer will not receive a Liquidation
Fee in connection with such liquidation or sale or any portion of the Work-Out
Fee that accrues after the related Seller receives notice of a breach or defect
until a final determination has been made, as set forth in the prior paragraph,
as to whether the related Seller is or was obligated to repurchase such related
Mortgage Loan or REO Property. Subject to the last two sentences of the first
paragraph of Section 2.3(a), upon such determination, the Special Servicer will
be entitled: (i) with respect to a determination that the related Seller is or
was obligated to repurchase a Mortgage Loan, to collect a Liquidation Fee, if
due in accordance with the definition thereof, based upon the full Purchase
Price of the related Mortgage Loan or REO Property, with such Liquidation Fee
payable by the related Seller or (ii) with respect to a determination that the
related Seller is not or was not obligated to repurchase a Mortgage Loan (or the
Trust decides that it will no longer pursue a claim against the Seller for
repurchase), (A) to collect a Liquidation Fee based upon the Liquidation
Proceeds as received upon the actual sale or liquidation of such Mortgage Loan
or REO Property, and (B) collect any accrued and unpaid Work-Out Fee, based on
amounts that were collected for as long as the related Mortgage Loan was a
Rehabilitated Mortgage Loan, in each case with such amounts to be paid from
amounts in the Certificate Account.
In any month in which the related Seller substitutes one or more
Qualifying Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
applicable Master Servicer will determine the amount (if any) by which the
aggregate Principal Balance of all such Qualifying Substitute Mortgage Loans as
of the date of substitution is less than the aggregate Principal Balance of all
such Deleted Mortgage Loans (in each case after application of scheduled
principal portion of the monthly payments received in the month of
substitution). The Depositor shall cause the related Seller to deposit the
amount of such shortage into the Certificate Account in the month of
substitution, without any reimbursement thereof. In addition, the Depositor
shall cause the related Seller to deposit into the Certificate Account, together
with such shortage, if any, an amount equal to interest on the Deleted Mortgage
Loans at a rate equal to the sum of the applicable Mortgage Rate from the Due
Date as to which interest was last paid up to the Due Date next succeeding such
substitution together with the amount of unreimbursed Servicing Advances,
amounts required to be paid to the applicable Special Servicer but remaining
unpaid or unreimbursed, and interest on unreimbursed Advances with respect to
such Deleted Mortgage Loans at the Advance Rate. The Depositor shall cause the
related Seller, in the case of the Mortgage Loans, to give notice in writing
(accompanied by an Officer's Certificate as to the calculation of such shortage)
to the Trustee, the Paying Agent and the applicable Master Servicer of such
event which notice shall be accompanied by an Officer's Certificate as to the
calculation of such shortfall.
If the affected Mortgage Loan is to be repurchased, the applicable
Master Servicer shall designate the Certificate Account as the account to which
funds in the amount of the Purchase Price are to be wired. Any such purchase of
a Mortgage Loan shall be on a whole loan, servicing released basis.
(c) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 2.3, the Trustee, the applicable
Master Servicer and the applicable Special Servicer shall each tender to the
related Seller, upon delivery to each of them of a receipt executed by such
Seller, all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan possessed by it (including, without limitation, all documents
delivered to the Trustee and such Master Servicer pursuant to the related
Mortgage Loan Purchase Agreement), and each document that constitutes a part of
the Mortgage File shall be endorsed or assigned to the extent necessary or
appropriate to the related Seller or its designee in the same manner, and
pursuant to appropriate forms of assignment, substantially similar to the manner
and forms pursuant to which documents were previously assigned to the Trustee,
but in any event, without recourse, representation or warranty; provided that
such tender by the Trustee shall be conditioned upon its receipt from the
applicable Master Servicer of a Request for Release. The applicable Master
Servicer shall, and is hereby authorized and empowered by the Trustee to,
prepare, execute and deliver in its own name, on behalf of the
Certificateholders and the Trustee or any of them, the endorsements and
assignments contemplated by this Section 2.3, and the Trustee shall execute and
deliver any powers of attorney necessary to permit the applicable Master
Servicer to do so. The applicable Master Servicer shall, and is also hereby
authorized and empowered by the Trustee to, reconvey to the related Seller any
deposits then held in the applicable Escrow Account relating to the Mortgage
Loan being repurchased or substituted for. Each Master Servicer shall indemnify
the Trustee for all costs, liabilities and expenses (including attorneys' fees)
incurred by the Trustee in connection with any negligent or intentional misuse
of any such powers of attorney by such Master Servicer.
(d) The Mortgage Loan Purchase Agreements provide the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Material Document Defect or Material Breach.
The parties hereunder understand that (i) MSMC, as Seller under Mortgage Loan
Purchase Agreement I, will be providing the remedies with respect to the MSMC
Loans, (ii) IXIS, as Seller under Mortgage Loan Purchase Agreement II, will be
providing remedies with respect to the IXIS Loans, (iii) MM, as Seller under
Mortgage Loan Purchase Agreement III, will be providing remedies with respect to
the MM Loans, (iv) NCB, FSB, as Seller under Mortgage Loan Purchase Agreement
IV, will be providing the remedies with respect to the NCB, FSB Loans, (v)
UCMFI, as Seller under Mortgage Loan Purchase Agreement V, will be providing the
remedies with respect to the UCMFI Loans and (vi) SunTrust, as Seller under
Mortgage Loan Purchase Agreement VI, will be providing the remedies with respect
to the SunTrust Loans.
(e) The Trustee shall enforce the provisions of this Section 2.3.
Alternatively, the Trustee may, in its sole discretion, appoint a designee to
enforce such provisions (which, with the applicable Master Servicer's consent,
may be such Master Servicer or which, with the applicable Special Servicer's
consent, may be such Special Servicer).
Section 2.4 Representations and Warranties
The Depositor hereby represents and warrants to the Master
Servicers, the Special Servicers, the Trustee (in its capacity as Trustee of the
Trust) and the Paying Agent as of the Closing Date that:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence and has
full corporate power and authority to own its property, to carry on its business
as presently conducted, to enter into and perform its obligations under this
Agreement, and to create the trust pursuant hereto;
(b) The execution and delivery by the Depositor of this Agreement
have been duly authorized by all necessary corporate action on the part of the
Depositor; neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, (i) any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its
properties; (ii) the certificate of incorporation or bylaws of the Depositor; or
(iii) the terms of any indenture or other agreement or instrument to which the
Depositor is a party or by which it is bound; neither the Depositor nor any of
its Affiliates is a party to, bound by, or in breach of or violation of any
indenture or other agreement or instrument, or subject to or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially and
adversely affects or to the best knowledge of the Depositor may in the future
materially and adversely affect (i) the ability of the Depositor to perform its
obligations under this Agreement or (ii) the business, operations, financial
condition, properties or assets of the Depositor;
(c) The execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(d) This Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms;
(e) There are no actions, suits or proceedings pending or, to the
best of the Depositor's knowledge, threatened or likely to be asserted against
or affecting the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the transactions
contemplated by this Agreement or (B) with respect to any other matter which in
the judgment of the Depositor will be determined adversely to the Depositor and
will, if determined adversely to the Depositor, materially and adversely affect
it or its business, assets, operations or condition, financial or otherwise, or
adversely affect its ability to perform its obligations under this Agreement;
and
(f) Immediately prior to the consummation of the transactions
contemplated in this Agreement, the Depositor had good title to and was the sole
owner of each Mortgage Loan free and clear of any and all adverse claims,
charges or security interests (including liens arising under the federal tax
laws or the Employee Retirement Income Security Act of 1974, as amended).
Section 2.5 Conveyance of Interests
Effective as of the Closing Date, the Depositor does hereby
transfer, assign, set over, deposit with and otherwise convey to the Trustee,
without recourse, in trust, all the right, title and interest of the Depositor
in and to (i) the assets of REMIC I in exchange for the REMIC I Interests, (ii)
the assets of REMIC II in exchange for the REMIC II Interests, (iii) the assets
of REMIC III in exchange for the REMIC III Certificates, (iv) the assets of the
Class EI/Class EI-L3 Grantor Trust in exchange for the Class EI and Class EI-L3
Certificates and (v) the Class A-3-1FL Regular Interest in exchange for the
Class A-3-1FL Certificates.
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates
(a) The Certificates shall be in substantially the forms set forth
in Exhibits A-1 through A-32 hereto, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Agreement or as may in the reasonable judgment of the Trustee or the
Depositor be necessary, appropriate or convenient to comply, or facilitate
compliance, with applicable laws, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange on which any of
the Certificates may be listed, or as may, consistently herewith, be determined
by the officers executing such Certificates, as evidenced by their execution
thereof.
The Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
(b) The Class A Certificates and the Class A-J Certificates will be
issuable in denominations of $25,000 initial Certificate Balance and in any
whole dollar denomination in excess thereof. The Class X (other than the Class
X-2 Certificates), Class B, Class C, Class D, Class E, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O and Class P Certificates
will be issuable in denominations of $100,000 initial Certificate Balance or
initial Notional Amount (as applicable) or in any whole dollar denomination in
excess thereof. The Class X-2 Certificates will be issuable in denominations of
$1,000,0000 initial Certificate Balance and in any whole dollar denomination in
excess thereof. The Class EI, Class EI-L3, Class R-I, Class R-II and Class R-III
Certificates each will be issued in minimum Percentage Interests of 10% and
integral multiples of 10% in excess thereof and together aggregating the entire
100% Percentage Interest in each such Class.
(c) Each Certificate shall, on original issue, be executed by the
Certificate Registrar and authenticated by the Authenticating Agent upon the
order of the Depositor. No Certificate shall be entitled to any benefit under
this Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Authenticating Agent by
manual signature, and such certification upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates to the
Authenticating Agent for authentication and the Authenticating Agent shall
authenticate and deliver such Certificates as in this Agreement provided and not
otherwise. In the event that additional Certificates need to be prepared at any
time subsequent to the Closing Date, the Depositor shall prepare, or cause to be
prepared, deliver, or cause to be delivered, at the Depositor's expense, any
such additional Certificates. With respect to the Class A, Class A-J, Class X-1,
Class X-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N, Class O and Class P Certificates that are
issued in book-entry form, on the Closing Date, the Authenticating Agent upon
the order of the Depositor shall authenticate Book-Entry Certificates that are
issued to a Clearing Agency or its nominee as provided in Section 3.7 against
payment of the purchase price thereof. With respect to the Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class EI, Class EI-L3 and Class X-Y
Certificates that are issued in definitive form, on the Closing Date, the
Authenticating Agent upon the order of the Depositor shall authenticate
Definitive Certificates that are issued to the registered holder thereof against
payment of the purchase price thereof.
Section 3.2 Registration
The Paying Agent shall be the initial Certificate Registrar in
respect of the Certificates and the Certificate Registrar shall maintain books
for the registration and for the transfer of Certificates (the "Certificate
Register"). The Certificate Registrar may resign or be discharged or removed by
the Paying Agent or the Certificateholders, and a new successor may be
appointed, in accordance with the procedures and requirements set forth in
Sections 7.6 and 7.7 hereof with respect to the resignation, discharge or
removal of the Paying Agent and the appointment of a successor Paying Agent. The
Certificate Registrar may appoint, by a written instrument delivered to the
Holders and the Trustee, any trust company to act as co-registrar under such
conditions as the Certificate Registrar may prescribe; provided that the
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment.
Section 3.3 Transfer and Exchange of Certificates
(a) A Certificate may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the Corporate Trust Office,
duly endorsed or accompanied by a written instrument of transfer duly executed
by such Holder or such Holder's duly authorized attorney in such form as shall
be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, and subject to the
restrictions set forth in the other subsections of this Section 3.3, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver to the transferee, one or more new Certificates of the
same Class and evidencing, in the aggregate, the same aggregate initial
Certificate Balance, initial Notional Amount or Percentage Interest, as the case
may be, as the Certificate being transferred. No service charge shall be made to
a Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
or transfer of Certificates. The Certificate Registrar may decline to accept any
request for a registration of transfer of any Certificate during the period
beginning five calendar days prior to any Distribution Date.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same initial Certificate Balance, initial
Notional Amount or Percentage Interest, as the case may be, as the Certificate
surrendered, upon surrender of the Certificate to be exchanged at the offices of
the Certificate Registrar duly endorsed or accompanied by a written instrument
of exchange duly executed by such Holder or such Holder's duly authorized
attorney in such form as is satisfactory to the Certificate Registrar.
Certificates delivered upon any such exchange will evidence the same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any exchange of Certificates. Whenever any
Certificates are so surrendered for exchange, the Certificate Registrar shall
execute and the Authenticating Agent shall authenticate, date and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(c) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless such
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of any Non-Registered Certificate held
as a Definitive Certificate is to be made without registration under the
Securities Act (other than in connection with a transfer of such Non-Registered
Certificate by the Depositor or one of its Affiliates), then the Certificate
Registrar shall refuse to register such transfer unless it receives (and upon
receipt, may conclusively rely upon) either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit D-1 hereto and a certificate from such Certificateholder's
prospective Transferee substantially in the form attached either as Exhibit D-2A
hereto or as Exhibit D-2B hereto; or (ii) an Opinion of Counsel satisfactory to
the Certificate Registrar to the effect that such transfer shall be made without
registration under the Securities Act, together with the written
certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based (such Opinion of Counsel shall not be an expense of the Trust or of the
Depositor, any Master Servicer, any Special Servicer, the Paying Agent, the
Trustee or the Certificate Registrar in their respective capacities as such). If
a transfer of any interest in a Non-Registered Certificate that constitutes a
Book-Entry Certificate is to be made without registration under the Securities
Act (other than in connection with the initial issuance of the Certificates or a
transfer of any interest in such Non-Registered Certificate by the Depositor or
any of its Affiliates), then the Certificate Owner desiring to effect such
transfer shall be required to obtain either (i) a certificate from such
Certificate Owner's prospective Transferee substantially in the form attached as
Exhibit D-3A hereto or as Exhibit D-3B hereto, or (ii) an Opinion of Counsel to
the effect that such transfer may be made without registration under the
Securities Act. None of the Depositor, the Paying Agent, the Trustee, the Master
Servicers, the Special Servicers or the Certificate Registrar is obligated to
register or qualify any Class of Non-Registered Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under this Agreement to permit the transfer of any Certificate. Any
Certificateholder or Certificate Owner desiring to effect a transfer of
Non-Registered Certificates or interests therein shall, and does hereby agree
to, indemnify the Depositor, each Underwriter, the Trustee, each Master
Servicer, each Special Servicer, the Paying Agent and the Certificate Registrar
against any liability that may result if the transfer is not exempt from such
registration or qualification or is not made in accordance with such federal and
state laws.
(d) No transfer of a Non-Investment Grade Certificate, Class EI
Certificate, Class EI-L3 Certificate or Residual Certificate or any interest
therein shall be made (A) to any retirement plan or other employee benefit plan
or arrangement, including individual retirement accounts and annuities, Xxxxx
plans and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, including, without limitation, insurance
company general accounts, that is subject to ERISA or Section 4975 of the Code
or any applicable federal, state or local law ("Similar Laws") materially
similar to the foregoing provisions of ERISA or the Code (each, a "Plan"), (B)
in book-entry form to an Institutional Accredited Investor who is not also a
Qualified Institutional Buyer or (C) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless: (i) in the case of a
Non-Investment Grade Certificate that constitutes a Book-Entry Certificate and
is being sold to a Qualified Institutional Buyer, the purchase and holding of
such Certificate or interest therein qualifies for the exemptive relief
available under Sections I and III of U.S. Department of Labor Prohibited
Transaction Class Exemption ("PTCE") 95-60; or (ii) in the case of a
Non-Investment Grade Certificate held as a Definitive Certificate, the
prospective Transferee provides the Certificate Registrar with a certification
of facts and an Opinion of Counsel which establish to the satisfaction of the
Certificate Registrar that such transfer will not constitute or result in a
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of
the Code or materially similar provisions of applicable federal, state or local
law or subject the Depositor, the Trustee, the Paying Agent, the Master
Servicers, the Special Servicers or the Certificate Registrar to any obligation
in addition to those undertaken in this Agreement. Each Person who acquires any
Non-Investment Grade Certificate or Residual Certificate or interest therein
(unless it shall have acquired such Certificate or interest therein from the
Depositor or an Affiliate thereof or, in the case of a Non-Investment Grade
Certificate, unless it shall have delivered to the Certificate Registrar the
certification of facts and Opinion of Counsel referred to in clause (ii) of the
preceding sentence) shall be required to deliver to the Certificate Registrar
(or, in the case of an interest in a Non-Investment Grade Certificate that
constitutes a Book-Entry Certificate, to the Certificate Owner that is
transferring such interest) a certification to the effect that: (i) it is
neither a Plan nor any Person who is directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with "plan assets" of a Plan; or (ii) in the case of a Non-Investment
Grade Certificate, that the purchase and holding of such Certificate or interest
therein by such Person qualifies for the exemptive relief available under
Sections I and III of PTCE 95-60 or another exemption from the "prohibited
transactions" rules under ERISA by the U.S. Department of Labor. No transfer of
a Class EI, Class EI-L3 or Residual Certificate will be made to any Person that
does not make the representation in clause (i) of the preceding sentence.
(e) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Paying Agent under clause (F) below to deliver
payments to a Person other than such Person and to have irrevocably authorized
the Certificate Registrar under clause (G) below to negotiate the terms of any
mandatory sale and to execute all instruments of Transfer and to do all other
things necessary in connection with any such sale. The rights of such Person
acquiring any Ownership Interest in a Residual Certificate are expressly subject
to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and a United
States Tax Person and shall promptly notify the Certificate
Registrar of any change or impending change in its status as a
Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit and agreement substantially in the form attached hereto as
Exhibit E-1 (a "Transfer Affidavit and Agreement") from the proposed
Transferee, in form and substance satisfactory to the Certificate
Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring
its Ownership Interest in the Residual Certificate that is the
subject of the proposed Transfer as a nominee, trustee or agent for
any Person that is not a Permitted Transferee, that for so long as
it retains its Ownership Interest in a Residual Certificate, it will
endeavor to remain a Permitted Transferee, that it is a United
States Tax Person, that it has historically paid its debts as they
have come due and will continue to do so in the future, that it
understands that its tax liability with respect to the Residual
Certificates may exceed cash flows thereon and it intends to pay
such taxes as they come due, that it will provide the Certificate
Registrar with all information necessary to determine that the
applicable paragraphs of Section 13 of such Transfer Affidavit and
Agreement are true or that Section 13 is not applicable, that it
will not cause income with respect to the Residual Certificate to be
attributable to a foreign permanent establishment or fixed base
(within the meaning of an applicable income tax treaty) of such
Person or any other United States Tax Person and that it has
reviewed the provisions of this Section 3.3(e) and agrees to be
bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee or is not a United States
Tax Person, no Transfer of an Ownership Interest in a Residual
Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring an Ownership Interest in
a Residual Certificate shall agree (1) to require a Transfer
Affidavit and Agreement from any prospective Transferee to whom such
Person attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar
a certificate substantially in the form attached hereto as Exhibit
E-2 among other things stating that (x) it has conducted a
reasonable investigation of the financial condition of the proposed
Transferee and, as a result of the investigation, the Transferor
determines that the proposed Transferee had historically paid its
debts as they came due and found no significant evidence that the
proposed Transferee will not continue to pay its debts as they come
due in the future and, (y) it has no actual knowledge that such
prospective Transferee is not a Permitted Transferee or is not a
United States Tax Person.
(E) Each Person holding or acquiring an Ownership Interest in
a Residual Certificate that is a "pass-through interest holder"
within the meaning of temporary Treasury Regulations Section
1.67-3T(a)(2)(i)(A) or is holding an Ownership Interest in a
Residual Certificate on behalf of a "pass-through interest holder,"
by purchasing an Ownership Interest in such Certificate, agrees to
give the Certificate Registrar written notice of its status as such
immediately upon holding or acquiring such Ownership Interest in a
Residual Certificate.
(F) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
3.3(e) or if any Holder of a Residual Certificate shall lose its
status as a Permitted Transferee or a United States Tax Person, then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 3.3(e) shall be
restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of
registration of such Transfer of such Residual Certificate. None of
the Trustee, the Master Servicers, the Special Servicers, the
Certificate Registrar or the Paying Agent shall be under any
liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by this Section
3.3(e) or for making any payments due on such Certificate to the
Holder thereof or for taking any other action with respect to such
Holder under the provisions of this Agreement.
(G) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this
Section 3.3(e), or if any Holder of a Residual Certificate shall
lose its status as a Permitted Transferee or a United States Person,
and to the extent that the retroactive restoration of the rights and
obligations of the prior Holder of such Residual Certificate as
described in clause (F) above shall be invalid, illegal or
unenforceable, then the Trustee shall have the right, without notice
to the Holder or any prior Holder of such Residual Certificate, but
not the obligation, to sell or cause to be sold such Residual
Certificate to a purchaser selected by the Trustee on such terms as
the Trustee may choose. Such noncomplying Holder shall promptly
endorse and deliver such Residual Certificate in accordance with the
instructions of the Certificate Registrar. Such purchaser may be the
Certificate Registrar itself or any Affiliate of the Certificate
Registrar. The proceeds of such sale, net of the commissions (which
may include commissions payable to the Certificate Registrar or its
Affiliates), expenses and taxes due, if any, will be remitted by the
Certificate Registrar to such noncomplying Holder. The terms and
conditions of any sale under this clause (G) shall be determined in
the sole discretion of the Certificate Registrar, and the
Certificate Registrar shall not be liable to any Person having an
Ownership Interest in a Residual Certificate as a result of its
exercise of such discretion.
The Trustee shall make available to the Internal Revenue Service and those
Persons specified by the REMIC Provisions, all information in its possession
necessary to compute any tax imposed as a result of the Transfer of an Ownership
Interest in a Residual Certificate to any Person who is not a Permitted
Transferee, including the information described in Treasury Regulations Sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of
such Residual Certificate. The Person holding the Ownership Interest in a
Residual Certificate shall be responsible for the reasonable compensation of the
Trustee for providing such information. Each Master Servicer shall take all
reasonable action to cooperate with the Trustee in making such information
available.
The provisions of this Section 3.3(e) may be modified, added to or
eliminated, provided that there shall have been delivered to the Trustee, the
Paying Agent, the Certificate Registrar, each Master Servicer, the Operating
Adviser and the Depositor the following:
(A) written notification from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to qualify, downgrade
or withdraw its then current rating of any Class of Certificates;
and
(B) an Opinion of Counsel, in form and substance satisfactory
to the Trustee, the Certificate Registrar and the Depositor, to the
effect that such modification of, addition to or elimination of such
provisions will not cause any REMIC Pool to (x) cease to qualify as
a REMIC or (y) be subject to an entity-level tax caused by the
Transfer of any Residual Certificate to a Person which is not a
Permitted Transferee, or cause a Person other than the prospective
Transferee to be subject to a tax caused by the Transfer of a
Residual Certificate to a Person which is not a Permitted
Transferee.
(f) None of the Master Servicers, the Special Servicers, the
Trustee, the Paying Agent or the Certificate Registrar shall have any liability
to the Trust arising from a transfer of any Certificate in reliance upon a
certification, ruling or Opinion of Counsel described in this Section 3.3;
provided, however, that the Certificate Registrar shall not register the
transfer of a Residual Certificate if it has actual knowledge that the proposed
transferee does not meet the qualifications of a permitted Holder of a Residual
Certificate as set forth in Section 3.3(e); provided, further, that the
Certificate Registrar shall not register the transfer of a Noneconomic Residual
Interest if it shall have received notice that the Transferor has determined, as
a result of the investigation under Section 3.3(e)(D), that the proposed
Transferee has not paid its debts as they came due or that it will not pay its
debts as they come due in the future. The Certificate Registrar shall have no
obligation or duty to monitor, determine or inquire as to compliance with any
restriction on transfer or exchange of Certificates or any interest therein
imposed under this Article III or under applicable law other than to require
delivery of the certifications and/or opinions described in this Article III;
provided, however, that the Certificate Registrar shall not register the
transfer of a Residual Certificate if it has actual knowledge that the proposed
transferee does not meet the qualifications of a permitted Holder of a Residual
Certificate as set forth in Section 3.3(e). The Certificate Registrar shall have
no liability for transfers (including without limitation transfers made through
the book-entry facilities of the Depository or between or among Participants or
Certificate Owners) made in violation of applicable restrictions, provided that
the Certificate Registrar has satisfied its duties expressly set forth in
Sections 3.3(c), 3.3(d) and 3.3(e).
(g) All Certificates surrendered for transfer and exchange shall be
physically cancelled by the Certificate Registrar, and the Certificate Registrar
shall hold such cancelled Certificates in accordance with its standard
procedures.
(h) The Certificate Registrar shall provide the Master Servicers,
the Special Servicers and the Depositor, upon written request, with an updated
copy of the Certificate Register within a reasonable period of time following
receipt of such request.
(i) Unless and until it is exchanged in whole for the individual
Certificates represented thereby, a Global Certificate representing all of the
Certificates of a Class may not be transferred, except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Clearing Agency or a nominee of such successor
Clearing Agency, and no such transfer to any such other Person may be
registered; provided that this subsection (i) shall not prohibit any transfer of
a Certificate of a Class that is issued in exchange for a Global Certificate of
the same Class pursuant to Section 3.9 below. Nothing in this subsection (i)
shall prohibit or render ineffective any transfer of a beneficial interest in a
Global Certificate effected in accordance with the other provisions of this
Section 3.3.
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates
If (A) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (B) except in the case of
a mutilated Certificate so surrendered, there is delivered to the Certificate
Registrar such security or indemnity as may be required by it to save it
harmless, then, in the absence of notice to the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like tenor and interest in the Trust.
In connection with the issuance of any new Certificate under this Section 3.4,
the Certificate Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section 3.4 shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
Section 3.5 Persons Deemed Owners
Prior to presentation of a Certificate for registration of transfer,
the Master Servicers, the Special Servicers, the Trustee, the Operating Adviser,
the Paying Agent and any agents of the Master Servicers, the Special Servicers,
the Paying Agent, the Trustee or the Operating Adviser may treat the Person in
whose name any Certificate is registered as of the related Record Date as the
owner of such Certificate for the purpose of receiving distributions as provided
in this Agreement and for all other purposes whatsoever, and none of the Master
Servicers, the Special Servicers, the Trustee, the Paying Agent, the Operating
Adviser or any agent of the Master Servicers, the Special Servicers, the
Trustee, the Paying Agent or the Operating Adviser shall be affected by any
notice to the contrary.
Section 3.6 Access to List of Certificateholders' Names and
Addresses
If three or more Certificateholders, a Certificateholder holding all
the Certificates of any Class of Certificates, any Master Servicer, any Special
Servicer, the Paying Agent, the Trustee, the Operating Adviser or the Depositor
(A) request in writing from the Certificate Registrar a list of the names and
addresses of Certificateholders and (B) in the case of a request by
Certificateholders, state that such Certificateholders desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates, then the Certificate Registrar shall, within ten
Business Days after the receipt of such request, afford such Certificateholders,
the Master Servicers, the Special Servicers, the Depositor, the Paying Agent,
the Trustee, the Swap Counterparty or the Operating Adviser, as applicable,
access during normal business hours to a current list of the Certificateholders.
The expense of providing any such information requested by such Person shall be
borne by the party requesting such information and shall not be borne by the
Certificate Registrar or the Trustee. Every Certificateholder, by receiving and
holding a Certificate, agrees that the Certificate Registrar and the Trustee
shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
Section 3.7 Book-Entry Certificates
(a) The Class A-1, Class A-1A, Class A-2, Class A-3-1FL, Class
A-3-1, Class A-3-2, Class A-AB, Class X-0X, Xxxxx X-0X, Xxxxx X-X, Class X-1,
Class X-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N, Class O and Class P Certificates, upon
original issuance, each shall be issued in the form of one or more Certificates
representing the Book-Entry Certificates, to be delivered to the Certificate
Registrar, as custodian for The Depository Trust Company (the "Depository"), the
initial Clearing Agency, by, or on behalf of, the Depositor, provided that any
Non-Investment Grade Certificates sold to Institutional Accredited Investors who
are not Qualified Institutional Buyers will be issued as Definitive
Certificates. The Certificates shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of the Depository, as the
initial Clearing Agency, and no Certificate Owner will receive a definitive
certificate representing such Certificate Owner's interest in the Certificates,
except as provided in Section 3.9. Unless and until Definitive Certificates have
been issued to the Certificate Owners pursuant to Section 3.9:
(i) the provisions of this Section 3.7 shall be in full force and
effect with respect to each such Class;
(ii) the Depositor, the Master Servicers, the Paying Agent, the
Certificate Registrar and the Trustee may deal with the Clearing Agency
for all purposes (including the making of distributions on the
Certificates) as the authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.7 conflict
with any other provisions of this Agreement, the provisions of this
Section 3.7 shall control with respect to each such Class; and
(iv) the rights of the Certificate Owners of each such Class shall
be exercised only through the Clearing Agency and the applicable
Participants and shall be limited to those established by law and
agreements between such Certificate Owners and the Clearing Agency and/or
the Participants. Pursuant to the Depository Agreement, unless and until
Certificates are issued pursuant to Section 3.9, the initial Clearing
Agency will make book-entry transfers among the Participants and receive
and transmit distributions of principal and interest on the related
Certificates to such Participants.
(b) For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of the
Certificates evidencing a specified percentage of the aggregate unpaid principal
amount of Certificates, such direction or consent may be given by the Clearing
Agency at the direction of Certificate Owners owning Certificates evidencing the
requisite percentage of principal amount of Certificates. The Clearing Agency
may take conflicting actions with respect to the Certificates to the extent that
such actions are taken on behalf of the Certificate Owners.
(c) The Certificates of each Class (other than the Residual
Certificates) initially sold in reliance on Rule 144A or with respect to the
Class A-1, Class A-1A, Class A-2, Class A-3-1FL, Class A-3-1, Class A-3-2, Class
A-AB, Class X-0X, Xxxxx X-0X, Xxxxx X-X, Class B, Class C, Class D, Class E,
Class F, Class G and Class H Certificates sold to Institutional Accredited
Investors shall be represented by the Rule 144A IAI Global Certificate for such
Class, which shall be deposited with the Certificate Registrar, as custodian for
the Depository and registered in the name of Cede & Co. as nominee of the
Depository. The Class J, Class K, Class L, Class M, Class N, Class O and Class P
Certificates initially sold to Institutional Accredited Investors shall be
represented by IAI Definitive Certificates for such Class. The Certificates
evidenced by any Rule 144A IAI Global Certificate or IAI Definitive Certificate
shall be subject to certain restrictions on transfer as set forth in Section 3.3
hereof and shall bear legend(s) regarding such restrictions described herein.
(d) The Certificates of each Class (other than the Residual
Certificates) initially sold in offshore transactions in reliance on Regulation
S shall be represented by the Regulation S Temporary Global Certificate for such
Class, which shall be deposited with the Certificate Registrar, as custodian for
the Depository and registered in the name of Cede & Co. as nominee of the
Depository. Not earlier than the Release Date, beneficial interests in any
Regulation S Temporary Global Certificate shall be exchangeable for beneficial
interests in the Regulation S Permanent Global Certificate for such Class.
Beneficial interests in any Regulation S Temporary Global Certificate may be
held only through Euroclear or Clearstream; provided, however, that such
interests may be exchanged for interests in the Rule 144A IAI Global Certificate
for such Class in accordance with the certification requirements described in
Section 3.7(f). The Regulation S Permanent Global Certificates shall be
deposited with the Certificate Registrar, as custodian for the Depository and
registered in the name of Cede & Co. as nominee of the Depository.
On or prior to the Release Date and on or prior to any Distribution
Date occurring prior to the Release Date, each Certificate Owner of a Regulation
S Temporary Global Certificate that holds a beneficial interest therein on the
Release Date or on any such Distribution Date, as the case may be, must deliver
to Euroclear or Clearstream (as applicable) a Regulation S Certificate;
provided, however, that any Certificate Owner that holds a beneficial interest
in a Regulation S Temporary Global Certificate on the Release Date or on any
such Distribution Date that has previously delivered a Regulation S Certificate
to Euroclear or Clearstream with respect to its interest therein does not need
to deliver any subsequent Regulation S Certificate (unless the certificate
previously delivered is no longer true as of such subsequent date, and such
Certificate Owner must promptly notify Euroclear or Clearstream, as applicable,
thereof). Euroclear or Clearstream, as applicable, shall be required to promptly
deliver to the Certificate Registrar a certificate substantially in the form of
Exhibit I hereto to the effect that it has received the requisite Regulation S
Certificates for each such Class, and no Certificate Owner (or transferee from
any such Certificate Owner) shall be entitled to receive an interest in the
Regulation S Permanent Global Certificate for such Class or any payment or
principal or interest with respect to its interest in such Regulation S
Temporary Global Certificate prior to the Certificate Registrar receiving such
certification from Euroclear or Clearstream with respect to the portion of the
Regulation S Temporary Global Certificate owned by such Certificate Owner (and,
with respect to an interest in the applicable Regulation S Permanent Global
Certificate, prior to the Release Date). After the Release Date, distributions
due with respect to any beneficial interest in a Regulation S Temporary Global
Certificate shall not be made to the holders of such beneficial interests unless
exchange for a beneficial interest in the related Regulation S Permanent Global
Certificate is improperly withheld or refused. No interest in a Regulation S
Global Certificate may be held by or transferred to a U.S. Person (as defined in
Regulation S) except for exchanges for a beneficial interest in the Rule 144A
IAI Global Certificate for such Class as described in Section 3.7(f).
(e) Except in the limited circumstances described below in Section
3.9, owners of beneficial interests in Global Certificates shall not be entitled
to receive physical delivery of Definitive Certificates. The Certificates are
not issuable in bearer form. Upon the issuance of each Global Certificate, the
Depository or its custodian shall credit, on its internal system, the respective
principal amount of the individual beneficial interests represented by such
Global Certificate to the accounts of Persons who have accounts with such
Depository. Such accounts initially shall be designated by or on behalf of the
Underwriters and Placement Agents. Ownership of beneficial interests in a Global
Certificate shall be limited to Customers or Persons who hold interests directly
or indirectly through Customers. Ownership of beneficial interests in the Global
Certificates shall be shown on, and the transfer of that ownership shall be
effected only through, records maintained by the Depository or its nominee (with
respect to interests of Customers) and the records of Customers (with respect to
interests of Persons other than Customers).
So long as the Depository, or its nominee, is the registered holder
of a Global Certificate, the Depository or such nominee, as the case may be,
shall be considered the sole owner and holder of the Certificates represented by
such Global Certificate for all purposes under this Agreement and the
Certificates, including, without limitation, obtaining consents and waivers
thereunder, and the Trustee, the Paying Agent and the Certificate Registrar
shall not be affected by any notice to the contrary. Except under the
circumstance described in Section 3.9, owners of beneficial interests in a
Global Certificate will not be entitled to have any portions of such Global
Certificate registered in their names, will not receive or be entitled to
receive physical delivery of Definitive Certificates in certificated form and
shall not be considered the owners or holders of the Global Certificate (or any
Certificates represented thereby) under this Agreement or the Certificates. In
addition, no Certificate Owner of an interest in a Global Certificate shall be
able to transfer that interest except in accordance with the Depository's
applicable procedures (in addition to those under this Agreement and, if
applicable, those of Euroclear and Clearstream).
(f) Any holder of an interest in a Regulation S Global Certificate
shall have the right, upon prior written notice to the Certificate Registrar,
Euroclear or Clearstream, as applicable, and the Depository, in the form of an
Exchange Certification (substantially in the form of Exhibit H attached hereto),
to exchange all or a portion of such interest (in authorized denominations as
set forth in Section 3.1(b)) for an equivalent interest in the Rule 144A IAI
Global Certificate for such Class in connection with a transfer of its interest
therein to a transferee that is eligible to hold an interest in such Rule 144A
IAI Global Certificate as described herein; provided, however, that no Exchange
Certification shall be required if any such exchange occurs after the Release
Date. Any holder of an interest in the Rule 144A IAI Global Certificate shall
have the right, upon prior written notice to the Certificate Registrar, the
Depository and Euroclear or Clearstream, as applicable, in the form of an
Exchange Certification, to exchange all or a portion of such interest (in
authorized denominations as set forth in Section 3.1(b)) for an equivalent
interest in the Regulation S Global Certificate for such Class in connection
with a transfer of its interest therein to a transferee that is eligible to hold
an interest in such Regulation S Global Certificate as described herein;
provided, however, that if such exchange occurs prior to the Release Date, the
transferee shall acquire an interest in a Regulation S Temporary Global
Certificate only and shall be subject to all of the restrictions associated
therewith described in Section 3.7(d). Following receipt of any Exchange
Certification or request for transfer, as applicable, by the Certificate
Registrar: (i) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates being exchanged
to reduce the stated principal amount of such Global Certificate by the
denominations of the Certificate or Certificates for which such exchange is to
be made, and (ii) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates for which such
exchange is to be made to increase the stated principal amount of such Global
Certificate by the denominations of the Certificate or Certificates being
exchanged therefor. The form of the Exchange Certification shall be available
from the Certificate Registrar.
Section 3.8 Notices to Clearing Agency
Whenever notice or other communication to the Certificateholders is
required under this Agreement, unless and until Definitive Certificates shall
have been issued to the related Certificateholders pursuant to Section 3.9, the
Paying Agent shall give all such notices and communications specified herein to
be given to Holders of the Book-Entry Certificates to the Clearing Agency which
shall give such notices and communications to the related Participants in
accordance with its applicable rules, regulations and procedures.
Section 3.9 Definitive Certificates
(a) Definitive Certificates will be issued to the owners of
beneficial interests in a Global Certificate or their nominees if (i) the
Clearing Agency notifies the Depositor and the Certificate Registrar in writing
that the Clearing Agency is unwilling or unable to continue as depositary for
such Global Certificate and a qualifying successor depositary is not appointed
by the Depositor within 90 days thereof, (ii) the Trustee has instituted or
caused to be instituted or has been directed to institute any judicial
proceeding in a court to enforce the rights of the Certificateholders under this
Agreement and under such Global Certificate and the Trustee has been advised by
counsel that in connection with such proceeding it is necessary or advisable for
the Trustee or its custodian to obtain possession of such Global Certificate, or
(iii) after the occurrence of an Event of Default, Certificate Owners
representing a majority in aggregate outstanding Certificate Balance of such
Global Certificate advise the Clearing Agency through the Participants in
writing (and the Clearing Agency so advises the Depositor, the Certificate
Registrar and the Master Servicers in writing) that the continuation in global
form of the Certificates being evidenced by such Global Certificate is no longer
in their best interests; provided that under no circumstances will Definitive
Certificates be issued to Certificate Owners of the Regulation S Temporary
Global Certificate. Upon notice of the occurrence of any of the events described
in the preceding sentence, the Certificate Registrar shall notify the Clearing
Agency and request the Clearing Agency to notify all Certificate Owners, through
the applicable Participants, of the occurrence of the event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of the Global Certificates
by the Clearing Agency, accompanied by registration instructions from the
Clearing Agency for registration, the Certificate Registrar shall execute, and
the Authenticating Agent shall authenticate and deliver, the Definitive
Certificates. None of the Depositor, the Trustee, the Paying Agent or the
Certificate Registrar shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates, all references
herein to obligations imposed upon or to be performed by the Clearing Agency
shall be deemed to be imposed upon and performed by the Certificate Registrar,
to the extent applicable with respect to such Definitive Certificates, and the
Certificate Registrar and the Trustee and the Paying Agent shall recognize the
Holders of Definitive Certificates as Certificateholders hereunder.
(b) Distributions of principal and interest on the Definitive
Certificates shall be made by the Paying Agent directly to holders of Definitive
Certificates in accordance with the procedures set forth in this Agreement.
ARTICLE IV
ADVANCES
P&I Advances and Servicing Advances shall be made as provided herein
by the General Master Servicer (with respect to the Mortgage Loans other than
NCB, FSB Loans) and the NCB Master Servicer (with respect to the NCB, FSB Loans)
and, if the applicable Master Servicer does not make such Advances, by the
Trustee, except to the extent that the applicable Master Servicer or the Trustee
determines in accordance with Section 4.4 below, that any such Advance would be
a Nonrecoverable Advance.
Section 4.1 P&I Advances by the Master Servicers
(a) On or prior to the Advance Report Date, the applicable Master
Servicer shall notify the Trustee and the Paying Agent if the P&I Advance Amount
for such Distribution Date is greater than zero, and such Master Servicer shall
only make a P&I Advance in respect of each Mortgage Loan of such amount on the
Master Servicer Remittance Date. It is understood that the obligation of each
Master Servicer to make such P&I Advances is mandatory and shall apply through
any court appointed stay period or similar payment delay resulting from any
insolvency of the Mortgagor or related bankruptcy. Notwithstanding the
foregoing, the applicable Master Servicer shall not be required to make such P&I
Advance, if such Master Servicer determines, in accordance with Section 4.4
below, that any such P&I Advance would be a Nonrecoverable Advance and shall not
make such P&I Advance if such P&I Advance, if made, would be a Nonrecoverable
Advance as determined by the applicable Special Servicer in accordance with the
Servicing Standard and the Special Servicer has notified the Master Servicer of
such determination not later than 24 hours (and on a Business Day) prior to the
date on which the Master Servicer would be required to make such P&I Advance in
the absence of a recoverability determination. Such determination shall be
conclusive and binding on the Trustee and the Certificateholders. The Master
Servicers and the Trustee shall not advance default interest, Balloon Payments,
Prepayment Premiums or Additional L-3 Interest. None of the Master Servicers or
the Trustee shall advance any amount due to be paid by the Swap Counterparty for
distribution to the Class A-3-1FL Certificates in the event that the Swap
Counterparty fails to make a required payment. If the Swap Counterparty fails to
make a required payment pursuant to the Swap Contract, the Trustee shall, on the
date on which such payment is due and not made, promptly notify the Swap
Counterparty and the related Credit Support Provider (as such term is defined in
the Swap Contract) of such failure, including the amount of any payment required
to be made by the Swap Counterparty.
(b) No Special Servicer shall make P&I Advances under this Agreement
or advances of any amount due to be paid by the Swap Counterparty for
distribution to the Class A-3-1FL Certificates in the event that the Swap
Counterparty fails to make a required payment. If a Master Servicer fails to
make a P&I Advance that it is required to make under this Section 4.1, it shall
promptly notify the Trustee and the Paying Agent of such failure.
(c) If a Master Servicer determines that there is a P&I Advance
Amount with respect to its applicable Mortgage Loans for a Distribution Date,
such Master Servicer shall on the Master Servicer Remittance Date either (A)
deposit in the applicable Certificate Account an amount equal to the P&I Advance
Amount or (B) utilize funds in such Certificate Account being held for future
distributions or withdrawals to make such Advance. Any funds being held in a
Certificate Account for future distribution or withdrawal and so used shall be
replaced by the applicable Master Servicer from its own funds by deposit in such
Certificate Account on or before any future Master Servicer Remittance Date to
the extent that funds in such Certificate Account on such Master Servicer
Remittance Date shall be less than payments to the Paying Agent or other Persons
required to be made on such date.
Section 4.2 Servicing Advances
The applicable Master Servicer and, if such Master Servicer does
not, the Trustee to the extent the Trustee receives written notice from the
Paying Agent that such Advance has not been made by such Master Servicer shall
make Servicing Advances to the extent provided in this Agreement, except to the
extent that such Master Servicer or the Trustee, as applicable, determines in
accordance with Section 4.4 below, that any such Advance would be a
Nonrecoverable Advance. If such Master Servicer or the Trustee, as applicable,
determines that such advance would constitute a Nonrecoverable Advance, then
such party shall promptly deliver notice of such determination to the applicable
Special Servicer. Upon receipt of such notice, the applicable Special Servicer
shall determine (with the reasonable assistance of such Master Servicer or the
Trustee, as applicable) whether the payment of such amount is (i) necessary to
preserve the related Mortgaged Property and (ii) would be in the best interest
of the Certificateholders. If such Special Servicer shall determine that the
payment of such amount is (i) necessary to preserve the related Mortgaged
Property and (ii) would be in the best interest of the Certificateholders, then
such Special Servicer shall direct such Master Servicer or the Trustee, as
applicable, in writing to make such payment and such party shall make such
payment from amounts in the Certificate Account. Such determination by such
Master Servicer or such Special Servicer shall be conclusive and binding on the
Trustee and the Certificateholders. The applicable Special Servicer shall not be
required to make Servicing Advances under this Agreement, but may make such
Servicing Advances at its option in which event the Master Servicer shall
reimburse such Special Servicer within 5 Business Days of receipt of a statement
therefor sent to the General Master Servicer at the General Master Servicer's
Contact Numbers. The applicable Special Servicer shall notify the applicable
Master Servicer that a Servicing Advance is required in connection with a
Specially Serviced Mortgage Loan or REO Property, and such Master Servicer shall
make such Servicing Advance within five Business Days of receipt of such notice.
In addition, each Special Servicer shall provide the applicable Master Servicer
or the Trustee with such information in its possession as the applicable Master
Servicer or the Trustee may reasonably request to enable such Master Servicer or
the Trustee, as applicable, to determine whether a requested Servicing Advance
would constitute a Nonrecoverable Advance. Any request by a Special Servicer
that a Master Servicer make a Servicing Advance shall be deemed to be a
determination by such Special Servicer that such requested Servicing Advance is
not a Nonrecoverable Advance and such Master Servicer shall be entitled to
conclusively rely on such determination; provided, that the determination shall
not be binding on any Master Servicer or the Trustee. The applicable Master
Servicer or Special Servicer may update or change its recoverability
determinations at any time (but not reverse the other Master Servicer or Special
Servicer's determination that an Advance is a Nonrecoverable Advance). Promptly
after discovering that such applicable Master Servicer has failed to make a
Servicing Advance that such Master Servicer is required to make hereunder, the
Paying Agent shall promptly notify the Trustee in writing of the failure by such
Master Servicer to make such Servicing Advance.
Section 4.3 Advances by the Trustee
(a) To the extent that a Master Servicer fails to make a P&I Advance
by the Master Servicer Remittance Date (other than a P&I Advance that such
Master Servicer determines is a Nonrecoverable Advance), the Trustee shall make
such P&I Advance to the extent the Trustee receives written notice from the
Paying Agent not later than 10:00 a.m. (New York City time) on the Distribution
Date that such Advance has not been made by the applicable Master Servicer on
the Master Servicer Remittance Date unless the Trustee determines that such P&I
Advance, if made, would be a Nonrecoverable Advance. To the extent the Trustee
is required hereunder to make P&I Advances on the Mortgage Loans, it shall remit
the amount thereof to the Paying Agent for deposit in the Distribution Account
by 1:00 p.m. (New York City time) on each such Distribution Date. The Paying
Agent shall notify the Trustee in writing as soon as practicable, but not later
than 10:00 a.m. (New York City time) on the Distribution Date if the applicable
Master Servicer has failed to make a P&I Advance.
(b) To the extent that a Master Servicer fails to make a Servicing
Advance by the date such Servicing Advance is required to be made (other than a
Servicing Advance that such Master Servicer or the applicable Special Servicer
determines is a Nonrecoverable Advance), and a Responsible Officer of the
Trustee receives notice thereof, the Trustee shall make such Servicing Advance
promptly, but in any event, not later than five Business Days after notice
thereof in accordance with Section 4.2, unless the Trustee determines that such
Servicing Advance, if made, would be a Nonrecoverable Advance. If the Trustee
determines that such advance would constitute a Nonrecoverable Advance, then the
Trustee shall deliver notice of such determination to the applicable Special
Servicer. Upon receipt of such notice, the applicable Special Servicer shall
determine (with the reasonable assistance of the Trustee) whether the payment of
such amount is (i) necessary to preserve the related Mortgaged Property and (ii)
would be in the best interest of the Certificateholders. If such Special
Servicer shall determine that the payment of such amount is (i) necessary to
preserve the related Mortgaged Property and (ii) would be in the best interest
of the Certificateholders, then such Special Servicer shall direct the Paying
Agent in writing to make such payment and the Paying Agent shall make such
payment from amounts in the Distribution Account.
Section 4.4 Evidence of Nonrecoverability
If a Master Servicer or the applicable Special Servicer determines
at any time, in its sole discretion, exercised in accordance with the Servicing
Standard, that any Advance previously made (or Unliquidated Advance in respect
thereof) or any proposed Advance, if made, would constitute a Nonrecoverable
Advance, such determination shall be evidenced by an Officer's Certificate
delivered to the Trustee, the applicable Master Servicer or the applicable
Special Servicer, the Paying Agent, the Operating Adviser and the Rating
Agencies promptly upon making such determination, but in no event later than the
Business Day following the date of such determination. Such Officer's
Certificate shall set forth the reasons for such determination of
nonrecoverability, together with, to the extent such information, report or
document is in the applicable Master Servicer's or applicable Special Servicer's
possession, any related financial information such as related income and expense
statements, rent rolls (with respect to mortgaged properties other than
residential cooperative properties), occupancy status, property inspections and
any Appraisals performed within the last 12 months on the Mortgaged Property,
and, if such reports are used by the applicable Master Servicer or the
applicable Special Servicer to determine that any P&I Advance or Servicing
Advance, as applicable, would be a Nonrecoverable Advance, any engineers'
reports, environmental surveys, internal final valuations or other information
relevant thereto which support such determination. If the Trustee determines at
any time, in its sole discretion, exercised in good faith, that any portion of
an Advance previously made or a portion of a proposed Advance that the Trustee
is required to make pursuant to this Agreement, if made, would constitute a
Nonrecoverable Advance, such determination shall be evidenced by an Officer's
Certificate of a Responsible Officer of the Trustee, delivered to the Depositor,
the applicable Master Servicer, the applicable Special Servicer, the Paying
Agent and the Operating Adviser similar to the Officer's Certificate of a Master
Servicer or a Special Servicer described in the prior sentence. The Trustee
shall not be required to make an Advance that the applicable Master Servicer or
the applicable Special Servicer has previously determined to be a Nonrecoverable
Advance. Notwithstanding any other provision of this Agreement, none of the
Master Servicers, the Special Servicers or the Trustee shall be obligated to,
nor shall it, make any Advance or make any payment that is designated in this
Agreement to be an Advance, if the Trustee determines in its good faith business
judgment and, with respect to the applicable Master Servicer or the applicable
Special Servicer, in accordance with the Servicing Standard, that such Advance
or such payment (including interest accrued thereon at the Advance Rate) would
be a Nonrecoverable Advance. Absent bad faith, the applicable Master Servicer's
determination as to the nonrecoverability of any Advance shall be conclusive and
binding on the Certificateholders and may, in all cases, be relied on by the
Trustee; provided, however, that the applicable Special Servicer may, at its
option, make a determination in accordance with the Servicing Standard that any
P&I Advance or Servicing Advance, if made, would be a Nonrecoverable Advance and
shall deliver to the Master Servicer and the Trustee notice of such
determination; provided, further, however, the applicable Special Servicer shall
have no right to make an affirmative determination that any P&I Advance is or
would be recoverable and, in the absence of a determination by the applicable
Special Servicer that such Advance is or would be a Nonrecoverable Advance, the
decision that a P&I Advance is recoverable shall remain with the applicable
Master Servicer or Trustee, as applicable. Absent bad faith, such determination
by the applicable Special Servicer shall be conclusive and binding on the
Certificateholders, the Master Servicers and the Trustee. The applicable Master
Servicer shall consider Unliquidated Advances in respect of prior P&I Advances
and Servicing Advances as outstanding Advances for purposes of nonrecoverability
determinations as if such Unliquidated Advance were a P&I Advance or Servicing
Advance, as applicable.
Section 4.5 Interest on Advances; Calculation of Outstanding
Advances with Respect to a Mortgage Loan
Any unreimbursed Advance funded from each Master Servicer's, each
Special Servicer's or the Trustee's own funds shall accrue interest on a daily
basis, at a per annum rate equal to the Advance Rate, from and including the
date such Advance was made to but not including the date on which such Advance
has been reimbursed; provided, however, that neither the Master Servicers nor
any other party shall be entitled to interest accrued on the amount of any P&I
Advance with respect to any Mortgage Loan for the period commencing on the date
of such P&I Advance and ending on the day on which the grace period applicable
to the related Mortgagor's obligation to make the related Scheduled Payment
expires pursuant to the related Mortgage Loan documents but shall be entitled to
interest on such Advance at the Advance Rate to the extent the Scheduled Payment
remains outstanding beyond the expiration of the grace period. In addition, no
Master Servicer shall be entitled to interest on any particular P&I Advance (or
portion thereof) made thereby to the extent a payment (or portion thereof) is
received but is being held by or on behalf of such Master Servicer in connection
with any dispute, claim or offset. For purposes of determining whether a P&I
Advance is outstanding, amounts collected with respect to a particular Mortgage
Loan or a particular REO Property and treated as collections of principal or
interest shall be applied first to reimburse the earliest P&I Advance and then
each succeeding P&I Advance to the extent not inconsistent with Section 4.6. The
applicable Master Servicer shall use efforts consistent with the Servicing
Standard to collect (but shall have no further obligation to collect), with
respect to the Mortgage Loans that are not Specially Serviced Mortgage Loans,
Late Fees and default interest from the Mortgagor in an amount sufficient to pay
Advance Interest incurred and unpaid with respect to such Mortgage Loan arising
on or after the Cut-off Date. The applicable Master Servicer shall be entitled
to retain Late Fees and default interest paid by any Mortgagor during a
Collection Period with respect to any Mortgage Loan (other than the portion of
such Late Fees and default interest that relates to the period commencing after
the Servicing Transfer Event in respect of a Specially Serviced Mortgage Loan,
as to which the applicable Special Servicer shall retain Late Fees and default
interest with respect to such Specially Serviced Mortgage Loan, subject to the
offsets set forth below) as additional servicing compensation only to the extent
such Late Fees and default interest with respect to such Mortgage Loan (x)
exceed unreimbursed Additional Trust Fund Expenses and Advance Interest with
respect to such Mortgage Loan arising on or after the Cut-off Date and (y) are
not used to pay Special Servicing Fees, Liquidation Fees and Workout Fees
accrued with respect to such Collection Period on such Mortgage Loan. The
applicable Special Servicer, with respect to any Specially Serviced Mortgage
Loan, shall (i) pay from any Late Fees and default interest collected from such
Specially Serviced Mortgage Loan (a) any outstanding and unpaid Advance Interest
payable with respect to such Specially Serviced Mortgage Loan to the applicable
Master Servicer, the applicable Special Servicer or the Trustee, as applicable,
and (b) to the Trust, any losses previously incurred by the Trust with respect
to such Specially Serviced Mortgage Loan (other than the related Special
Servicing Fees) and (ii) retain any remaining portion of such Late Fees and
default interest as additional Special Servicer Compensation. It is hereby
acknowledged that the applicable Master Servicer may only waive Late Fees and
default interest to the extent set forth in Section 8.3(a).
Section 4.6 Reimbursement of Advances and Advance Interest
(a) Advances made with respect to each Mortgage Loan or Specially
Serviced Mortgage Loan or REO Property (including Advances later determined to
be Nonrecoverable Advances) and Advance Interest thereon shall be reimbursed to
the extent of the amounts identified to be applied therefor in Section 5.2. The
aggregate of the amounts available to repay Advances and Advance Interest
thereon pursuant to Section 5.2 collected in any Collection Period with respect
to Mortgage Loans or Specially Serviced Mortgage Loans or REO Property shall be
an "Available Advance Reimbursement Amount."
(b) To the extent that Advances have been made on the Mortgage
Loans, any Specially Serviced Mortgage Loans or any REO Mortgage Loans, the
Available Advance Reimbursement Amount with respect to any Determination Date
shall be applied to reimburse (i) the Trustee for any Advances outstanding to
the Trustee with respect to any of such Mortgage Loans, any of such Specially
Serviced Mortgage Loans or REO Mortgage Loans, plus any Advance Interest owed to
the Trustee with respect to such Advances and then (ii) the applicable Master
Servicer and applicable Special Servicer for any Advances outstanding to such
Master Servicer or such Special Servicer, as the case may be, with respect to
any of such Mortgage Loans, any of such Specially Serviced Mortgage Loans or REO
Mortgage Loans, plus any Advance Interest owed to the applicable Master Servicer
or applicable Special Servicer with respect to such Advances. To the extent that
any Advance Interest payable to the applicable Master Servicer, the applicable
Special Servicer or the Trustee with respect to a Specially Serviced Mortgage
Loan or REO Mortgage Loan cannot be recovered from the related Mortgagor, the
amount of such Advance Interest shall be payable to the Trustee, the applicable
Master Servicer or the applicable Special Servicer, as the case may be, from
amounts on deposit in the applicable Certificate Account (or sub-account
thereof) (or, if not available from such Certificate Account, the other
Certificate Account) or the Distribution Account pursuant to Section 5.2(a) or
Section 5.3(b)(ii), to the extent of amounts identified to be applied
thereunder. The Master Servicers', the Special Servicers' and the Trustee's
right of reimbursement under this Agreement for Advances and interest thereon
shall be prior to the rights of the Certificateholders to receive any amounts
recovered with respect to such Mortgage Loans or REO Mortgage Loans.
(c) Advance Interest arising on or after the Cut-off Date and not
previously paid with respect to any Mortgage Loan will be paid to the Trustee,
the applicable Special Servicer and/or the applicable Master Servicer (in
accordance with the priorities specified in the preceding paragraph) first, from
Late Fees and default interest collected with respect to such Mortgage Loan
during the Collection Period, and then from Excess Liquidation Proceeds then
available prior to payment from any other amounts. Late Fees and default
interest will be applied on a "loan-by-loan basis" (under which Late Fees and
default interest with respect to a Mortgage Loan will be offset against the
Advance Interest incurred and unpaid with respect to such Mortgage Loan arising
on or after the Cut-off Date).
(d) To the extent that a Special Servicer incurs out-of-pocket
expenses, in accordance with the Servicing Standard, in connection with
servicing Specially Serviced Mortgage Loans, the applicable Master Servicer
shall, subject to Section 4.4, reimburse such Special Servicer for such
expenditures on the next succeeding Master Servicer Remittance Date, provided
such Special Servicer has delivered, on or before the related Determination
Date, an invoice and a report substantiating such expenses from such Special
Servicer requesting such reimbursement. All such amounts paid by a Special
Servicer and reimbursed by the applicable Master Servicer shall be a Servicing
Advance. In the event that the applicable Master Servicer fails to reimburse
such Special Servicer hereunder or the applicable Master Servicer determines
that such Servicing Advance was or, if made, would be a Nonrecoverable Advance
and the applicable Master Servicer does not make such payment, such Special
Servicer shall notify the applicable Master Servicer and the Paying Agent in
writing of such nonpayment and the amount payable to such Special Servicer and
shall be entitled to receive reimbursement from the Trust as an Additional Trust
Expense. The applicable Master Servicer, the Paying Agent and the Trustee shall
have no obligation to verify the amount payable to such Special Servicer
pursuant to this Section 4.6(d) and circumstances surrounding the notice
delivered by such Special Servicer pursuant to this Section 4.6(d).
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections
(a) On or prior to the Closing Date, each Master Servicer shall
open, or cause to be opened, and shall thereafter maintain, or cause to be
maintained, a separate account or accounts, which accounts must be Eligible
Accounts, in the name of "GMAC Commercial Mortgage Corporation, as General
Master Servicer for Xxxxx Fargo Bank, N.A., as Trustee for the Holders of Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-IQ10" and "NCB, FSB, as NCB Master Servicer for Xxxxx Fargo Bank, N.A. as
Trustee for the Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-IQ10" (collectively, or individually, as
the case may be the "Certificate Account"). The General Master Servicer shall
maintain the Certificate Account with respect to all of the Mortgage Loans
(other than the NCB, FSB Loans) and the NCB Master Servicer shall maintain the
Certificate Account with respect to the NCB, FSB Loans. On or prior to the
Closing Date, each Master Servicer shall open, or cause to be opened, and shall
maintain, or cause to be maintained an additional separate account or accounts
in the name of "GMAC Commercial Mortgage Corporation, as General Master Servicer
for Xxxxx Fargo Bank, N.A., as Trustee for the Holders of Xxxxxx Xxxxxxx Capital
I Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-IQ10" and
"NCB, FSB, as NCB Master Servicer for Xxxxx Fargo Bank, N.A. as Trustee for the
Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-IQ10" (collectively, or individually, as the case may
be, the "Interest Reserve Account"). The General Master Servicer shall maintain
the Interest Reserve Accounts with respect to non-NCB, FSB Loans and the NCB
Master Servicer shall maintain the Interest Reserve Accounts with respect to the
NCB, FSB Loans.
(b) On or prior to the date a Master Servicer shall initially
deposit funds in a Certificate Account or an Interest Reserve Account, as the
case may be, such Master Servicer shall give to the Paying Agent and the Trustee
prior written notice of the name and address of the depository institution(s) at
which such accounts are maintained and the account number of such accounts. The
Master Servicers shall take such actions as are necessary to cause any
depository institution holding a Certificate Account and an Interest Reserve
Account to hold such accounts in the name of the applicable Master Servicer as
provided in Section 5.1(a), subject to such Master Servicer's (or its Primary
Servicer's or its Sub-Servicer's) right to direct payments and investments and
its rights of withdrawal under this Agreement.
(c) The applicable Master Servicer shall deposit, or cause to be
deposited, into its Certificate Account on the Business Day following receipt
(or, in the case of an inadvertent failure to make such deposit on the Business
Day following receipt, within 3 Business Days of discovery of such failure and
in the case of unscheduled remittances of principal or interest, on the Business
Day following identification of the proper application of such amounts), the
following amounts received by it (including amounts remitted to such Master
Servicer by the applicable Special Servicer from the applicable REO Account
pursuant to Section 9.14 and amounts received from the Primary Servicers or
Sub-Servicers), other than amounts received by it in respect of interest and
principal on the Mortgage Loans due on or before the Cut-Off Date which shall be
remitted to the applicable Seller (provided that such Master Servicer (I) may
retain amounts otherwise payable to such Master Servicer as provided in Section
5.2(a) rather than deposit them into such Certificate Account, (II) shall,
rather than deposit them in the Certificate Account, directly remit to the
Primary Servicers the applicable Primary Servicing Fees payable as provided in
Section 5.2(a)(iv) (unless already retained by the applicable Primary Servicer),
and (III) shall, rather than deposit them in a Certificate Account, directly
remit the Excess Servicing Fees to the holders thereof as provided in Section
5.2(a)(iv) (unless already retained by the applicable holder of the excess
servicing rights)):
(A) Principal: all payments on account of principal, including
Principal Prepayments, the principal component of Scheduled
Payments, and any Late Collections in respect thereof, on the
Mortgage Loans;
(B) Interest: all payments on account of interest on the
Mortgage Loans (including Additional L-3 Interest, which shall be
payable only to the Class EI-L3 Certificateholders, and Excess
Interest, which shall be payable only to the Class EI
Certificateholders, in each case as provided herein, and excluding
Interest Reserve Amounts to be deposited in the applicable Interest
Reserve Account pursuant to Section 5.1(d) below);
(C) Liquidation Proceeds: all Liquidation Proceeds with
respect to the Mortgage Loans;
(D) Insurance Proceeds: all Insurance Proceeds other than
proceeds to be applied to the restoration or repair of the property
subject to the related Mortgage or released to the related Mortgagor
in accordance with the Servicing Standard, which proceeds shall be
deposited by such Master Servicer into the applicable Escrow Account
and not deposited in the Certificate Accounts;
(E) Condemnation Proceeds: all Condemnation Proceeds other
than proceeds to be applied to the restoration or repair of the
property subject to the related Mortgage or released to the related
Mortgagor in accordance with the Servicing Standard, which proceeds
shall be deposited by such Master Servicer into the applicable
Escrow Account and not deposited in the Certificate Accounts;
(F) REO Income: all REO Income received from the applicable
Special Servicer;
(G) Investment Losses: any amounts required to be deposited by
such Master Servicer pursuant to Section 5.1(e) in connection with
losses realized on Eligible Investments with respect to funds held
in the Certificate Accounts and amounts required to be deposited by
the applicable Special Servicer pursuant to Section 9.14(b) in
connection with losses realized on Eligible Investments with respect
to funds held in the REO Accounts;
(H) Advances: all P&I Advances unless made directly to the
Distribution Account;
(I) Compensating Interest: all Compensating Interest received
with respect to the Mortgage Loans; and
(J) Other: all other amounts, including Prepayment Premiums,
required to be deposited in the Certificate Accounts pursuant to
this Agreement, including, but not limited to, Purchase Proceeds of
any Mortgage Loans repurchased by a Seller or the maker of a
representation and warranty with respect to any Mortgage Loan or
substitution shortfall amounts (as described in the ninth paragraph
of Section 2.3(a)) paid by a Seller in connection with the
substitution of any Qualifying Substitute Mortgage Loans, any
payments or recoveries in respect of Unliquidated Advances or in
respect of Nonrecoverable Advances paid from principal collections
on the Mortgage Loans pursuant to Section 5.2(a)(II).
Remittances from any REO Accounts to the applicable Master Servicer for deposit
in the applicable Certificate Accounts shall be made by the applicable Special
Servicer no later than the Special Servicer Remittance Date.
(d) The applicable Master Servicer, with respect to each
Distribution Date occurring in January (other than in any leap year) and
February of each year, shall deposit in the applicable Interest Reserve Account
in respect of each related Interest Reserve Loan, an amount equal to one day's
interest at the related REMIC I Net Mortgage Rate, as applicable (without regard
to the provisos in the definition of Adjusted Mortgage Rate), on the Scheduled
Principal Balance of such Mortgage Loan as of the Due Date in the month in which
such Distribution Date occurs, to the extent a Scheduled Payment or P&I Advance
is timely made in respect thereof for such Due Date (all amounts so deposited in
any consecutive January and February in respect of each Interest Reserve Loan,
the "Interest Reserve Amount").
(e) Funds in the Certificate Accounts and Interest Reserve Accounts
may be invested and, if invested, shall be invested by, and at the risk of, the
Master Servicer in Eligible Investments selected by such Master Servicer which
shall mature, unless payable on demand, not later than the Business Day
immediately preceding the next Master Servicer Remittance Date, and any such
Eligible Investment shall not be sold or disposed of prior to its maturity
unless payable on demand. All such Eligible Investments shall be made in the
name of "Xxxxx Fargo Bank, N.A., as Trustee for the Holders of the Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-IQ10." None of the Depositor, the Mortgagors, the Paying Agent or the
Trustee shall be liable for any loss incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the applicable Master Servicer as additional
servicing compensation and shall be subject to its withdrawal at any time from
time to time. The amount of any losses incurred in respect of any such
investments shall be for the account of the applicable Master Servicer which
shall deposit the amount of such loss (to the extent not offset by income from
other investments) in the applicable Certificate Account or applicable Interest
Reserve Account, as the case may be, out of its own funds immediately as
realized. No Master Servicer shall be liable for any losses incurred in respect
of any account which is not controlled by such Master Servicer or any losses
with respect to a default on an Eligible Investment. If the applicable Master
Servicer deposits in or transfers to any Certificate Account or any Interest
Reserve Account, as the case may be, any amount not required to be deposited
therein or transferred thereto, it may at any time withdraw such amount or
retransfer such amount from such Certificate Account or Interest Reserve
Account, as the case may be, any provision herein to the contrary
notwithstanding.
(f) Except as expressly provided otherwise in this Agreement, if any
default occurs in the making of a payment due under any Eligible Investment, or
if a default occurs in any other performance required under any Eligible
Investment, the Paying Agent on behalf of and at the direction of the Trustee
may take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings; provided, however, that if a Master Servicer shall have deposited
in the applicable Certificate Account and the Interest Reserve Account an amount
equal to all amounts due under any such Eligible Investment (net of anticipated
income or earnings thereon that would have been payable to such Master Servicer
as additional servicing compensation) such Master Servicer shall have the sole
right to enforce such payment or performance.
(g) Certain of the Mortgage Loans may provide for payment by the
Mortgagor to the applicable Master Servicer of amounts to be used for payment of
Escrow Amounts for the account of the Mortgagor. The applicable Master Servicer
shall deal with these amounts in accordance with the Servicing Standard, the
terms of the related Mortgage Loans and Section 8.3(e) hereof, and the Primary
Servicers will hold any Escrow Accounts relating to the Mortgage Loans that they
service in accordance with the requirements set forth in Section 8.3(e). No
Master Servicer shall release any Escrow Amounts held for "earn-outs" or
performance criteria listed on Schedule XI hereof, without the prior consent of
the Operating Adviser, which consent shall not be unreasonably withheld or
delayed. Within 20 days following the first anniversary of the Closing Date, the
applicable Master Servicer shall deliver to the Trustee, the Paying Agent and
the Operating Adviser, for each Mortgage Loan set forth on Schedule VIII hereto,
a brief statement as to the status of the work or project based on the most
recent information provided by the related Mortgagor. Schedule VIII sets forth
those Mortgage Loans as to which an upfront reserve was collected at the closing
of such Mortgage Loan (and still exists) in an amount in excess of $75,000 with
respect to specific immediate engineering work, completion of additional
construction, environmental remediation or similar one-time projects (but not
with respect to escrow accounts maintained for ongoing obligations, such as real
estate taxes, insurance premiums, ongoing property maintenance, replacements and
capital improvements or debt service). If the work or project is not completed
in accordance with the requirements of the escrow, the applicable Master
Servicer and the applicable Special Servicer (which shall itself consult with
the Operating Adviser) will consult with each other as to whether there exists a
material default under the underlying Mortgage Loan documents.
(h) In the case of the Mortgage Loans set forth on Schedule XII, as
to which the Scheduled Payment is due in a calendar month on a Due Date
(including any grace period) that may occur after the end of the Collection
Period ending in such calendar month, subject to Section 4.4, the applicable
Master Servicer shall, unless the Scheduled Payment is received before the end
of the Collection Period, make a P&I Advance by deposit to the Certificate
Account on the Master Servicer Remittance Date in an amount equal to the
Scheduled Payment or the Assumed Scheduled Payment, as applicable, and for
purposes of the definition of "Available Distribution Amount" and "Principal
Distribution Amount," such Scheduled Payment or Assumed Scheduled Payment, as
applicable, shall be deemed to have been received in such Collection Period.
Section 5.2 Application of Funds in the Certificate Accounts and
Interest Reserve Accounts
(a) Subsection (I). Each Master Servicer shall, from time to time,
make withdrawals from the applicable Certificate Accounts and remit them by wire
transfer prior to 2:00 p.m., New York City time, on the related Master Servicer
Remittance Date, in immediately available funds to the account specified in this
Section or otherwise (x) to such account as each shall determine from time to
time of amounts payable to the applicable Master Servicer from the applicable
Certificate Account pursuant to clauses (i), (ii), (iii), (iv), (vi), (viii) and
(ix) below; (y) to the account specified in writing by the Paying Agent from
time to time of amounts payable to the Paying Agent and the Trustee from the
applicable Certificate Account pursuant to clauses (ii), (iii), (v), (vi), (xi),
(xii) and (xiii) below; and (z) to the applicable Special Servicer from time to
time of amounts payable to such Special Servicer from the applicable Certificate
Account pursuant to clauses (i), (ii), (iv), (vi), (vii) and (ix) below of the
following amounts, from the amounts specified for the following purposes:
(i) Fees: Each Master Servicer shall pay (A) to itself Late Fees (in
excess of amounts used to pay Advance Interest) relating to Mortgage Loans
which are not Specially Serviced Mortgage Loans, 100% of any Modification
Fees relating to Mortgage Loans which are not Specially Serviced Mortgage
Loans (except with respect to the UCMFI Loans with respect to which the
Special Servicer shall receive 50% of such fees with respect to matters
requiring the consent of the Special Servicer) as provided in Section
8.18(b), 100% of assumption application fees relating to Mortgage Loans
that are not Specially Serviced Mortgage Loans, 50% of any assumption fees
relating to Mortgage Loans which are not Specially Serviced Mortgage Loans
that require Special Servicer approval or 100% of any assumption fees
relating to Mortgage Loans which are not Specially Serviced Mortgage Loans
that, with respect to the assignment, assumption or substitution (a) the
consent of the Special Servicer was not required or (b) is "expressly
permitted" pursuant to the terms of the related Mortgage Loan as payable
under Section 8.7(a) or 8.7(d), 100% of any extension fees payable under
Section 8.10 or other fees payable to each such Master Servicer hereunder;
provided that any such fees described in (A) hereof shall be divided
between such Master Servicer and any related Primary Servicer as set forth
in the applicable Primary Servicing Agreement and (B) directly to the
applicable Special Servicer, 50% of any assumption fees on Mortgage Loans
which are not Specially Serviced Mortgage Loans and for which with respect
to the assignment, assumption or substitution (a) the consent of the
Special Servicer was required or (b) is not "expressly permitted" pursuant
to the terms of the related Mortgage Loan as payable under Section 8.7(a)
or 8.7(d) and, to the extent deposited into a Certificate Account, all
assumption fees (including assumption application fees) relating to
Specially Serviced Mortgage Loans and, to the extent provided in Section
9.11(c), Late Fees, Modification Fees and other fees collected on
Specially Serviced Mortgage Loans, in each case to the extent provided for
herein from funds paid by or on behalf of the applicable Mortgagor and, to
the extent provided in Section 9.11(c), default interest (in excess of
Advance Interest arising only from that particular Specially Serviced
Mortgage Loan for which the Late Fees or default interest were collected);
(ii) Servicing Advances (including amounts later determined to be
Nonrecoverable Advances): in the case of all Mortgage Loans, subject to
subsection (iv) of Section 5.2(a)(II) below, to reimburse or pay to the
Master Servicers, the Special Servicers and the Trustee, pursuant to
Section 4.6, (x) prior to a Final Recovery Determination or determination
in accordance with Section 4.4 that any Servicing Advance is a
Nonrecoverable Advance, Servicing Advances on the related Mortgage Loan
from payments made by or on behalf of the related Mortgagor of the amounts
to which a Servicing Advance relates or from REO Income from the related
REO Property or from Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds or Purchase Proceeds and, to the extent that a
Servicing Advance has been or is being reimbursed, any related Advance
Interest thereon first, from Late Fees and default interest collected
during the Collection Period, and then from Excess Liquidation Proceeds
then available and then from any other amounts on deposit in the
applicable Certificate Account (or, if not available from such Certificate
Account, the other Certificate Account); provided that Late Fees and
default interest will be applied on a "loan by loan basis" (under which
Late Fees and default interest paid with respect to each Mortgage Loan,
will be offset against the Advance Interest incurred and unpaid with
respect to the particular Mortgage Loan, on or after the Cut Off Date), to
the payment of Advance Interest incurred on or after the Cut Off Date and
unpaid on all Advances on such Mortgage Loan; provided, further, that if
both the General Master Servicer and the General Special Servicer have
outstanding Servicing Advances at the same time, because the General
Master Servicer did not reimburse the General Special Servicer for such
Servicing Advance as provided in Section 4.3 hereof, and amounts on
deposit in the Certificate Account are not sufficient to reimburse both
such Servicing Advances with interest thereon, then such Servicing Advance
with respect to the subject Mortgage Loan made by the General Special
Servicer shall be reimbursed first until paid in full or (y) after a Final
Recovery Determination or determination that any Servicing Advance on the
related Mortgage Loan is a Nonrecoverable Advance, any Servicing Advances
made on the related Mortgage Loan or REO Property from any funds on
deposit in the applicable Certificate Account (or, if not available from
such Certificate Account, the other Certificate Account) (regardless of
whether such amount was recovered from the applicable Mortgage Loan or REO
Property) and pay Advance Interest thereon first, from Late Fees and
default interest collected during the Collection Period (applying such
Late Fees and default interest on a "loan by loan basis" to the payment of
Advance Interest incurred and unpaid on all Advances on such Mortgage Loan
arising on or after the Cut Off Date), then from Excess Liquidation
Proceeds then available and then from any other amounts on deposit in the
applicable Certificate Account (notwithstanding anything herein to the
contrary each Master Servicer shall reimburse itself or such other party
pursuant to Section 4.4(b));
(iii) P&I Advances (including amounts later to be determined to be
Nonrecoverable Advances): in the case of the Mortgage Loans, subject to
subsection (iv) of Section 5.2(a)(II) below, to reimburse or pay to each
Master Servicer and the Trustee, pursuant to Section 4.6, (x) if prior to
a Final Recovery Determination or determination that any Advance is a
Nonrecoverable Advance, any P&I Advances from Late Collections made by the
Mortgagor of the amounts to which a P&I Advance relates, or REO Income
from the related REO Property or from Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds or Purchase Proceeds allocable to the related
Mortgage Loan and, to the extent that a P&I Advance has been or is being
reimbursed, any related Advance Interest thereon, first, from Late Fees
and default interest collected during the Collection Period and allocable
to such Mortgage Loan, and then from Excess Liquidation Proceeds then
available and then from any other amounts on deposit in the applicable
Certificate Account (or, if not available from such Certificate Account,
the other Certificate Account); provided that Late Fees and default
interest will be applied on a "loan-by-loan basis" (under which Late Fees
and default interest paid with respect to each Mortgage Loan will be
offset against the Advance Interest incurred and unpaid with respect to
the particular Mortgage Loan on or after the Cut-Off Date) or (y) if after
a Final Recovery Determination or determination in accordance with Section
4.4 that any P&I Advance on the related Mortgage Loan is a Nonrecoverable
Advance, for any Mortgage Loan, any P&I Advances made on the related
Mortgage Loan or REO Property from any funds on deposit in the applicable
Certificate Account (or, if not available from such Certificate Account,
the other Certificate Account) (regardless of whether such amount was
recovered from the applicable Mortgage Loan or REO Property) and any
Advance Interest thereon, first, from Late Fees and default interest
collected during the Collection Period allocable to such Mortgage Loan
(applying such Late Fees and default interest on a "loan-by-loan basis,"
to the payment of Advance Interest incurred and unpaid on all Advances on
such Mortgage Loan incurred on or after the Cut-Off Date), then from
Excess Liquidation Proceeds then available and then from any other amounts
on deposit in the applicable Certificate Account (or, if not available
from such Certificate Account, the other Certificate Account);
(iv) Servicing Fees and Special Servicer Compensation: to pay to
itself the Master Servicing Fee, subject to reduction for any Compensating
Interest, to pay to the Special Servicers the Special Servicing Fee and
the Work-Out Fee and, if applicable, to pay to the Primary Servicers (or
the General Master Servicer) the Primary Servicing Fees and to pay to the
parties entitled thereto the Excess Servicing Fees (to the extent not
previously retained by any of such parties);
(v) Trustee Fee: to pay to the Distribution Account for withdrawal
by the Trustee, the Trustee Fee;
(vi) Expenses of Trust: to pay to the Person entitled thereto any
amounts specified herein to be Additional Trust Expenses at the time set
forth herein or in the definition thereof, the payment of which is not
more specifically provided for in this Agreement; provided that the
Depositor shall not be entitled to receive reimbursement for performing
its duties under this Agreement;
(vii) Liquidation Fees: to pay to the Special Servicers from the
applicable Certificate Accounts, the amount certified by each Special
Servicer equal to the Liquidation Fee, to the extent provided in Section
9.11 hereof;
(viii) Investment Income: to pay to itself income and gain realized
on the investment of funds deposited in the applicable Certificate
Accounts;
(ix) Prepayment Interest Excesses: to pay to the Master Servicers
the aggregate Prepayment Interest Excesses relating to the Mortgage Loans
for which they act as Master Servicer which are not Specially Serviced
Mortgage Loans, to the extent not offset by Prepayment Interest Shortfalls
relating to such Mortgage Loans; and to pay to the Master Servicers the
aggregate Prepayment Interest Excesses relating to the Specially Serviced
Mortgage Loans for which they act as Master Servicer, which have received
voluntary Principal Prepayments (not from Liquidation Proceeds or from
modifications to Specially Serviced Mortgage Loans), to the extent not
offset by Prepayment Interest Shortfalls relating to such Specially
Serviced Mortgage Loans;
(x) Correction of Errors: to withdraw funds deposited in the
Certificate Accounts in error;
(xi) Distribution Account: other than amounts held for payment in
future periods or pursuant to clause (xii) below, to make payment on each
Master Servicer Remittance Date of the remaining amounts in the applicable
Certificate Accounts (excluding Excess Interest, Additional L-3 Interest
and Excess Liquidation Proceeds) into the Distribution Account (or in the
case of any Excess Interest or Additional L-3 Interest, deposit to the
Excess Interest Sub-account), the obligation to make such payments to be
offset by the amount of any Net Swap Payment, as set forth in Section
8.30(b) and Section 6.12;
(xii) Reserve Account: to make payment on each Master Servicer
Remittance Date to the Reserve Account, any Excess Liquidation Proceeds
(subject to Section 4.6(c)); and
(xiii) Clear and Terminate: to clear and terminate the Certificate
Accounts pursuant to Section 8.29.
Subsection (II). The provisions of this subsection II of this
Section 5.2(a) shall apply notwithstanding any contrary provision of subsection
(I) of this Section 5.2(a):
(i) Identification of Workout-Delayed Reimbursement Amounts: If any
Advance made with respect to any Mortgage Loan on or before the date on
which such Mortgage Loan becomes (or, but for the requirement that the
Mortgagor shall have made three consecutive scheduled payments under its
modified terms, would then constitute) a Rehabilitated Mortgage Loan,
together with Advance Interest accrued thereon, is not, pursuant to the
operation of the provisions of Section 5.2(a)(I), reimbursed to the Person
who made such Advance on or before the date, if any, on which such
Mortgage Loan becomes a Rehabilitated Mortgage Loan, such Advance,
together with such Advance Interest, shall constitute a "Workout-Delayed
Reimbursement Amount" to the extent that such amount has not been
determined to constitute a Nonrecoverable Advance. All references herein
to "Workout-Delayed Reimbursement Amount" shall be construed always to
mean the related Advance and any Advance Interest thereon, together with
any further Advance Interest that accrues on the unreimbursed portion of
such Advance from time to time in accordance with the other provisions of
this Agreement. That any amount constitutes all or a portion of any
Workout-Delayed Reimbursement Amount shall not in any manner limit the
right of any Person hereunder to determine that such amount instead
constitutes a Nonrecoverable Advance.
(ii) General Relationship of Provisions: Subsection (iii) below
(subject to the terms and conditions thereof) sets forth the terms of and
conditions to the right of a Person to be reimbursed for any
Workout-Delayed Reimbursement Amount to the extent that such Person is not
otherwise entitled to reimbursement and payment of such Workout-Delayed
Reimbursement Amount pursuant to the operation of Section 5.2(a)(I) above.
Subsection (iv) below (subject to the terms and conditions thereof)
authorizes the Master Servicer to abstain from reimbursing itself (or, if
applicable, the Trustee to abstain from obtaining reimbursement) for
Nonrecoverable Advances under certain circumstances in its sole
discretion. Upon any determination that all or any portion of a
Workout-Delayed Reimbursement Amount constitutes a Nonrecoverable Advance,
then the reimbursement or payment of such amount (and any further Advance
Interest that may accrue thereon) shall cease to be subject to the
operation of subsection (iii) below, such amount (and further Advance
Interest) shall be as fully payable and reimbursable to the relevant
Person as would any other Nonrecoverable Advance (and Advance Interest
thereon) and, as a Nonrecoverable Advance, such amount may become the
subject of the applicable Master Servicer's (or, if applicable, the
Trustee's) exercise of its sole discretion authorized by subsection (iv)
below.
(iii) Reimbursements of Workout-Delayed Reimbursement Amounts: Each
Master Servicer, each Special Servicer and the Trustee, as applicable,
shall be entitled to reimbursement and payment for all Workout-Delayed
Reimbursement Amounts in each Collection Period; provided, however, that
the aggregate amount (for all such Persons collectively) of such
reimbursements and payments in such Collection Period shall not exceed
(and the reimbursement and payment shall be made from) the aggregate
amounts in the Certificate Account allocable to principal for such
Collection Period contemplated by clause (I)(A) of the definition of
Principal Distribution Amount (but not including any such amounts that
constitute Advances) and net of any Nonrecoverable Advances then
outstanding and reimbursable from such amounts in the Certificate Account
allocable to principal in accordance with Section 5.2(a)(II)(iv) below. As
and to the extent provided in clause (II)(A) of the definition thereof,
the Principal Distribution Amount for the Distribution Date related to
such Collection Period shall be reduced to the extent that such payment or
reimbursement of a Workout-Delayed Reimbursement Amount is made from
amounts in the Certificate Account allocable to principal pursuant to the
preceding sentence.
(iv) Reimbursement of Nonrecoverable Advances; Sole Discretion to
Abstain from Reimbursements of Certain Nonrecoverable Advances: To the
extent that Section 5.2(a)(I) otherwise entitles the applicable Master
Servicer, Special Servicer or Trustee to reimbursement for any
Nonrecoverable Advance (including Workout Delayed Reimbursement Amounts
that have been determined by a Master Servicer, Special Servicer or the
Trustee to be Nonrecoverable Advances) (or payment of Advance Interest
thereon from a source other than Late Fees and default interest on the
related Mortgage Loan) during any Collection Period, then, notwithstanding
any contrary provision of subsection (I) above, (a) to the extent that one
or more such reimbursements and payments of Nonrecoverable Advances (and
such Advance Interest thereon) are made, such reimbursements and payments
shall be made, first, from the aggregate principal collections and
recoveries on the Mortgage Loans for such Collection Period contemplated
by clause (I)(A) of the definition of Principal Distribution Amount (but
not including any such amounts that constitute Advances, and prior to any
deduction for Workout-Delayed Reimbursement Amounts (and Advance Interest
thereon) that were reimbursed or paid during the related Collection Period
from principal collections on the Mortgage Loans, as described by clause
(II)(A) of the definition of Principal Distribution Amount and pursuant to
subsection (iii) of Section 5.2(a)(II)), and then from other collections
(including interest) on the Mortgage Loans for such Collection Period, and
(b) if and to the extent that the amount of such a Nonrecoverable Advance
(and Advance Interest thereon), together with all Nonrecoverable Advances
(and Advance Interest thereon) theretofore reimbursed during such
Collection Period, would exceed such principal collections and recoveries
on the Mortgage Loans for such Collection Period (and Advance Interest
thereon), the applicable Master Servicer (and the applicable Special
Servicer or the Trustee, as applicable, if it made the relevant Advance)
is hereby authorized (but shall not be construed to have any obligation
whatsoever), if it elects at its sole discretion (subject to the
requirement below that the applicable Master Servicer may not defer any
reimbursement for more than 6 Collection Periods without the consent of
the Operating Advisor), to abstain from reimbursing itself
(notwithstanding that it is entitled to such reimbursement) during that
Collection Period for all or a portion of such Nonrecoverable Advance (and
Advance Interest thereon); provided, however, that no deferment shall be
more than the amount by which the Nonrecoverable Advances (and Advance
Interest thereon) exceed the amount of principal on collection in the
Certificate Account. The applicable Master Servicer or applicable Special
Servicer, in considering whether an Advance is a Nonrecoverable Advance,
shall be entitled to give due regard to the existence of any outstanding
Nonrecoverable Advance or Workout-Delayed Reimbursement Amount with
respect to other Mortgage Loans which, at the time of such consideration,
the reimbursement of which is being deferred or delayed by the applicable
Master Servicer, applicable Special Servicer or the Trustee because there
is insufficient principal available for such reimbursement, in light of
the fact that proceeds on the related Mortgage Loan are a source of
reimbursement not only for the P&I Advance or Servicing Advance under
consideration, but also as a potential source of reimbursement of such
Nonrecoverable Advance or Workout-Delayed Reimbursement Amount which is or
may be being deferred or delayed. In connection with a potential election
by the applicable Master Servicer, Special Servicer or Trustee to abstain
from the reimbursement of a particular Nonrecoverable Advance or portion
thereof during the Collection Period for any Distribution Date, the
applicable Master Servicer (or the applicable Special Servicer or the
Trustee, as applicable) shall further be authorized to wait for principal
collections to be received before making its determination of whether to
abstain from the reimbursement of a particular Nonrecoverable Advance or
portion thereof until the end of the Collection Period. Notwithstanding
the foregoing, the applicable Master Servicer (or the applicable Special
Servicer or the Trustee, as applicable) may defer the above reimbursement
for no more than 6 Collection Periods without the consent of the Operating
Adviser and, in any event, 12 Collection Periods in the aggregate. If the
applicable Master Servicer (or the applicable Special Servicer or the
Trustee, as applicable), determines, in its sole discretion, that its
ability to fully recover the Nonrecoverable Advances has been compromised,
then the applicable Master Servicer (or the applicable Special Servicer or
the Trustee, as applicable) will be entitled to immediate reimbursement of
such Nonrecoverable Advance plus interest thereon at the Advance Rate. The
agreement of the applicable Master Servicer (or the applicable Special
Servicer or the Trustee, as applicable) to defer reimbursement of such
Nonrecoverable Advances shall not be construed as an obligation on the
part of such applicable Master Servicer (or the applicable Special
Servicer or the Trustee, as applicable), or a right of the
Certificateholders. No such deferment shall be deemed to create in the
Certificateholders a right to prior payment of distributions over such
Master Servicer's, Special Servicer's or the Trustee's right to
reimbursement for Advances. Deferred Advances shall continue to earn
interest at the Advance Rate. In all events the decision to defer
reimbursement or seek immediate reimbursement of Nonrecoverable Advances
shall be deemed to be in accordance with the Servicing Standard.
None of the Master Servicers, the Special Servicers or the Trustee
shall have any liability whatsoever for making an election, or refraining from
making an election, that is authorized under this subsection (II)(iv). The
foregoing shall not, however, be construed to limit any liability that may
otherwise be imposed on such Person for any failure by such Person to comply
with the conditions to making such an election under this subsection (II)(iv) or
to comply with the terms of this subsection (II)(iv) and the other provisions of
this Agreement that apply once such an election, if any, has been made.
Any election by a Master Servicer (or the applicable Special
Servicer or the Trustee, as applicable) to abstain from reimbursing itself for
any Nonrecoverable Advance (and Advance Interest thereon) or portion thereof
with respect to any Collection Period shall not be construed to impose on such
Master Servicer (or the applicable Special Servicer or the Trustee, as
applicable) any obligation to make such an election (or any entitlement in favor
of any Certificateholder or any other Person to such an election) with respect
to any subsequent Collection Period or to constitute a waiver or limitation on
the right of such Master Servicer (or the applicable Special Servicer or the
Trustee, as applicable) to otherwise be reimbursed for such Nonrecoverable
Advance (and Advance Interest thereon). Any election by a Master Servicer, a
Special Servicer or the Trustee to abstain from reimbursing itself for any
Nonrecoverable Advance or portion thereof with respect to any one or more
Collection Periods shall not limit the accrual of Advance Interest on the
unreimbursed portion of such Nonrecoverable Advance for the period prior to the
actual reimbursement of such Nonrecoverable Advance. None of the Master
Servicers, the Special Servicers, the Trustee or the other parties to this
Agreement shall have any liability to one another or to any of the
Certificateholders for any such election that such party makes as contemplated
by this subsection or for any losses, damages or other adverse economic or other
effects that may arise from such an election. The foregoing statements in this
paragraph shall not limit the generality of the statements made in the
immediately preceding paragraph. Notwithstanding the foregoing, none of the
Master Servicers, the Special Servicers or the Trustee shall have the right to
abstain from reimbursing itself for any Nonrecoverable Advance to the extent of
the amount described in clause (I)(A) of the definition of Principal
Distribution Amount.
To the extent that amounts in the Certificate Account allocable to
principal are not sufficient to fully reimburse any Nonrecoverable Advance (with
interest thereon) in any Collection Period and a Master Servicer, a Special
Servicer or the Trustee, as applicable, does not intend to exercise its sole
discretion to defer the reimbursement of such amounts to a subsequent Collection
Period, then the applicable Special Servicer, the applicable Master Servicer or
the Trustee, as applicable, shall give the Rating Agencies at least 15 days
notice prior to any reimbursement to it of Nonrecoverable Advances from amounts
in the Certificate Account allocable to interest on the Mortgage Loans unless
(1) the applicable Special Servicer, the applicable Master Servicer or the
Trustee, as applicable, determines in its sole discretion that waiting 15 days
after such a notice could jeopardize such Special Servicer's, such Master
Servicer's or the Trustee's, as applicable, ability to recover such
Nonrecoverable Advances, (2) changed circumstances or new or different
information becomes known to the applicable Special Servicer, the applicable
Master Servicer or the Trustee, as applicable, that could affect or cause a
determination of whether any Advance is a Nonrecoverable Advance, whether to
defer reimbursement of a Nonrecoverable Advance or the determination in clause
(1) above, or (3) the applicable Special Servicer or the applicable Master
Servicer, as applicable, has not timely received from the Trustee information
requested by the applicable Special Servicer or the applicable Master Servicer,
as applicable, to consider in determining whether to defer reimbursement of a
Nonrecoverable Advance; provided that, if clause (1), (2) or (3) apply, the
applicable Special Servicer, the applicable Master Servicer or the Trustee, as
applicable, shall give Rating Agencies notice of an anticipated reimbursement to
it of Nonrecoverable Advances from amounts in the Certificate Account allocable
to interest on the Mortgage Loans as soon as reasonably practicable in such
circumstances.
(v) Reimbursement Rights of the Master Servicers, Special Servicers
and Trustee Are Senior: Nothing in this Agreement shall be deemed to
create in any Certificateholder a right to prior payment of distributions
over the applicable Master Servicer's, the applicable Special Servicer's
or the Trustee's right to reimbursement for Advances plus Advance Interest
(whether those that constitute Workout-Delayed Reimbursement Amounts,
those that have been the subject of the Master Servicer's election
authorized in subsection (iv) or otherwise).
(b) Scheduled Payments due in a Collection Period succeeding the
Collection Period relating to such Master Servicer Remittance Date, Principal
Prepayments received after the related Collection Period, or other amounts not
distributable on the related Distribution Date, shall be held in the applicable
Certificate Account (or sub-account thereof) and shall be distributed on the
Master Servicer Remittance Date or Dates to which such succeeding Collection
Period or Periods relate; provided, however, that as to (i) the Mortgage Loans
set forth on Schedule XII, for which a Scheduled Payment (including any Balloon
Payment) is due in a month on a Due Date (including any grace period) that is
scheduled to occur after the end of the Collection Period in such month, sums
received by the applicable Master Servicer with respect to such Scheduled
Payment but after the end of such Collection Period shall be applied by such
Master Servicer to reimburse any related P&I Advance made pursuant to Section
5.1(h), and such Master Servicer shall remit to the Distribution Account on any
Master Servicer Remittance Date for a Collection Period any such Scheduled
Payments (including any Balloon Payments) received after the end of such
Collection Period but no later than the Business Day immediately preceding such
Master Servicer Remittance Date on such Mortgage Loans set forth on Schedule
XII, and (ii) the Mortgage Loans set forth on Schedule XIII, for which a
voluntary Principal Prepayment is permitted on any day of the month without the
payment of a full month's interest, the applicable Master Servicer with respect
to such Principal Prepayment shall remit to the Trustee for deposit into the
Distribution Account on any Master Servicer Remittance Date for a Collection
Period any Principal Prepayments received after the end of such Collection
Period but no later than the Business Day immediately preceding such Master
Servicer Remittance Date on such Mortgage Loans set forth on Schedule XIII. In
connection with the deposit of any Scheduled Payments and Principal Prepayments
to the Distribution Account in accordance with the immediately preceding
sentence, the applicable Master Servicer shall promptly notify the Paying Agent
and the Paying Agent shall, if it has already reported anticipated distributions
to the Depository, use commercially reasonable efforts to cause the Depository
to make the revised distribution on a timely basis on such Distribution Date.
Neither the applicable Master Servicer nor the Paying Agent nor the Trustee
shall be liable or held responsible for any resulting delay or failure or any
claims or costs incurred in the making of such distribution to
Certificateholders. For purposes of the definition of "Available Distribution
Amount" and "Principal Distribution Amount," the Scheduled Payments and
Principal Prepayments referred to in the preceding proviso shall be deemed to
have been collected in the prior Collection Period.
(c) On each Master Servicer Remittance Date in March of every year
commencing in March 2006, each Master Servicer shall withdraw all related
amounts then in the applicable Interest Reserve Accounts and deposit such
amounts into the Distribution Account.
Section 5.3 Distribution Account, Excess Interest Sub-account,
Reserve Account and Floating Rate Account
(a) The Paying Agent, on behalf of the Trustee shall establish (with
respect to clause (i), on or prior to the Closing Date, and with respect to
clause (ii), on or prior to the date the Paying Agent determines is necessary)
and maintain in its name, on behalf of the Trustee, (i) an account (the
"Distribution Account"), which shall include a certain sub-account (the "Excess
Interest Sub-account") to be held in trust for the benefit of the Holders until
disbursed pursuant to the terms of this Agreement, titled: "Xxxxx Fargo Bank,
N.A., as Trustee, in trust for the benefit of the Holders of Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-IQ10,
Distribution Account" and (ii) an account (the "Reserve Account") to be held in
trust for the benefit of the holders of interests in the Trust until disbursed
pursuant to the terms of this Agreement, titled: "Xxxxx Fargo Bank, N.A., as
Trustee, in trust for the benefit of the Holders of Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-IQ10, Reserve
Account." The Distribution Account and the Reserve Account shall be Eligible
Accounts. Funds in the Reserve Account shall not be invested. The Distribution
Account and the Reserve Account shall be held separate and apart from and shall
not be commingled with any other monies including, without limitation, other
monies of the Paying Agent held under this Agreement. The Excess Interest
Sub-account and the Reserve Account shall be deemed sub-accounts of the
Distribution Account.
Funds in the Distribution Account may be invested and, if invested,
shall be invested by, and at the risk of, the Paying Agent in Eligible
Investments selected by the Paying Agent which shall mature, unless payable on
demand, not later than such time on the Distribution Date which will allow the
Paying Agent to make withdrawals from the Distribution Account under Section
5.3(b), and any such Eligible Investment shall not be sold or disposed of prior
to its maturity unless payable on demand. All such Eligible Investments shall be
made in the name of "Xxxxx Fargo Bank, N.A., as Trustee in trust for the benefit
of the Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-IQ10." None of the Depositor, the
Mortgagors, the Special Servicers, the Master Servicers, the Primary Servicers
or the Trustee shall be liable for any loss incurred on such Eligible
Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the Paying Agent as additional compensation and
shall be subject to its withdrawal at any time from time to time. The amount of
any losses incurred in respect of any such investments shall be for the account
of the Paying Agent which shall deposit the amount of such loss (to the extent
not offset by income from other investments) in the Distribution Account, as the
case may be, out of its own funds immediately as realized. If the Paying Agent
deposits in or transfers to the Distribution Account, as the case may be, any
amount not required to be deposited therein or transferred thereto, it may at
any time withdraw such amount or retransfer such amount from the Distribution
Account, as the case may be, notwithstanding any provision herein to the
contrary.
(b) Except as set forth in the next succeeding sentences, the Paying
Agent shall deposit into the Distribution Account or the Reserve Account, as
applicable, on the Business Day received, all moneys remitted by the Master
Servicers pursuant to this Agreement, including P&I Advances made by the Master
Servicers and the Trustee, other than Excess Liquidation Proceeds, into the
Distribution Account and all Excess Liquidation Proceeds into the Reserve
Account. The Paying Agent shall deposit amounts constituting collections of
Excess Interest on the Mortgage Loans and Additional L-3 Interest into the
Excess Interest Sub-account. Subject to Section 5.1(h), on any Master Servicer
Remittance Date, none of the Master Servicers shall have any duty to remit to
the Distribution Account any amounts other than amounts held in the applicable
Certificate Accounts and collected during the related Collection Period as
provided in clauses (v) and (xi) of Section 5.2(a) and the P&I Advance Amount,
and, on the Master Servicer Remittance Date occurring in March of any year,
commencing in March 2006, related amounts held in the applicable Interest
Reserve Accounts. The Paying Agent shall make withdrawals from the Distribution
Account (including the Excess Interest Sub-account) and the Reserve Account only
for the following purposes:
(i) to withdraw amounts deposited in the Distribution Account in
error and pay such amounts to the Persons entitled thereto;
(ii) to pay any amounts payable to the Master Servicers, the Primary
Servicers, the Special Servicers and the Trustee (including the Trustee's
Fee), or other expenses or other amounts permitted to be paid hereunder
and not previously paid to such Persons pursuant to Section 5.2;
(iii) to make distributions to the Certificateholders pursuant to
Sections 6.5 and 6.11, to make distributions to the Class A-3-1FL Grantor
Trust in respect of the Class A-3-1FL Regular Interest; and
(iv) to clear and terminate the Distribution Account pursuant to
Section 10.2.
(c) On or before the Closing Date, the Paying Agent shall establish
and maintain the Floating Rate Account for the benefit of the Class A-3-1FL
Certificateholders, which may be a sub-account of the Distribution Account. The
Floating Rate Account shall (i) at all times be an Eligible Account, (ii) be
entitled: "Xxxxx Fargo Bank, N.A., as Trustee, in trust for Holders of the
Xxxxxx Xxxxxxx Capital I Trust 2005-IQ10, Floating Rate Account, Class A-3-1FL"
and (iii) relate solely to the Class A-3-1FL Certificates, and the Paying Agent
shall have the exclusive right to withdraw funds therefrom. The Paying Agent
shall deposit into the Floating Rate Account on or prior to each Distribution
Date an amount equal to those amounts payable under the related Class A-3-1FL
Regular Interest (net of any payments to the Swap Counterparty made pursuant to
Section 8.30(b) hereof) pursuant to Article VI hereof and shall deposit into the
Floating Rate Account all amounts received on the Swap Contract in respect of
such Distribution Date. Amounts in the Floating Rate Account shall be held
uninvested. The Paying Agent shall make withdrawals from the Floating Rate
Account under its control in the following order of priority and only for the
following purposes:
(i) to withdraw amounts deposited in the Floating Rate Account in
error and pay such amounts to the Persons entitled thereto;
(ii) to make any payments to the Swap Counterparty in accordance
with this Agreement and the applicable Swap Contract;
(iii) to make distributions to the Holders of the Class A-3-1FL
Certificates pursuant to Section 6.12;
(iv) to withdraw termination payments to purchase a replacement Swap
Contract, if applicable;
(v) to pay the costs and expenses incurred by the Trustee in
connection with enforcing the rights of the Trust under the Swap Contract;
provided that the Trustee shall only be permitted to incur and reimburse
itself out of the Floating Rate Account with respect to any such costs and
expenses which are in excess of any termination payment received from the
Swap Counterparty and not otherwise applied to offset the expense of
entering into a replacement Swap Contract if it has received either the
written consent of 100% of the holders of the affected Class A-3-1FL
Certificates or the written confirmation of each Rating Agency then rating
such Class A-3-1F Certificates that such action or event will not result
in the reduction, qualification or withdrawal of its then current rating
for such Class A-3-1FL Certificates (the expense of such confirmation to
be borne by the holders of the Class A-3-1FL Certificates); and
(vi) to clear and terminate the Floating Rate Account pursuant to
Section 9.1.
(d) On or before 3:00 p.m. New York time on each Master Servicer
Remittance Date, the Paying Agent shall pay all amounts due to the Swap
Counterparty pursuant to the Swap Contract.
Section 5.4 Paying Agent Reports
(a) On or prior to each Distribution Date, based on information
provided in monthly reports prepared by the Master Servicers and the Special
Servicers and delivered to the Paying Agent by such Master Servicers (no later
than 2:00 p.m., New York City time on the Report Date), the Paying Agent shall
make available to any interested party via its internet website initially
located at "xxx.xxxxxxx.xxx" (the "Paying Agent's Website"), (i) the Monthly
Certificateholders Report (substantially in the form of Exhibit M), (ii) a
report containing information regarding the Mortgage Loans as of the end of the
related Collection Period, which report shall contain substantially the
categories of information regarding the Mortgage Loans set forth in Appendix I
to the Final Prospectus Supplement and shall be presented in tabular format
substantially similar to the format utilized in such Appendix I which report may
be included as part of the Monthly Certificateholders Report, (iii) the CMSA
Loan Periodic Update File, CMSA Loan Setup File, CMSA Bond Level File and the
CMSA Collateral Summary File, (iv) a CMSA Delinquent Loan Status Report, a CMSA
Historical Loan Modification and Corrected Mortgage Loan Report, a CMSA
Historical Liquidation Report, a CMSA Reconciliation of Funds Report, a CMSA REO
Status Report and an CMSA Loan Level Reserve/LOC Report, each containing
substantially the information contemplated in the definition of Unrestricted
Servicer Reports and (v) as a convenience for interested parties (and not in
furtherance of the distribution thereof under the securities laws), the Final
Prospectus Supplement and this Agreement.
In addition, on or prior to each Distribution Date, based on
information provided in monthly reports prepared by the Master Servicers and the
Special Servicers and delivered to the Paying Agent in accordance herewith, the
Paying Agent shall make available via the Paying Agent's Website, on a
restricted basis, the Restricted Servicer Reports (including the Property File
on or prior to each Distribution Date, commencing in December 2005). The Paying
Agent shall provide access to the Restricted Servicer Reports, upon request, to
each Certificateholder and any prospective Certificateholder or Certificate
Owner, each of the parties to this Agreement, each of the Rating Agencies, each
of the Underwriters, the Operating Adviser, the Placement Agent and any
Certificate Owner upon receipt (which may be in electronic form) from such
Person of an Investor Certificate in the form of Exhibit Y, and any other Person
upon the direction of the Depositor, any Placement Agent or any Underwriter. For
assistance with the above-mentioned Paying Agent services, Certificateholders or
any party hereto may initially call 000-000-0000.
The Paying Agent makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on the Paying Agent's Website and assumes no responsibility therefor.
The Paying Agent shall be entitled to conclusively rely on any information
provided to it by the Master Servicers or the Special Servicers and shall have
no obligation to verify such information and the Paying Agent may disclaim
responsibility for any information distributed by the Paying Agent for which it
is not the original source. In connection with providing access to the Paying
Agent's Website, the Paying Agent, may require registration and the acceptance
of a disclaimer. None of any Master Servicer, any Special Servicer, any Primary
Servicer or the Paying Agent shall be liable for the dissemination of
information in accordance with this Agreement; provided that this sentence shall
not in any way limit the liability the Paying Agent may otherwise have in the
performance of its duties hereunder.
(b) Subject to Section 8.15, upon advance written request, if
required by federal regulation, of any Certificateholder that is a savings
association, bank, or insurance company, the Paying Agent shall provide (to the
extent in its possession) to each such Certificateholder such reports and access
to non privileged information and documentation regarding the Mortgage Loans and
the Certificates as such Certificateholder may reasonably deem necessary to
comply with applicable regulations of the Office of Thrift Supervision or
successor or other regulatory authorities with respect to investment in the
Certificates; provided that the Paying Agent shall be entitled to be reimbursed
by such Certificateholder for the Paying Agent's actual expenses incurred in
providing such reports and access.
(c) Upon written request, the Paying Agent shall send to each Person
who at any time during the calendar year was a Certificateholder of record,
customary information as the Paying Agent xxxxx xxx be necessary or desirable
for such Holders to prepare their federal income tax returns.
(d) Reserved.
(e) The Paying Agent shall afford the Rating Agencies, the
Depositor, the Master Servicers, the Special Servicers, the Primary Servicers,
the Trustee, the Operating Adviser, the Swap Counterparty, any
Certificateholder, prospective Certificate Owner or any Person reasonably
designated by any Placement Agent, or any Underwriter upon reasonable notice and
during normal business hours, reasonable access to all relevant, non-attorney
privileged records and documentation regarding the applicable Mortgage Loans,
REO Property and all other relevant matters relating to this Agreement, and
access to Responsible Officers of the Paying Agent.
(f) Copies (or computer diskettes or other digital or electronic
formats of such information if reasonably available in lieu of paper copies) of
any and all of the foregoing items of this Section 5.4 shall be made available
by the Paying Agent upon request; provided, however, that the Paying Agent shall
be permitted to require payment by the requesting party (other than the
Depositor, the Master Servicers, the Special Servicers, the Swap Counterparty,
the Trustee, the Operating Adviser, the Placement Agent or any Underwriter or
any Rating Agency) of a sum sufficient to cover the reasonable expenses actually
incurred by the Paying Agent of providing access or copies (including electronic
or digital copies) of any such information requested in accordance with the
preceding sentence.
(g) The Paying Agent shall make available at its Corporate Trust
Office (either in physical or electronic form), during normal business hours,
upon reasonable advance written notice for review by any Certificateholder, any
Certificate Owner, any prospective Certificate Owner, any Placement Agent, the
Swap Counterparty, the Underwriters, each Rating Agency, the Special Servicers
and the Depositor, originals or copies of, among other things, the following
items: (i) the most recent property inspection reports in the possession of the
Trustee in respect of each Mortgaged Property and REO Property, (ii) the most
recent Mortgaged Property/REO Property annual operating statement and rent roll
(or in the case of a residential cooperative property, the most recent
maintenance schedule), if any, collected or otherwise obtained by or on behalf
of the Master Servicers or the Special Servicers and delivered to the Paying
Agent, and (iii) any Phase I Environmental Report or engineering report prepared
or appraisals performed in respect of each Mortgaged Property; provided,
however, that the Paying Agent shall be permitted to require payment by the
requesting party (other than either Rating Agency or the Operating Adviser) of a
sum sufficient to cover the reasonable expenses actually incurred by the Paying
Agent or the Trustee of providing access or copies (including electronic or
digital copies) of any such information reasonably requested in accordance with
the preceding sentence.
Section 5.5 Paying Agent Tax Reports
The Paying Agent shall perform all reporting and other tax
compliance duties that are the responsibility of each REMIC Pool, the Class
A-3-1FL Grantor Trust and the Class EI/Class EI-L3 Grantor Trust under the Code,
REMIC Provisions, or other compliance guidance issued by the Internal Revenue
Service or any state or local taxing authority, as applicable. Consistent with
this Pooling and Servicing Agreement, the Paying Agent shall provide or cause to
be provided (i) to the United States Department of Treasury or other Persons
(including, but not limited to, the Transferor of a Class R-I, Class R-II or
Class R-III Certificate, to a Disqualified Organization or to an agent that has
acquired a Class R-I, Class R-II or Class R-III Certificate on behalf of a
Disqualified Organization) such information as is necessary for the application
of any tax relating to the transfer of a Class R-I, Class R-II or Class R-III
Certificate to any Disqualified Organization and (ii) to the Certificateholders
such information or reports as are required by the Code or REMIC Provisions.
Each Master Servicer shall on a timely basis provide the Paying Agent with such
information concerning the Mortgage Loans as is necessary for the preparation of
the tax or information returns or receipts of each REMIC Pool, the Class A-3-1FL
Grantor Trust and the Class EI/Class EI-L3 Grantor Trust as the Paying Agent may
reasonably request from time to time. Each Special Servicer is required to
provide to the applicable Master Servicers all information in its possession
with respect to the Specially Serviced Mortgage Loans and REO Property in order
for such Master Servicers to comply with its obligations under this Section 5.5.
The Paying Agent shall be entitled to conclusively rely on any such information
provided to it by the Master Servicers or the Special Servicers and shall have
no obligation to verify any such information.
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally
Subject to Section 10.2(a), respecting the final distribution on the
Certificates, on each Distribution Date, the Paying Agent shall (1) first,
withdraw from the Distribution Account and pay to the Trustee any unpaid fees,
expenses and other amounts then required to be paid pursuant to this Agreement,
and then, to the Paying Agent, any unpaid fees, expenses and other amounts then
required to be paid pursuant to this Agreement, and then at the written
direction of each Master Servicer, withdraw from the Distribution Account and
pay to such Master Servicers, the Primary Servicers and the Special Servicers
any unpaid servicing compensation or other amounts currently required to be paid
pursuant to this Agreement (to the extent not previously retained or withdrawn
by the Master Servicers from the applicable Certificate Accounts), and (2)
second, make distributions in the manner and amounts set forth below.
Each distribution to Holders of Certificates shall be made by check
mailed to such Holder's address as it appears on the Certificate Register of the
Certificate Registrar or, upon written request to the Paying Agent on or prior
to the related Record Date (or upon standing instructions given to the Paying
Agent on the Closing Date prior to any Record Date, which instructions may be
revoked at any time thereafter upon written notice to the Paying Agent five days
prior to the related Record Date) made by a Certificateholder by wire transfer
in immediately available funds to an account specified in the request of such
Certificateholder; provided that (i) remittances to the Paying Agent shall be
made by wire transfer of immediately available funds to the Distribution Account
and the Reserve Account; and (ii) the final distribution in respect of any
Certificate shall be made only upon presentation and surrender of such
Certificate at such location specified by the Paying Agent in a notice delivered
to Certificateholders pursuant to Section 10.2(a). If any payment required to be
made on the Certificates is to be made on a day that is not a Business Day, then
such payment will be made on the next succeeding Business Day without
compensation for such delay. All distributions or allocations made with respect
to Holders of Certificates of a Class on each Distribution Date shall be made or
allocated among the outstanding Interests in such Class in proportion to their
respective initial Certificate Balances or Percentage Interests for the Class X
Certificates.
Section 6.2 REMIC I
On each Distribution Date, the Paying Agent shall be deemed to
distribute to itself on behalf of the Trustee, as holder of the REMIC I Regular
Interests, for the following purposes and in the following order of priority:
(i) from the portion of the Available Distribution Amount
attributable to interest collected or deemed collected on or with respect
to each Mortgage Loan or related REO Property, Distributable Certificate
Interest to each Corresponding REMIC I Regular Interest;
(ii) from the portion of the Available Distribution Amount,
attributable to principal collected or deemed collected on or with respect
to each Mortgage Loan or related REO Property, principal to the
Corresponding REMIC I Regular Interest (other than the Group X-Y REMIC I
Regular Interests), until the Certificate Balance thereof is reduced to
zero;
(iii) any remaining funds with respect to each Mortgage Loan or
related REO Property, to reimburse any Realized Losses previously
allocated to the REMIC I Regular Interests (other than the Group X-Y REMIC
I Regular Interests), plus interest on such Realized Losses at the related
REMIC I Net Mortgage Rate previously allocated thereto; and
(iv) thereafter, to the Class R-I Certificateholders, at such time
as the Certificate Balance of all Classes of REMIC I Regular Interests
have been reduced to zero, and Realized Losses previously allocated
thereto have been reimbursed to the Holders of the REMIC I Regular
Interests, any amounts remaining with respect to each Mortgage Loan or
related REO Property, to the extent of the Trust's interest therein.
Section 6.3 REMIC II
(a) On each Distribution Date, the Paying Agent shall be deemed to
distribute to itself on behalf of the Trustee, as holder of the REMIC II Regular
Interests, amounts distributable to any Class of Principal Balance Certificates
(or, in the case of the Class A-3-1FL Certificates, distributable to the Class
A-3-1FL Regular Interest) pursuant to Section 6.5 or Section 10.1 to its
Corresponding REMIC II Regular Interest set forth in the Preliminary Statement
hereto; provided that interest shall be deemed to have been distributed pro rata
among two or more Corresponding REMIC II Regular Interests that correspond to a
Class of Principal Balance Certificates (or, in the case of the Class A-3-1FL
Certificates, distributed to the Class A-3-1FL Regular Interest); and provided,
further, that distributions of principal:
(i) with respect to the Class A-1 Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest A-1-1; second, to REMIC II Regular Interest A-1-2; and
third to REMIC II Regular Interest A-1-3; in each case, until their
respective Certificate Balances are reduced to zero;
(ii) with respect to the Class A-1A Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest A-1A-1; second, to REMIC II Regular Interest A-1A-2;
third, to REMIC II Regular Interest A-1A-3; fourth, to REMIC II Regular
Interest A-1A-4; fifth, to REMIC II Regular Interest A-1A-5; sixth, to
REMIC II Regular Interest A-1A-6; seventh, to REMIC II Regular Interest
A-1A-7; eighth, to REMIC II Regular Interest A-1A-8 and ninth, to REMIC II
Regular Interest A-1A-9; in each case, until their respective Certificate
Balances are reduced to zero;
(iii) with respect to the Class A-2 Certificates, shall be deemed to
have been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest A-2, until its Certificate Balance is reduced to zero;
(iv) with respect to the Class A-3-1FL Regular Interest, shall be
deemed to have first been distributed from REMIC II to REMIC III in
respect of REMIC II Regular Interest A-3-1FL-1; second, to REMIC II
Regular Interest A-3-1FL-2; third, to REMIC II Regular Interest A-3-1FL-3
and fourth, to REMIC II Regular Interest A-3-1FL-4; in each case, until
their respective Certificate Balances are reduced to zero;
(v) with respect to the Class A-3-1 Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest A-3-1-1; second, to REMIC II Regular Interest A-3-1-2;
third, to REMIC II Regular Interest A-3-1-3 and fourth, to REMIC II
Regular Interest A-3-1-4; in each case, until their respective Certificate
Balances are reduced to zero;
(vi) with respect to the Class A-3-2 Certificates, shall be deemed
to have first been distributed from REMIC II to REMIC III in respect of
REMIC II Regular Interest A-3-2-1 and second, to REMIC II Regular Interest
A-3-2-2; in either case, until their respective Certificate Balances are
reduced to zero;
(vii) with respect to the Class A-AB Certificates, shall be deemed
to have first been distributed from REMIC II to REMIC III in respect to of
REMIC II Regular Interest A-AB-1 and second, to REMIC II Regular Interest
A-AB-2; in either case, until their respective Certificate Balances are
reduced to zero;
(viii) with respect to the Class A-4A Certificates, shall be deemed
to have first been distributed from REMIC II to REMIC III in respect of
REMIC II Regular Interest A-4A-1; second, to REMIC II Regular Interest
A-4A-2 and third, to REMIC II Regular Interest A-4A-3; in each case, until
their respective Certificate Balances are reduced to zero;
(ix) with respect to the Class A-4B Certificates, shall be deemed to
have been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest A-4B, until its Certificate Balance is reduced to zero;
(x) with respect to the Class B Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest B-1; second, to REMIC II Regular Interest B-2; and
third, to REMIC II Regular Interest B-3; in each case, until their
respective Certificate Balances are reduced to zero;
(xi) with respect to the Class C Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest C-1; and second, to REMIC II Regular Interest C-2; in
each case, until their respective Certificate Balances are reduced to
zero;
(xii) with respect to the Class D Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest D-1; second, to REMIC II Regular Interest D-2; and
third, to REMIC II Regular Interest D-3; in each case, until their
respective Certificate Balances are reduced to zero;
(xiii) with respect to the Class F Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest F-1; and second, to REMIC II Regular Interest F-2; in
each case, until their respective Certificate Balances are reduced to
zero;
(xiv) with respect to the Class G Certificates, shall be deemed to
have been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest G. until its Certificate Balance is reduced to zero; and
(xv) with respect to the Class H Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC
II Regular Interest H-1; and second, to REMIC II Regular Interest H-2; in
each case, until their respective Certificate Balances are reduced to
zero.
(b) All distributions made in respect of the Class X-1 and Class X-2
Certificates on each Distribution Date pursuant to Section 6.5 or Section 10.1,
and allocable to any particular Component of such Class of Certificates in
accordance with the last paragraph of Section 6.5(a), shall be deemed to have
first been distributed from REMIC II to REMIC III in respect of such Component's
Corresponding REMIC II Regular Interest. All distributions made in respect of
the Class X-Y Certificates on each Distribution Date pursuant to Section 6.5 or
Section 10.1 shall be deemed distributed to REMIC II Regular Interest X-Y. All
distributions of reimbursements of Realized Losses made in respect of any Class
of Principal Balance Certificates (or, in the case of the Class A-3-1FL
Certificates, in respect of the Class A-3-1FL Regular Interest) on each
Distribution Date pursuant to Section 6.5 shall be deemed to have first been
distributed from REMIC II to REMIC III in respect of its Corresponding REMIC II
Regular Interest set forth in the Preliminary Statement hereto; provided,
however, that distributions of reimbursements of Realized Losses shall be made
in reverse sequential order and priority as such as Realized Losses were
previously allocated to a particular Component of such Class of Certificates.
Any amounts remaining in the Distribution Account with respect to REMIC II on
any Distribution Date after the foregoing distributions shall be distributed to
the holders of the Class R-II Certificates.
Section 6.4 Reserved
Section 6.5 REMIC III
(a) On each Distribution Date, the Paying Agent shall withdraw from
the Distribution Account an amount equal to the Available Distribution Amount
and shall distribute such amount (other than the amount attributable to Excess
Liquidation Proceeds which shall be distributed in accordance with Section
6.5(b), the amount attributable to Excess Interest which shall be distributed in
accordance with Section 6.5(c), the amount attributable to Additional L-3
Interest which shall be distributed in accordance with Section 6.5(d) and the
amount equal to any Net Swap Payment that was deemed distributed in respect of
the Class A-3-1FL Regular Interest on the immediately preceding Master Servicer
Remittance Date pursuant to Section 8.30(b)) in the following amounts and order
of priority:
(i) to the Holders of the Class A-1 Certificates, Class A-1A
Certificates, Class A-2 Certificates, Class A-3-1FL Regular Interest,
Class A-3-1 Certificates, Class A-3-2 Certificates, Class A-AB
Certificates, Class A-4 Certificates, Class X-1 Certificates, Class X-2
Certificates and Class X-Y Certificates, concurrently,
(A) to the Holders of the Class A-1 Certificates, Class A-2
Certificates, Class A-3-1FL Regular Interest, Class A-3-1
Certificates, Class A-3-2 Certificates, Class A-AB Certificates and
Class A-4 Certificates, the Distributable Certificate Interest
Amount in respect of such Class for such Distribution Date (which
shall be payable from amounts in the Available Distribution Amount
attributable to Loan Group 1), pro rata in proportion to the
Distributable Certificate Interest Amount payable in respect of each
such Class; provided, that the interest distributed to the Holders
of the Class A-4 Certificates will be applied first to the Class
A-4A Certificates up to their Distributable Certificate Interest
Amount and then to the Class A-4B Certificates up to their
Distributable Certificate Interest Amount;
(B) to the Holders of the Class A-1A Certificates, the
Distributable Certificate Interest Amount in respect of such Class
for such Distribution Date (which shall be payable from amounts in
the Available Distribution Amount attributable to Loan Group 2);
(C) to the Holders of the Class X-1 Certificates, Class X-2
Certificates and Class X-Y Certificates, the Distributable
Certificate Interest Amount in respect of each such Class for such
Distribution Date, pro rata in proportion to the Distributable
Certificate Interest Amount payable in respect of each such Class;
provided, however, that if the portion of Available Distribution
Amount attributable to either Loan Group is insufficient to pay in
full the total amount of interest to be distributed with respect to
any of the Class A or Class X Certificates on such Distribution Date
as described above, the Available Distribution Amount will be
allocated among the Class A Certificates and the Class X
Certificates, pro rata in proportion to the respective amounts of
interest payable thereon for such Distribution Date, without regard
to Loan Group, provided that interest distributed to the Holders of
the Class A-4 Certificates will be applied first to the Class A 4A
Certificates up to their interest entitlement and then to the Class
A-4B Certificates up to their interest entitlement;
(ii) (A) to the holders of the Class A-1, Class A-1A, Class A-2,
Class A-3-1, Class A-3-2, Class A-AB and Class A-4 Certificates and the
Class A-3-1FL Regular Interest,
(1) first, to the Holders of the Class A-AB
Certificates, the Loan Group 1 Principal Distribution Amount
for such Distribution Date and, after the Certificate Balance
of the Class A-1A Certificates has been reduced to zero, the
Loan Group 2 Principal Distribution Amount for such
Distribution Date, until the aggregate Certificate Balance of
the Class A-AB Certificates has been reduced to the Planned
Principal Balance for such Distribution Date; the portion of
the Loan Group 2 Principal Distribution Amount distributed
hereunder will be reduced by any portion thereof distributed
to the Holders of the Class A-1A Certificates;
(2) second, upon payment to the Class A-AB Certificates
of the above distribution, to the Holders of the Class A-1
Certificates, the Loan Group 1 Principal Distribution Amount
for such Distribution Date and, after the Certificate Balance
of the Class A-1A Certificates has been reduced to zero, the
Loan Group 2 Principal Distribution Amount for such
Distribution Date, until the aggregate Certificate Balance of
the Class A-1 Certificates has been reduced to zero; the
portion of the Loan Group 1 Principal Distribution Amount and
Loan Group 2 Principal Distribution Amount distributed
hereunder will be reduced by any portion thereof distributed
to the Holders of the Class A-AB Certificates (in respect of
the Planned Principal Balance) and (solely with respect to the
Loan Group 2 Principal Distribution Amount) Class A-1A
Certificates;
(3) third, upon payment in full of the aggregate
Certificate Balance of the Class A-1 Certificates, to the
Holders of the Class A-2 Certificates, the Loan Group 1
Principal Distribution Amount for such Distribution Date and,
after the Certificate Balance of the Class A-1A Certificates
has been reduced to zero, the Loan Group 2 Principal
Distribution Amount, until the aggregate Certificate Balance
of the Class A-2 Certificates has been reduced to zero; the
portion of the Loan Group 1 Principal Distribution Amount and
Loan Group 2 Principal Distribution Amount distributed
hereunder will be reduced by any portion thereof distributed
to the Holders of the Class A-AB Certificates (in respect of
the Planned Principal Balance), Class A-1 Certificates and
(solely with respect to the Loan Group 2 Principal
Distribution Amount) Class A-1A Certificates;
(4) fourth, upon payment in full of the aggregate
Certificate Balance of the Class A-2 Certificates, to the
Holders of the Class A-3-1 Certificates and the Class A-3-1FL
Regular Interest, pro rata, the Loan Group 1 Principal
Distribution Amount for such Distribution Date and, after the
Certificate Balance of the Class A-1A Certificates has been
reduced to zero, the Loan Group 2 Principal Distribution
Amount, until the aggregate Certificate Balances of the Class
A-3-1 Certificates and the Class A-3-1FL Regular Interest have
been reduced to zero; the portion of the Loan Group 1
Principal Distribution Amount and Loan Group 2 Principal
Distribution Amount distributed hereunder will be reduced by
any portion thereof distributed to the Holders of the Class
A-AB Certificates (in respect of the Planned Principal
Balance), Class A-1 Certificates, Class A-2 Certificates and
(solely with respect to the Loan Group 2 Principal
Distribution Amount) Class A-1A Certificates;
(5) fifth, upon payment in full of the aggregate
Certificate Balances of the Class A-3-1 Certificates and the
Class A-3-1FL Regular Interest, to the Holders of the Class
A-3-2 Certificates, the Loan Group 1 Principal Distribution
Amount for such Distribution Date and, after the Certificate
Balance of the Class A-1A Certificates has been reduced to
zero, the Loan Group 2 Principal Distribution Amount, until
the aggregate Certificate Balance of the Class A-3-2
Certificates has been reduced to zero; the portion of the Loan
Group 1 Principal Distribution Amount and Loan Group 2
Principal Distribution Amount distributed hereunder will be
reduced by any portion thereof distributed to the Holders of
the Class A-AB Certificates (in respect of the Planned
Principal Balance), Class A-1 Certificates, Class A-2
Certificates, Class A-3-1 Certificates and the Class A-3-1FL
Regular Interest and (solely with respect to the Loan Group 2
Principal Distribution Amount) Class A-1A Certificates;
(6) sixth, upon payment in full of the aggregate
Certificate Balance of the Class A-3-2 Certificates, to the
Holders of the Class A-AB Certificates, the Loan Group 1
Principal Distribution Amount for such Distribution Date and,
after the Certificate Balance of the Class A-1A Certificates
has been reduced to zero, the Loan Group 2 Principal
Distribution Amount, until the aggregate Certificate Balance
of the Class A-AB Certificates has been reduced to zero; the
portion of the Loan Group 1 Principal Distribution Amount and
Loan Group 2 Principal Distribution Amount distributed
hereunder will be reduced by any portion thereof distributed
to the Holders of the Class A-AB Certificates (in respect of
the Planned Principal Balance), Class A-1 Certificates, Class
A-2 Certificates, Class A-3-1 Certificates, Class A-3-1FL
Regular Interest and Class A-3-2 Certificates and (solely with
respect to the Loan Group 2 Principal Distribution Amount)
Class A-1A Certificates;
(7) seventh, upon payment in full of the aggregate
Certificate Balance of the Class A-AB Certificates, to the
Holders of the Class A-4A Certificates, the Loan Group 1
Principal Distribution Amount for such Distribution Date and,
after the Certificate Balance of the Class A-1A Certificates
has been reduced to zero, the Loan Group 2 Principal
Distribution Amount, until the aggregate Certificate Balance
of the Class A-4A Certificates has been reduced to zero; the
portion of the Loan Group 1 Principal Distribution Amount and
Loan Group 2 Principal Distribution Amount distributed
hereunder will be reduced by any portion thereof distributed
to the Holders of the Class A-AB Certificates, Class A-1
Certificates, Class A-2 Certificates, Class A-3-1
Certificates, Class A-3-1FL Regular Interest and Class A-3-2
Certificates and (solely with respect to the Loan Group 2
Principal Distribution Amount) Class A-1A Certificates;
(8) eighth, upon payment in full of the aggregate
Certificate Balance of the Class A-4A Certificates, to the
Holders of the Class A-4B Certificates, the Loan Group 1
Principal Distribution Amount for such Distribution Date and,
after the Certificate Balance of the Class A-1A Certificates
has been reduced to zero, the Loan Group 2 Principal
Distribution Amount, until the aggregate Certificate Balance
of the Class A-4B Certificates has been reduced to zero; the
portion of the Loan Group 1 Principal Distribution Amount and
Loan Group 2 Principal Distribution Amount distributed
hereunder will be reduced by any portion thereof distributed
to the Holders of the Class A-AB Certificates, Class A-1
Certificates, Class A-2 Certificates, Class A-3-1
Certificates, Class A-3-1FL Regular Interest, Class A-3-2
Certificates and Class A-4A Certificates and (solely with
respect to the Loan Group 2 Principal Distribution Amount)
Class A-1A Certificates; and
(B) to the Holders of the Class A-1A Certificates, the Loan
Group 2 Principal Distribution Amount for such Distribution Date
and, after the Certificate Balance of the Class A-4B Certificates
has been reduced to zero, the Loan Group 1 Principal Distribution
Amount for such Distribution Date, until the aggregate Certificate
Balance of the Class A-1A Certificates has been reduced to zero; the
portion of the Loan Group 1 Principal Distribution Amount will be
reduced by any portion thereof distributed to the Holders of the
Class A-AB Certificates, Class A-1 Certificates, Class A-2
Certificates, Class A-3-1 Certificates, Class A-3-1FL Regular
Interest, Class A-3-2 Certificates, Class A-4A Certificates and
Class A-4B Certificates;
(iii) to the Holders of the Class A Certificates (other than the
Class A-3-1FL Certificates), Class X-1 Certificates, Class X-2
Certificates, Class X-Y Certificates and Class A-3-1FL Regular Interest,
pro rata (treating principal and interest losses separately) in proportion
to their respective entitlements to reimbursement described in this
clause, to reimburse any Realized Losses previously allocated thereto and
not previously fully reimbursed, plus one month's interest at the
applicable Pass-Through Rate on such Realized Losses; provided, that such
amounts in respect of the Class A-4 Certificates will be allocated first
to the Class A-4A Certificates until such Realized Losses previously
allocated thereto are reimbursed together with all applicable interest at
the applicable Pass-Through Rate and then to the Class A-4B Certificates
until such Realized Losses previously allocated thereto are reimbursed
together with all applicable interest at the applicable Pass-Through Rate;
(iv) to the Holders of the Class A-J Certificates, Distributable
Certificate Interest for such Distribution Date;
(v) upon payment in full of the Certificate Balance of the Class A
Certificates (other than the Class A-3-1FL Certificates) and the Class
A-3-1FL Regular Interest, to the Holders of the Class A-J Certificates,
the Principal Distribution Amount for such Distribution Date (reduced by
any prior distributions thereof hereunder), until the Certificate Balance
of the Class A-J Certificates has been reduced to zero;
(vi) to the Holders of the Class A-J Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(vii) to the Holders of the Class B Certificates, Distributable
Certificate Interest for such Distribution Date,
(viii) upon payment in full of the Certificate Balance of the Class
A-J Certificates, to the Holders of the Class B Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions to Holders of Class A Certificates (other than the
Class A-3-1FL Certificates), the Class A-3-1FL Regular Interest and Class
A-J Certificates hereunder), until the Certificate Balance of the Class B
Certificates has been reduced to zero,
(ix) to the Holders of the Class B Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses
(x) to the Holders of the Class C Certificates, Distributable
Certificate Interest for such Distribution Date,
(xi) upon payment in full of the Certificate Balance of the Class B
Certificates, to the Holders of the Class C Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Certificates (other than Class A-3-1FL
Certificates), the Class A-3-1FL Regular Interest, Class A-J Certificates
and Class B Certificates hereunder), until the Certificate Balance of the
Class C Certificates has been reduced to zero,
(xii) to the Holders of the Class C Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses,
(xiii) to the Holders of the Class D Certificates, Distributable
Certificate Interest for such Distribution Date,
(xiv) upon payment in full of the Certificate Balance of the Class C
Certificates, to the Holders of the Class D Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Certificates (other than Class A-3-1FL
Certificates), the Class A-3-1FL Regular Interest, Class A-J Certificates,
Class B Certificates and Class C Certificates hereunder), until the
Certificate Balance of the Class D Certificates has been reduced to zero,
(xv) to the Holders of the Class D Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses,
(xvi) to the Holders of the Class E Certificates, Distributable
Certificate Interest for such Distribution Date
(xvii) upon payment in full of the Certificate Balance of the Class
D Certificates, to the Holders of the Class E Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Certificates (other than Class A-3-1FL
Certificates), the Class A-3-1FL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates and Class D Certificates
hereunder), until the Certificate Balance of the Class E Certificates has
been reduced to zero,
(xviii) to the Holders of the Class E Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses,
(xix) to the Holders of the Class F Certificates, Distributable
Certificate Interest for such Distribution Date,
(xx) upon payment in full of the Certificate Balance of the Class E
Certificates, to the Holders of the Class F Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Certificates (other than Class A-3-1FL
Certificates), the Class A-3-1FL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates and Class
E Certificates hereunder), until the Certificate Balance of the Class F
Certificates has been reduced to zero,
(xxi) to the Holders of the Class F Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses,
(xxii) to the Holders of the Class G Certificates, Distributable
Certificate Interest for such Distribution Date,
(xxiii) upon payment in full of the Certificate Balance of the Class
F Certificates, to the Holders of the Class G Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Certificates (other than Class A-3-1FL
Certificates), the Class A-3-1FL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates and Class F Certificates hereunder), until the Certificate
Balance of the Class G Certificates has been reduced to zero,
(xxiv) to the Holders of the Class G Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses,
(xxv) to the Holders of the Class H Certificates, Distributable
Certificate Interest for such Distribution Date,
(xxvi) upon payment in full of the Certificate Balance of the Class
G Certificates, to the Holders of the Class H Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Certificates (other than Class A-3-1FL
Certificates), the Class A-3-1FL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates and Class G Certificates hereunder),
until the Certificate Balance of the Class H Certificates has been reduced
to zero,
(xxvii) to the Holders of the Class H Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses,
(xxviii) to the Holders of the Class J Certificates, Distributable
Certificate Interest for such Distribution Date,
(xxix) upon payment in full of the Certificate Balance of the Class
H Certificates, to the Holders of the Class J Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Certificates (other than Class A-3-1FL
Certificates), the Class A-3-1FL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates and Class H
Certificates hereunder), until the Certificate Balance of the Class J
Certificates has been reduced to zero,
(xxx) to the Holders of the Class J Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses,
(xxxi) to the Holders of the Class K Certificates, Distributable
Certificate Interest for such Distribution Date,
(xxxii) upon payment in full of the Certificate Balance of the Class
J Certificates, to the Holders of the Class K Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Certificates (other than Class A-3-1FL
Certificates), the Class A-3-1FL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates and Class J Certificates hereunder), until the Certificate
Balance of the Class K Certificates has been reduced to zero,
(xxxiii) to the Holders of the Class K Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses,
(xxxiv) to the Holders of the Class L Certificates, Distributable
Certificate Interest for such Distribution Date,
(xxxv) upon payment in full of the Certificate Balance of the Class
K Certificates, to the Holders of the Class L Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Certificates (other than Class A-3-1FL
Certificates), the Class A-3-1FL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates and Class K Certificates hereunder),
until the Certificate Balance of the Class L Certificates has been reduced
to zero,
(xxxvi) to the Holders of the Class L Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses,
(xxxvii) to the Holders of the Class M Certificates, Distributable
Certificate Interest for such Distribution Date,
(xxxviii) upon payment in full of the Certificate Balance of the
Class L Certificates, to the Holders of the Class M Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions to Holders of Class A Certificates (other than Class
A-3-1FL Certificates), the Class A-3-1FL Regular Interest, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates, Class K
Certificates and Class L Certificates hereunder), until the Certificate
Balance of the Class M Certificates has been reduced to zero,
(xxxix) to the Holders of the Class M Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses,
(xl) to the Holders of the Class N Certificates, Distributable
Certificate Interest for such Distribution Date,
(xli) upon payment in full of the Certificate Balance of the Class M
Certificates, to the Holders of the Class N Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Certificates (other than Class A-3-1FL
Certificates), the Class A-3-1FL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates and Class M Certificates hereunder), until the Certificate
Balance of the Class N Certificates has been reduced to zero,
(xlii) to the Holders of the Class N Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses,
(xliii) to the Holders of the Class O Certificates, Distributable
Certificate Interest for such Distribution Date,
(xliv) upon payment in full of the Certificate Balance of the Class
N Certificates, to the Holders of the Class O Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Certificates (other than Class A-3-1FL
Certificates), the Class A-3-1FL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates and Class N Certificates hereunder),
until the Certificate Balance of the Class O Certificates has been reduced
to zero,
(xlv) to the Holders of the Class O Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses,
(xlvi) to the Holders of the Class P Certificates, Distributable
Certificate Interest for such Distribution Date,
(xlvii) upon payment in full of the Certificate Balance of the Class
O Certificates, to the Holders of the Class P Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Certificates (other than Class A-3-1FL
Certificates), the Class A-3-1FL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates,Class N Certificates and Class O
Certificates hereunder), until the Certificate Balance of the Class P
Certificates has been reduced to zero,
(xlviii) to the Holders of the Class P Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses, and
(xlix) to the Holders of the Class R-III Certificates at such time
as the Certificate Balances of all Classes of REMIC Regular Certificates
and the Class A-3-1FL Regular Interest have been reduced to zero, and
Realized Losses previously allocated to each Holder have been reimbursed
to the Holders of the REMIC Regular Certificates and the Class A-3-1FL
Regular Interest, any amounts remaining on deposit in the Distribution
Account.
Notwithstanding the foregoing, on each Distribution Date occurring
on or after the earliest date, if any, upon which the Certificate Balances of
all the Classes of Subordinate Certificates have been reduced to zero or the
aggregate Appraisal Reduction in effect is greater than or equal to Certificate
Balances of all the Classes of Subordinate Certificates, the Principal
Distribution Amount will be distributed,
o first, to the Holders of the Class A-1, Class A-1A, Class A-2, Class
A-3-1, Class A-3-2, Class A-AB and Class A-4 Certificates and the Class
A-3-1FL Regular Interest, pro rata, based on their respective Certificate
Balances, in reduction of their respective Certificate Balances, until the
Certificate Balance of each such Class is reduced to zero, provided that
Principal Distribution Amounts distributed to the Holders of the Class A-4
Certificates will be applied first to the Class A-4A Certificates until
the aggregate Certificate Balance of such Class is reduced to zero and
then to the Class A-4B Certificates until the aggregate Certificate
Balance of such Class is reduced to zero; and
o second, to the Holders of the Class A-1, Class A-1A, Class A-2, Class
A-3-1, Class A-3-2, Class A-AB and Class A-4 Certificates and the Class
A-3-1FL Regular Interest, pro rata, based on the respective amounts of
unreimbursed Realized Losses previously allocated to each such Class, plus
one month's interest on such Realized Losses at the applicable
Pass-Through Rate, provided that such amounts with respect to the Class
A-4 Certificates will be allocated first to the Class A-4A Certificates
until such unreimbursed losses are reimbursed, together with interest at
the applicable Pass-Through Rate, and then to the Class A-4B Certificates
until such unreimbursed losses are reimbursed, together with interest at
the applicable Pass-Through Rate.
Such distribution of the Principal Distribution Amount to the
Holders of the Class A-1 Certificates, Class A-1A Certificates, Class A-2
Certificates, Class A-3-1FL Regular Interest, Class A-3-1 Certificates, Class
A-3-2 Certificates, Class A-AB Certificates, Class A-4A Certificates and Class
A-4B Certificates, respectively, shall be deemed to be made to REMIC II Regular
Interests A-1-1, A-1-2 and A-1-3, REMIC II Regular Interests X-0X-0, X-0X-0,
X-0X-0, X-0X-0, X-0X-0, X-0X-0, X-0X-0, X-0X-0, and A-1A-9, REMIC II Regular
Interest A-2, REMIC II Regular Interests X-0-0XX-0, X-0-0XX-0, X-0-0XX-0 and
A-3-1FL-4, REMIC II Regular Interests X-0-0-0, X-0-0-0, X-0-0-0 and A-3-1-4,
REMIC II Regular Interests A-3-2-1 and A-3-2-2, REMIC II Regular Interests
A-AB-1, and A-AB-2, REMIC II Regular Interests A-4A-1, A-4A-2 and A-4A-3 and
REMIC II Regular Interest A-4B, respectively, in the same order and priority as
the distributions described in Section 6.3(a).
(b) On each Distribution Date, following the above-described
distributions on the Principal Balance Certificates and the Class X-1
Certificates, Class X-2 Certificates and Class X-Y Certificates, the Paying
Agent shall withdraw amounts in the Reserve Account and shall pay the
Certificateholders on such Distribution Date such amounts in the following
priority:
(i) first, from amounts in the Reserve Account with respect to all
Mortgage Loans, to reimburse the Holders of the Class A Certificates
(other than the Class A-3-1FL Certificates), the Class A-3-1FL Regular
Interest and the Class X Certificates, pro rata, and then the remaining
amounts to reimburse the Principal Balance Certificates (other than the
Class A Certificates) (in order of alphabetical and numerical Class
designation) for any, and to the extent of, Realized Losses previously
allocated to them and not previously fully reimbursed, plus one month's
interest at the applicable Pass-Through Rate on such Realized Losses;
provided, that such amounts in respect of the Class A-4 Certificates will
be allocated first to the Class A-4A Certificates until such Realized
Losses previously allocated thereto are reimbursed together with all
applicable interest at the applicable Pass-Through Rate and then to the
Class A-4B Certificates until such Realized Losses previously allocated
thereto are reimbursed together with all applicable interest at the
applicable Pass-Through Rate; and
(ii) second, upon the reduction of the Aggregate Certificate Balance
of the Principal Balance Certificates (other than the Class A-3-1FL
Certificates) and the Class A-3-1FL Regular Interest to zero, to pay any
amounts remaining on deposit in such account to the Special Servicer as
additional Special Servicer Compensation.
Amounts reimbursed pursuant to Section 6.5(b)(i) shall be deemed to
be applied to reimbursement of Realized Losses previously allocated to the REMIC
II Regular Interests and the REMIC I Regular Interests in the reverse sequential
order and priority as such Realized Losses were applied thereto.
(c) On each Distribution Date, the Paying Agent shall withdraw from
the Excess Interest Sub-account any Excess Interest on deposit therein, and the
Paying Agent shall distribute such Excess Interest on such Distribution Date to
the Class EI Certificates.
(d) On each Distribution Date, the Paying Agent shall withdraw from
the Excess Interest Sub-account any Additional L-3 Interest on deposit therein,
and the Paying Agent shall distribute such Additional L-3 Interest on such
Distribution Date to the Class EI-L3 Certificates.
Section 6.6 Allocation of Realized Losses, Expense Losses and
Shortfalls Due to Nonrecoverability
(a) REMIC I. On each Distribution Date, except as provided in
subsection (b) below,
(i) Realized Principal Losses on each Mortgage Loan realized during
the related Collection Period shall reduce the Certificate Balance of the
Corresponding REMIC I Regular Interest;
(ii) Realized Interest Losses on each Mortgage Loan shall be
allocated to reduce first, Distributable Certificate Interest for such
Distribution Date, and then Unpaid Interest in each case owing on the
Corresponding REMIC I Regular Interests (and as between the related Group
X-Y REMIC I Regular Interest and Group PB REMIC I Regular Interest, pro
rata, based on Distributable Certificate Interest otherwise payable
thereon); and to the extent that such Realized Interest Loss exceeds such
amount, shall be treated as an Expense Loss; and
(iii) Expense Losses (not otherwise applied above) realized during
the related Collection Period shall be allocated among the REMIC I Regular
Interests in proportion to their Certificate Balances or Notional Amounts
(and, as between the related Group X-Y REMIC I Regular Interest and Group
PB REMIC I Regular Interest, in proportion to Distributable Certificate
Interest or Unpaid Interest, as applicable) after making all other
allocations for such Distribution Date.
(b) In the event that a Master Servicer, a Special Servicer or the
Trustee determines that an Advance previously made by it (whether such Advance
(together with Advance Interest thereon) was in respect of principal or interest
on the related Mortgage Loan or a Servicing Advance) is a Nonrecoverable Advance
and such Master Servicer withdraws the amount of such Advance from the
applicable Certificate Account pursuant to Section 5.2(a) hereof (which amount
shall be treated as an Available Advance Reimbursement Amount pursuant to
Section 4.6 or if the Master Servicer determines any Unliquidated Advance has
become a Nonrecoverable Advance), the applicable Master Servicer (after
consultation with the applicable Special Servicer) shall compute the Realized
Loss with respect to such Mortgage Loan (and the Paying Agent shall allocate the
Realized Loss) as follows:
(i) the amount withdrawn from the Certificate Account shall be
treated as Realized Principal Losses up to the amount of the aggregate
amount in the Certificate Account allocable to principal for such
Collection Period contemplated by clause (I)(A) of the definition of
Principal Distribution Amount, and shall be allocated to the Corresponding
REMIC I Regular Interest in accordance with Section 6.6(a)(i) (and to the
extent that any Realized Principal Loss exceeds the Certificate Balance of
the Corresponding REMIC I Regular Interest, such Realized Principal Loss
shall be allocated to the other Corresponding REMIC I Regular Interests in
accordance with Section 6.6(a)(iii)), and such withdrawal shall reduce the
principal paid on each such REMIC I Regular Interest on which principal
would otherwise be paid on such Distribution Date, in proportion to such
principal payments; and
(ii) if the amount that the applicable Master Servicer withdraws
from the Certificate Account as referenced in clause (b)(i) above exceeds
such amounts allocable to principal for such Collection Period, then such
additional amounts shall constitute Unpaid Interest, and shall be
allocated to the REMIC I Regular Interests on a pro rata basis based upon
the amount of accrued and unpaid interest thereon.
(c) At such time as a Final Recovery Determination is made with
respect to any Mortgage Loan with respect to which the applicable Master
Servicer previously had withdrawn amounts from the applicable Certificate
Account following a determination that Advances previously made were
Nonrecoverable Advances and Realized Losses were computed and allocated pursuant
to clauses (a) and (b) above, and amounts are recovered:
(i) the portion of the amount of collections recovered on the
Mortgage Loan that is identified and applied by the applicable Master
Servicer as recoveries of principal shall be applied first, to make
payments of principal on the Corresponding REMIC I Regular Interest up to
an amount equal to the Realized Principal Losses previously allocated
thereto as a result of the reimbursement of Nonrecoverable Advances or
Advance Interest (and the Principal Balance of the Mortgage Loan and the
related Certificate Balance of the Corresponding REMIC I Regular Interest
shall be correspondingly increased), and thereafter to make payments of
principal to the Corresponding REMIC I Regular Interests with respect to
which principal distributions were reduced pursuant to Section 6.6(b)(i)
above, in proportion to the amount of such reductions; and
(ii) the portion of the amount recovered on the Mortgage Loan that
is identified and applied by the Master Servicer as recoveries of interest
shall be applied to make payments of Unpaid Interest on the REMIC I
Regular Interests with respect to which Unpaid Interest was allocated
pursuant to Section 6.6(b)(ii).
(d) REMIC II. On each Distribution Date, all Realized Losses and
Expense Losses on the REMIC I Regular Interests for such Distribution Date (or
for prior Distribution Dates, to the extent not previously allocated) shall be
allocated to the REMIC II Regular Interests in the amounts and in the manner as
will be allocated to the Corresponding Certificates relating thereto pursuant to
Section 6.6(f)); provided, however, that Realized Losses and Expense Losses
allocated to REMIC II Regular Interests shall be allocated among the
Corresponding Components sequentially in alphabetical and numerical order.
Realized Interest Losses allocated to the Class X-1 and Class X-2 Certificates
shall reduce the amount of interest payable on the 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-1A-1, REMIC II Regular Interest A-1A-2, REMIC II Regular
Interest A-1A-3, REMIC II Regular Interest A-1A-4, REMIC II Regular Interest
A-1A-5, REMIC II Regular Interest A-1A-6, REMIC II Regular Interest A-1A-7,
REMIC II Regular Interest A-1A-8, REMIC II Regular Interest A-1A-9, REMIC II
Regular Interest A-2, REMIC II Regular Interest A-3-1FL-1, REMIC II Regular
Interest A-3-1FL-2, REMIC II Regular Interest A-3-1FL-3, REMIC II Regular
Interest A-3-1FL-4, REMIC II Regular Interest A-3-1-1, REMIC II Regular Interest
A-3-1-2, REMIC II Regular Interest A-3-1-3, REMIC II Regular Interest A-3-1-4,
REMIC II Regular Interest A-3-2-1, REMIC II Regular Interest A-3-2-2, REMIC II
Regular Interest A-AB-1, REMIC II Regular Interest A-AB-2, REMIC II Regular
Interest A-4A-1, REMIC II Regular Interest A-4A-2, REMIC II Regular Interest
A-4A-3, REMIC II Regular Interest A-4B, REMIC II Regular Interest A-J, REMIC II
Regular Interest B-1, REMIC II Regular Interest B-2, REMIC II Regular Interest
B-3, REMIC II Regular Interest C-1, REMIC II Regular Interest C-2, REMIC II
Regular Interest D-1, REMIC II Regular Interest D-2, REMIC II Regular Interest
E, REMIC II Regular Interest F-1, REMIC II Regular Interest F-2, REMIC II
Regular Interest G, REMIC II Regular Interest H-1, REMIC II Regular Interest
H-2, REMIC II Regular Interest J, REMIC II Regular Interest K, REMIC II Regular
Interest L, REMIC II Regular Interest M, REMIC II Regular Interest N, REMIC II
Regular Interest O and REMIC II Regular Interest P, which reduction shall be
allocated pro rata based on the product of the Certificate Balance of such REMIC
II Regular Interest and the sum of the Class X-1 Strip Rate and the Class X-2
Strip Rate (if any) applicable to the Corresponding Component relating to such
REMIC II Regular Interest.
(e) Reserved.
(f) REMIC III. On each Distribution Date, all Realized Losses on the
REMIC II Regular Interests for such Distribution Date (or for prior Distribution
Dates, to the extent not previously allocated) shall be allocated to the REMIC
III Regular Interests in Reverse Sequential Order, with such reductions being
allocated among the Class A-1, Class A-1A, Class A-2, Class A-3-1, Class A-3-2,
Class A-AB, Class A-4A and Class A-4B Certificates and the Class A-3-1FL Regular
Interest and, in the case of interest, Class X-1, Class X-2 and Class X-Y
Certificates, pro rata, in each case reducing (A) the Certificate Balance of
such Class until such Certificate Balance is reduced to zero (in the case of the
Class A Certificates, other than the Class A-3-1FL Certificates, and the Class
A-3-1FL Regular Interest); (B) Unpaid Interest owing to such Class to the extent
thereof; and (C) Distributable Certificate Interest owing to such Class,
provided that Realized Losses shall not reduce the Aggregate Certificate Balance
of the REMIC Regular Certificates and the Class A-3-1FL Regular Interest below
the sum of the Aggregate Certificate Balances of the REMIC II Regular Interests;
provided, further, that losses allocated to the Class A-4 Certificates will be
applied first to the Class A-4B Certificates until such Certificate Balance is
reduced to zero and then to the Class A-4A Certificates until such Certificate
Balance is reduced to zero.
Section 6.7 Net Aggregate Prepayment Interest Shortfalls
On each Distribution Date, any Net Aggregate Prepayment Interest
Shortfalls in the Mortgage Loans in REMIC I (other than any Specially Designated
Co-op Mortgage Loan) shall be allocated among the REMIC I Regular Interests, pro
rata in proportion to the Accrued Certificate Interest for each such REMIC I
Regular Interest for such Distribution Date (without taking into account any
Class X-Y Interest Amount) and shall reduce Distributable Certificate Interest
for each such Interest. On each Distribution Date, any such Net Aggregate
Prepayment Interest Shortfalls in the REMIC I Regular Interests held by REMIC II
shall be allocated among the REMIC II Regular Interests (other than REMIC II
Regular Interest X-Y), pro rata in proportion to the Accrued Certificate
Interest for each such REMIC II Regular Interest for such Distribution Date
(without taking into account any Class X-Y Interest Amount) and shall reduce
Distributable Certificate Interest for each such Interest. On each Distribution
Date, the amount of any such Net Aggregate Prepayment Interest Shortfalls on the
REMIC III Regular Interests shall be allocated to each Class of Certificates
(other than Class A-3-1FL Certificates and the Class X-Y Certificates) and the
Class A-3-1FL Regular Interest, pro rata, in proportion to the amount of Accrued
Certificate Interest payable to such Class of Certificates on such Distribution
Date (without taking into account any Class X-Y Interest Amount), in each case
reducing interest otherwise payable thereon. The amount of Net Aggregate
Prepayment Interest Shortfalls allocated to a Class of Certificates pursuant to
the preceding sentence shall reduce the Distributable Certificate Interest for
such Class for such Distribution Date (without taking into account any Accrued
Certificate Interest payable to the Holders of the Class X-Y Certificates on
such Distribution Date.) On each Distribution Date, any Net Aggregate Prepayment
Interest Shortfalls in respect of any Specially Designated Co-op Mortgage Loan
shall be allocated among the REMIC I Regular Interests, pro rata in proportion
to the Accrued Certificate Interest for each such REMIC I Regular Interest for
such Distribution Date and shall reduce Distributable Certificate Interest for
each such Interest. On each Distribution Date, any such Net Aggregate Prepayment
Interest Shortfalls in the REMIC I Regular Interests held by REMIC II shall be
allocated among the REMIC II Regular Interests, pro rata in proportion to the
Accrued Certificate Interest for each such REMIC II Regular Interest for such
Distribution Date and shall reduce Distributable Certificate Interest for each
such REMIC II Regular Interest. On each Distribution Date, any such Net
Aggregate Prepayment Interest Shortfalls in the REMIC III Regular Interests
shall be allocated among the REMIC III Regular Interests, pro rata in proportion
to the Accrued Certificate Interest for each such REMIC III Regular Interests
for such Distribution Date and shall reduce Distributable Certificate Interest
for each such REMIC III Regular Interest. No portion of any Net Aggregate
Prepayment Interest Shortfalls for any Distribution Date that is attributable to
a Mortgage Loan that is not a Specially Designated Co-op Mortgage Loan shall be
allocable to or reduce interest distributions on the Class X-Y Certificates. Any
amounts of Net Aggregate Prepayment Interest Shortfalls allocated to the Class
A-3-1FL Regular Interest shall reduce the amount of interest distributable to
the Class A-3-1FL Certificates by an equivalent amount.
Section 6.8 Adjustment of Servicing Fees
The Master Servicing Fee payable to each Master Servicer shall be
adjusted as provided in Section 8.10(c) herein. Any amount retained by REMIC I
as a result of a reduction of the Master Servicing Fee shall be treated as
interest collected with respect to the prepaid Mortgage Loans with respect to
which the Master Servicing Fee adjustment occurs.
Section 6.9 Appraisal Reductions
Not later than the date on which an Appraisal Event occurs, the
applicable Special Servicer shall have obtained (A) an Appraisal of the
Mortgaged Property securing the related Mortgage Loan if the Principal Balance
of such Mortgage Loan exceeds $2,000,000 or (B) at the option of the applicable
Special Servicer, if such Principal Balance is less than or equal to $2,000,000,
either an internal valuation prepared by such Special Servicer in accordance
with MAI standards (which internal valuation shall ascribe a value for any
residential cooperative property based on the value of such property as if
operated as a residential cooperative) or an Appraisal which in all cases shall
be completed as of the date that such Mortgage Loan becomes a Required Appraisal
Loan; provided that if the Special Servicer had completed or obtained an
Appraisal or internal valuation within the immediately prior 12 months, such
Special Servicer may rely on such Appraisal or internal valuation and shall have
no duty to prepare a new Appraisal or internal valuation, unless such reliance
would not be in accordance with the Servicing Standard; provided, further, that
if the Special Servicer is required to obtain an Appraisal of a Mortgaged
Property or prepare an internal valuation after receipt of the notice described
in clause (ii) of the definition of Appraisal Event, such Appraisal or internal
valuation will be obtained or prepared, as the case may be, no later than 60
days after receipt of such notice. With respect to each Mortgage Loan that is
cross-collateralized with any other Mortgage Loan, the Appraisal or internal
valuation need only be performed with respect to Mortgaged Properties that
constitute the principal security for the individual Mortgage Loan to which an
Appraisal Event occurs, and not with respect to all of the Mortgaged Properties
that constitute security for the individual Mortgage Loan in the
cross-collateralized group. Such Appraisal or valuation shall be conducted in
accordance with the definition of "market value" as set forth in 12 C.F.R. ss.
225.62 and shall be updated at least annually from the date of such Appraisal or
valuation, as applicable, to the extent such Mortgage Loan remains a Required
Appraisal Loan. The cost of any such Appraisal or valuation, if not performed by
the applicable Special Servicer, shall be an expense of the Trust and may be
paid from REO Income or, to the extent collections from such related Mortgage
Loan or Mortgaged Property does not cover the expense, such unpaid expense shall
be, subject to Section 4.4 hereof, advanced by the applicable Master Servicer at
the request of such Special Servicer pursuant to Section 4.6 in which event it
shall be treated as a Servicing Advance. The applicable Special Servicer shall
calculate any Appraisal Reduction. The applicable Master Servicer shall
recalculate the Appraisal Reduction for any Mortgage Loan based on the original
Appraisal or updated Appraisals or internal valuations provided from time to
time to it by the applicable Special Servicer and report such amount to the
Trustee. The applicable Special Servicer shall provide notice of any Appraisal
Event with respect to a Mortgage Loan to the applicable Master Servicer and the
Operating Adviser on the day of determination of such Appraisal Event.
Appraisal Reductions allocated to any Mortgage Loan shall be
allocated to the Certificate Principal Balance of the related Classes of
Principal Balance Certificates in the order of their subordination, i.e., in
Reverse Sequential Order.
Section 6.10 Compliance with Withholding Requirements
Notwithstanding any other provision of this Agreement to the
contrary, the Paying Agent on behalf of the Trustee shall comply with all
federal withholding requirements with respect to payments to Certificateholders
of interest, original issue discount, or other amounts that the Paying Agent
reasonably believes are applicable under the Code, giving effect to all
applicable exemptions from withholding as to which the recipient has furnished
the applicable and effective certification or other documentation. The consent
of Certificateholders shall not be required for any such withholding and any
amount so withheld shall be regarded as distributed to the related
Certificateholders for purposes of this Agreement. In the event the Paying Agent
withholds any amount from payments made to any Certificateholder pursuant to
federal withholding requirements, the Paying Agent shall indicate to such
Certificateholder the amount withheld. The Trustee shall not be responsible for
the Paying Agent's failure to comply with any withholding requirements.
Section 6.11 Prepayment Premiums and Yield Maintenance Charges
On any Distribution Date prior to and including the Distribution
Date on which the Certificate Balance of the Class A Senior Certificates has
been reduced to zero, Prepayment Premiums or Yield Maintenance Charges collected
with respect to a Mortgage Loan in a particular Loan Group during any particular
Collection Period will be distributed by the Paying Agent on the Classes of
Certificates as follows: (i) first, the Paying Agent shall be deemed to
distribute to the Trustee, as holder of the Group PB REMIC I Regular Interest to
which such Mortgage Loan relates, any Prepayment Premiums collected on or with
respect to such Mortgage Loan in that Loan Group on that Distribution Date; and
(ii) second, the Paying Agent shall be deemed to distribute to the Trustee, as
holder of the REMIC II Regular Interests, any Prepayment Premiums deemed
distributed to the REMIC I Regular Interests, and shall be deemed to distribute
such Prepayment Premiums to the REMIC II Regular Interest then entitled to
distributions of principal from the Principal Distribution Amount (or, if more
than one Class of REMIC II Regular Interests is then entitled to distributions
of principal from the Principal Distribution Amount, such Prepayment Premiums
shall be deemed distributed among such Classes pro rata in accordance with the
relevant amounts of entitlements to distributions of principal).
Following such deemed distributions, the Holders of the respective
Classes of Principal Balance Certificates (other than the Class J, Class K,
Class L, Class M, Class N, Class O and Class P Certificates) and the Class
A-3-1FL Regular Interest then entitled to distributions of principal from the
Principal Distribution Amount for such Distribution Date, will be entitled to,
and the Paying Agent on behalf of the Trustee will pay to such Holder(s), an
amount equal to, in the case of each such Class, the product of (a) a fraction,
the numerator of which is the amount distributed as principal to the Holders of
that Class on that Distribution Date, and the denominator of which is the total
amount distributed as principal to the Holders of all Classes of Principal
Balance Certificates on that Distribution Date, (b) the Base Interest Fraction
for the related Principal Prepayment and that Class of Certificates and (c) the
amount of Prepayment Premiums or Yield Maintenance Charges in respect of such
principal prepayment during the related Collection Period. If there is more than
one such Class of Principal Balance Certificates entitled to distributions of
principal on such Distribution Date, the aggregate amount described in the
preceding sentence will be allocated among such Classes on a pro rata basis in
accordance with the relative amounts of entitlement to such distributions of
principal. Any portion of such Prepayment Premium or Yield Maintenance Charge
that is not so distributed to the Holders of such Principal Balance Certificates
will be distributed to the Holders of the Class X-1 and Class X-2 Certificates.
On or prior to the Distribution Date in October 2010, 80% of the Prepayment
Premium or Yield Maintenance Charge that is not so distributed to the Holders of
such Principal Balance Certificates will be distributed to the Holders of the
Class X-1 Certificates and 20% of the Prepayment Premium or Yield Maintenance
Charge that is not so distributed to the Holders of such Principal Balance
Certificates will be distributed to the Holders of the Class X-2 Certificates.
After the Distribution Date in October 2010, any portion of such Prepayment
Premium or Yield Maintenance Charge collected during the related Collection
Period that is not so distributed to the Holders of such Principal Balance
Certificates will be distributed to the Holders of the Class X-1 Certificates.
For so long as the Swap Contract or any replacement swap contract is in effect,
the Prepayment Premium allocated to the Class A-3-1FL Regular Interest shall be
payable to the Swap Counterparty pursuant to the terms of the Swap Contract. If
the Swap Contract and any replacement swap contract are no longer in effect, any
Prepayment Premium allocated to the Class A-3-1FL Regular Interest shall be
distributed to the Class A-3-1FL Certificates.
Notwithstanding the foregoing, Yield Maintenance Charges collected
during any Collection Period with respect to any Specially Designated Co-op
Mortgage Loan will be distributed to the REMIC III Regular Interests as follows,
with allocations to be made pursuant to the following (a) and (b) on a pro rata
basis: (a) if the amount of such Yield Maintenance Charges exceeds any
applicable Yield Maintenance Minimum Amount, (x) the amount of such Yield
Maintenance Charges that would have been payable with respect to such Specially
Designated Co-op Mortgage Loan if the related Mortgage Rate was equal to the
related REMIC I Net Mortgage Rate with respect to such Mortgage Loan (calculated
without regard to any Yield Maintenance Minimum Amount) will be distributed as
set forth above, and (y) the amount of such Yield Maintenance Charges actually
payable during such Collection Period in excess of the amount to be distributed
pursuant to clause (x) will be distributed to the Holders of the Class X-Y
Certificates; (b) if the amount of such Yield Maintenance Charges equals any
applicable Yield Maintenance Minimum Amount, such Yield Maintenance Charges
shall be distributed as follows: (x) 50% to the Holders of the Class A-1, Class
A-1A, Class A-2, Class A-3-1, Class A-3-2, Class A-AB, Class X-0X, Xxxxx X-0X,
Xxxxx X-X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
X-1 and Class X-2 Certificates and the Class A-3-1FL Regular Interest, allocable
among such Classes as set forth in the paragraphs above, and (y) 50% to the
Holders of the Class X-Y Certificates; and (c) notwithstanding the foregoing,
Prepayment Premiums collected during any Collection Period with respect to any
Specially Designated Co-op Mortgage Loan shall be distributed as follows: (a)
50% to the Holders of the Class A-1, Class A-1A Class A-2, Class A-3-1, Class
A-3-2, Class A-AB, Class X-0X, Xxxxx X-0X, Xxxxx X-X, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class X-1 and Class X-2 Certificates and the
Class A-3-1FL Regular Interest, allocable among such Classes as set forth in the
paragraph above, and (b) 50% to the Holders of the Class X-Y Certificates.
Section 6.12 Other Distributions.
On each Distribution Date, the Paying Agent shall distribute the
Class A-3-1FL Available Funds for such Distribution Date to the Holders of
record of the Class A-3-1FL Certificates as of the related Record Date in the
following amounts: (i) the Class A-3-1FL Interest Distribution Amount, (ii) the
Class A-3-1FL Principal Distribution Amount, (iii) any termination payments made
by the Swap Counterparty and not used by the Paying Agent to enter into a
replacement swap contract, and (iv) only if the Swap Contract has been
terminated and no replacement Swap Contract has been entered into, any
Prepayment Premiums that were allocated to the Class A-3-1FL Regular Interest.
No Holder of a Class A-3-1FL Certificate shall be entitled to receive any
portion of any Prepayment Premium paid on the Class A-3-1FL Regular Interest
unless the Swap Contract has been terminated and no replacement Swap Contract
has been entered into. Such amount shall be payable to the Swap Counterparty
pursuant to the terms of the Swap Contract. Following a Swap Default under the
Swap Contract or other default or event of termination of the Swap Contract, and
during the period when the Trustee is pursuing remedies under such Swap
Contract, the Class A-3-1FL Interest Distribution Amount for each Class A-3-1FL
Certificate shall equal the Distributable Certificate Interest amount for the
Class A-3-1FL Regular Interest, until such time as the conditions giving rise to
such Swap Default or other default have been cured. Any such Swap Default, other
default or event of termination, and the consequent change to a fixed
Pass-Through Rate shall not constitute a default under this Agreement. To the
extent required by The Depository Trust Company, a Swap Default can result in a
delay in the distribution of amounts payable to the Class A-3-1FL Certificates
and such delay will not constitute a default under this Agreement nor result in
the accrual of interest on such delayed payment and no party hereto shall be
obligated to advance such amounts. Notwithstanding the foregoing, to the extent
provided in the Swap Contract, the Swap Counterparty will remain liable for such
Swap Default or other default or event of termination pursuant to the Swap
Contract.
For as long as a Swap Default or other default or event of
termination has occurred and a Class A-3-1FL Certificate is receiving the fixed
Pass-Through Rate, such Class A-3-1FL Certificate shall accrue interest at the
same rate, on the same basis and in the same manner as the related Class A-3-1FL
Regular Interest.
If the Swap Contract becomes subject to early termination due to the
occurrence of an event of default or a termination event thereunder, the Paying
Agent on behalf of the Trustee shall promptly provide written notice to the
Holders of the Class A-3-1FL Certificates and the Paying Agent shall take such
commercially reasonable actions (following the expiration of any applicable
grace period), unless directed in writing by the Certificateholders evidencing,
in the aggregate, not less than 100% of the Voting Rights of the Class A-3-1FL
Certificates, to enforce the rights of the Trust under the Swap Contract as may
be permitted by the terms of the Swap Contract and consistent with the terms
hereof (and only to the extent that, and only for so long as, doing so does not
lead the Paying Agent to incur expenses in excess of the amounts available to it
for reimbursement), and shall apply the proceeds collected from the Swap
Counterparty in connection with any such actions (including, without limitation,
the proceeds of the liquidation of any collateral pledged by the Swap
Counterparty) to enter into a replacement interest rate swap contract on
substantially identical terms or on such other terms reasonably acceptable to
the Trustee as directed by 100% of the Holders of the Class A-3-1FL
Certificates. Each Rating Agency shall confirm in writing that such action will
not result in a qualification, downgrade or withdrawal of the then-current
ratings of the Certificates. If the costs attributable to entering into a
replacement interest rate swap contract will exceed the sum of the net proceeds
of the liquidation of the Swap Contract, a replacement interest rate swap
contract shall not be entered into. Prior to the application of any proceeds in
accordance with the terms of this paragraph, such proceeds shall be deposited in
the Floating Rate Account. Any proceeds of the liquidation of the Swap Contract
which exceed the costs attributable to entering into a replacement interest rate
swap contract (or if no replacement interest rate swap contract is entered into)
shall be deposited into the Floating Rate Account and shall be distributed to
the Holders of the Class A-3-1FL Certificates.
The Trustee and the Paying Agent shall be entitled to conclusively
rely on the report from the Swap Counterparty that specifies LIBOR for any
Interest Accrual Period (in the absence of manifest error).
As long as the Swap Contract is in effect, each beneficial owner of
a Class A-3-1FL Certificate, or any interest therein, shall be deemed to have
represented that either (i) it is not an employee benefit plan subject to Title
I of ERISA, a plan subject to Section 4975 of the Code, or a plan subject to any
Similar Laws or any person investing on behalf of or with plan assets of such
employee benefit plan or plan or (ii) the acquisition and holding of such
Certificate are eligible for the exemptive relief available under at least one
of the Investor-Based Exemptions.
Notwithstanding anything herein to the contrary, any expenses
incurred by the Trustee under this Section 6.12 shall be paid by the Class
A-3-1FL Grantor Trust, and not by any other trust hereunder, but only upon the
Trustee's determination that such expenses cannot be recovered from the Swap
Counterparty or any proceeds due under the Swap Contract; provided, however,
that either without the consent of 100% of the Holders of the Class A-3-1FL
Certificates or the written confirmation of each Rating Agency then rating the
Class A-3-1FL Certificates that such action or event will not result in the
reduction, qualification or withdrawal of its then current rating of the Class
A-3-1FL Certificates (the expense of such confirmation to be borne by the
holders of the Class A-3-1FL Certificates), the Trustee shall not be permitted
to incur such costs and expenses in excess of any termination payment received
from the Swap Counterparty and not otherwise applied to offset the expense of
entering into a replacement swap contract. Factors that the Trustee may consider
when making a recoverability determination with respect to the reimbursement of
such expenses include, but are not limited to, (i) the financial condition of
the Swap Counterparty and (ii) the likelihood that the Swap Counterparty will
make such reimbursements in the event the Trustee pursues appropriate legal
action or other commercially reasonable enforcement and collection measures.
ARTICLE VII
CERTAIN MATTERS CONCERNING THE TRUSTEE AND THE PAYING AGENT
Section 7.1 Duties of the Trustee and the Paying Agent
(a) The Trustee and the Paying Agent each shall undertake to perform
only those duties as are specifically set forth in this Agreement and no implied
covenants or obligations shall be read into this Agreement against the Trustee
or the Paying Agent. Any permissive right of the Trustee or the Paying Agent
provided for in this Agreement shall not be construed as a duty of the Trustee
or the Paying Agent. The Trustee shall exercise such of the rights and powers
vested in it by this Agreement and following the occurrence and during the
continuation of any Event of Default hereunder, the Trustee shall use the same
degree of care and skill in its exercise as a prudent Person would exercise or
use under the circumstances in the conduct of such Person's own affairs.
(b) The Trustee or the Paying Agent, as applicable, upon receipt of
all resolutions, certificates, statements, opinions, reports, documents, orders
or other instruments furnished to the Trustee or the Paying Agent, as the case
may be, which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they on
their face conform to the requirements of this Agreement; provided that the
Trustee or the Paying Agent, as the case may be, shall not be responsible for
the accuracy or content of any such resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Master Servicers or
any other Person to it pursuant to this Agreement. If any such instrument is
found on its face not to conform to the requirements of this Agreement, the
Trustee or the Paying Agent shall request the providing party to correct the
instrument and if not so corrected, the Trustee shall inform the
Certificateholders.
(c) Neither of the Trustee or the Paying Agent or any of their
respective partners, representatives, Affiliates, members, managers, directors,
officers, employees, agents or Controlling Persons shall have any liability to
the Trust or the Certificateholders arising out of or in connection with this
Agreement, except for their respective negligence or willful misconduct. No
provision of this Agreement shall be construed to relieve the Trustee, the
Paying Agent or any of their respective partners, representatives, Affiliates,
members, managers, directors, officers, employees, agents or Controlling Persons
from liability for their own negligent action, their own negligent failure to
act or their own willful misconduct or bad faith; provided that:
(i) neither of the Trustee or the Paying Agent or any of their
respective partners, representatives, Affiliates, members, managers,
directors, officers, employees, agents or Controlling Persons shall be
personally liable with respect to any action taken, suffered or omitted to
be taken by it in its reasonable business judgment in accordance with this
Agreement or at the direction of Holders of Certificates evidencing not
less than a majority of the outstanding Certificate Balance of the
Certificates;
(ii) no provision of this Agreement shall require either the Trustee
or the Paying Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it;
(iii) neither of the Trustee or the Paying Agent or any of their
respective partners, representatives, Affiliates, members, managers,
directors, officers, employees, agents or Controlling Persons shall be
responsible for any act or omission of any Master Servicer, any Special
Servicer, the Depositor or any Seller, or for the acts or omissions of
each other, including, without limitation, in connection with actions
taken pursuant to this Agreement;
(iv) the execution by the Trustee or the Paying Agent of any forms
or plans of liquidation in connection with any REMIC Pool shall not
constitute a representation by the Trustee or the Paying Agent as to the
adequacy of such form or plan of liquidation;
(v) neither of the Trustee or the Paying Agent shall be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties as Trustee or Paying Agent, as applicable, in
accordance with this Agreement. In such event, all legal expense and costs
of such action shall be expenses and costs of the Trust and the Trustee
and the Paying Agent shall be entitled to be reimbursed therefor from the
Certificate Account pursuant to Section 5.2(a)(vi); and
(vi) neither of the Trustee or the Paying Agent shall be charged
with knowledge of any failure by any Master Servicer, any Special Servicer
or the Swap Counterparty or by each other to comply with its obligations
under this Agreement or the Swap Contract or any act, failure, or breach
of any Person upon the occurrence of which the Trustee or the Paying Agent
may be required to act, unless a Responsible Officer of the Trustee or the
Paying Agent, as the case may be, obtains actual knowledge of such
failure.
Section 7.2 Certain Matters Affecting the Trustee and the Paying
Agent
(a) Except as otherwise provided in Section 7.1:
(i) the Trustee and the Paying Agent each may request, and may rely
and shall be protected in acting or refraining from acting upon any
resolution, Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(ii) the Trustee and the Paying Agent each may consult with counsel
and the advice of such counsel and any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(iii) neither of the Trustee or the Paying Agent or any of their
respective partners, representatives, Affiliates, members, managers,
directors, officers, employees, agents or Controlling Persons shall be
personally liable for any action taken, suffered or omitted by such Person
in its reasonable business judgment and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(iv) the Trustee and the Paying Agent shall not be under any
obligation to exercise any remedies after default as specified in this
Agreement or to institute, conduct or defend any litigation hereunder or
relating hereto or make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document
(provided the same appears regular on its face), unless requested in
writing to do so by Holders of at least 25% of the Aggregate Certificate
Balance of the Certificates then outstanding, provided that, if the
payment within a reasonable time to the Trustee or the Paying Agent, as
applicable, of the costs, expenses or liabilities likely to be incurred by
it in connection with the foregoing is, in the opinion of such Person not
reasonably assured to such Person by the security afforded to it by the
terms of this Agreement, such Person may require reasonable indemnity
against such expense or liability or payment of such estimated expenses as
a condition to proceeding. The reasonable expenses of the Trustee or the
Paying Agent, as applicable, shall be paid by the Certificateholders
requesting such examination;
(v) the Trustee and the Paying Agent each may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys, which agents or attorneys shall have
any or all of the rights, powers, duties and obligations of the Trustee
and the Paying Agent conferred on them by such appointment; provided that
each of the Trustee and the Paying Agent, as the case may be, shall
continue to be responsible for its duties and obligations hereunder and
shall not be liable for the actions or omissions of any Master Servicer,
any Special Servicer, the Depositor or the actions or omissions of each
other;
(vi) neither of the Trustee or the Paying Agent shall be required to
obtain a deficiency judgment against a Mortgagor;
(vii) neither of the Trustee or the Paying Agent shall be required
to expend its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such liability is not assured to it;
(viii) neither of the Trustee or the Paying Agent shall be liable
for any loss on any investment of funds pursuant to this Agreement;
(ix) unless otherwise specifically required by law, neither of the
Trustee or the Paying Agent shall be required to post any surety or bond
of any kind in connection with the execution or performance of its duties
hereunder; and
(x) except as specifically provided hereunder in connection with the
performance of its specific duties, neither of the Trustee or the Paying
Agent shall be responsible for any act or omission of any Master Servicer,
any Special Servicer, the Depositor or of each other.
(b) Following the Closing Date, the Trustee shall not accept any
contribution of assets to the Trust not specifically contemplated by this
Agreement unless the Trustee shall have received a Nondisqualification Opinion
at the expense of the Person desiring to contribute such assets with respect to
such contribution.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
any proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
(d) The Trustee shall timely pay, from its own funds, the amount of
any and all federal, state and local taxes imposed on the Trust or its assets or
transactions including, without limitation, (A) "prohibited transaction" penalty
taxes as defined in Section 860F of the Code, if, when and as the same shall be
due and payable, (B) any tax on contributions to a REMIC after the Closing Date
imposed by Section 860G(d) of the Code and (C) any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, but only if
such taxes arise out of a breach by the Trustee of its obligations hereunder,
which breach constitutes negligence or willful misconduct of the Trustee.
(e) The Paying Agent shall timely pay, from its own funds, the
amount of any and all federal, state and local taxes imposed on the Trust or its
assets or transactions including, without limitation, (A) "prohibited
transaction" penalty taxes as defined in Section 860F of the Code, if, when and
as the same shall be due and payable, (B) any tax on contributions to a REMIC
after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on
"net income from foreclosure property" as defined in Section 860G(c) of the
Code, but only if such taxes arise out of a breach by the Paying Agent of its
obligations hereunder, which breach constitutes negligence or willful misconduct
of the Paying Agent.
(f) If, in connection with any Distribution Date, the Trustee or
Paying Agent has reported to the Depository the anticipated amount of the
distribution to be made to the Depository on such Distribution Date and the
timing of the receipt from a Master Servicer of any Principal Prepayment or
Balloon Payment requires modification of such anticipated amount of the
distribution to be made to the Depository, the Trustee or Paying Agent will use
commercially reasonable efforts to cause the Depository to revise the amount of
the distribution on a timely basis so that such Principal Prepayments or Balloon
Payments will be included in the Available Distribution Amount for such
Distribution Date. None of the Trustee, the Paying Agent, the Master Servicers
and the Special Servicers will be liable or held responsible for any resulting
delay (or claims by the Depository resulting therefrom) in the making of such
distribution to Certificateholders.
Section 7.3 The Trustee and the Paying Agent Not Liable for
Certificates or Interests or Mortgage Loans
The Trustee and the Paying Agent each makes no representations as to
the validity or sufficiency of this Agreement, the information contained in the
Private Placement Memorandum, the Preliminary Prospectus Supplement, the Final
Prospectus Supplement or Prospectus for the REMIC III Regular Interests or
Residual Certificates (other than the Certificate of Authentication on the
Certificates if the Paying Agent is the Authenticating Agent) or of any Mortgage
Loan, Assignment of Mortgage or related document save that (i) each of the
Trustee and the Paying Agent represents that, assuming due execution and
delivery by the other parties hereto, this Agreement has been duly authorized,
executed and delivered by it and constitutes its valid and binding obligation,
enforceable against it in accordance with its terms except that such
enforceability may be subject to (A) applicable bankruptcy and insolvency laws
and other similar laws affecting the enforcement of the rights of creditors
generally, and (B) general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law and (ii) the
Trustee represents that, assuming due execution and delivery by the other
parties hereto, this Agreement has been duly authorized, executed and delivered
by it and constitutes its valid and binding obligation, enforceable against it
in accordance with its terms except that such enforceability may be subject to
(A) applicable bankruptcy and insolvency laws and other similar laws affecting
the enforcement of the rights of creditors generally, and (B) general principles
of equity regardless of whether such enforcement is considered in a proceeding
in equity or at law. Neither of the Trustee or the Paying Agent shall be
accountable for the use or application by the Depositor or any Master Servicer
or any Special Servicer or by each other of any of the Certificates or any of
the proceeds of such Certificates, or for the use or application by the
Depositor or any Master Servicer or any Special Servicer or by each other of
funds paid in consideration of the assignment of the Mortgage Loans to the Trust
or deposited into the Distribution Account or any other fund or account
maintained with respect to the Certificates or any account maintained pursuant
to this Agreement or for investment of any such amounts. No recourse shall be
had for any claim based on any provisions of this Agreement, the Private
Placement Memorandum, the Preliminary Prospectus Supplement, the Final
Prospectus Supplement, the Prospectus or the Certificates (except with respect
to the Trustee and the Paying Agent to the extent of information furnished by
the Trustee and the Paying Agent under the caption entitled "DESCRIPTION OF THE
OFFERED CERTIFICATES--The Trustee, Paying Agent, Certificate Registrar and
Authenticating Agent" in the Preliminary Prospectus Supplement and the Final
Prospectus Supplement), the Mortgage Loans or the assignment thereof against the
Trustee or the Paying Agent in such Person's individual capacity and any such
claim shall be asserted solely against the Trust or any indemnitor who shall
furnish indemnity as provided herein. None of the Trustee or the Paying Agent
shall be liable for any action or failure of any action by the Depositor or any
Master Servicer or any Special Servicer or by each other hereunder. None of
Trustee or the Paying Agent shall at any time have any responsibility or
liability for or with respect to the legality, validity or enforceability of the
Mortgages or the Mortgage Loans, or the perfection and priority of the Mortgages
or the maintenance of any such perfection and priority, or for or with respect
to the efficacy of the Trust or its ability to generate the payments to be
distributed to Certificateholders under this Agreement, including, without
limitation, the existence, condition and ownership of any Mortgaged Property;
the existence and enforceability of any hazard insurance thereon; the validity
of the assignment of the Mortgage Loans to the Trust or of any intervening
assignment; the completeness of the Mortgage Loans; the performance or
enforcement of the Mortgage Loans (other than if the Trustee shall assume the
duties of any Master Servicer); the compliance by the Depositor, each Seller,
the Mortgagor or any Master Servicer or any Special Servicer or by each other
with any warranty or representation made under this Agreement or in any related
document or the accuracy of any such warranty or representation made under this
Agreement or in any related document prior to the receipt by a Responsible
Officer of the Trustee of notice or other discovery of any non compliance
therewith or any breach thereof; any investment of monies by or at the direction
of any Master Servicer or any Special Servicer or any loss resulting therefrom;
the failure of any Master Servicer or any Sub-Servicer or any Special Servicer
to act or perform any duties required of it on behalf of the Trustee hereunder;
or any action by the Trustee taken at the instruction of any Master Servicer or
any Special Servicer.
Section 7.4 The Trustee and the Paying Agent May Own Certificates
Each of the Trustee and the Paying Agent in its individual or any
other capacity may become the owner or pledgee of Certificates with the same
rights it would have if it were not the Trustee or the Paying Agent, as the case
may be.
Section 7.5 Eligibility Requirements for the Trustee and the Paying
Agent
The Trustee hereunder shall at all times be (i) an institution
insured by the FDIC, (ii) a corporation, national bank or national banking
association organized and doing business under the laws of the United States of
America and any state thereof, authorized to exercise corporate trust powers,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by federal or state authority, and (iii) an
institution whose short-term debt obligations are at all times rated not less
than "A 1" (without regard to plus or minus) by S&P and "Prime-1" by Xxxxx'x and
whose long term senior unsecured debt is at all times rated not less than "A1"
by Xxxxx'x and "A+" by S&P. If such corporation, national bank or national
banking association publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then, for the purposes of this Section, the combined capital and
surplus of such corporation, national bank or national banking association shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 7.6.
The Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers and shall be
rated at least "A" by S&P and "A2" by Xxxxx'x, unless and to the extent Rating
Agency Confirmation is obtained.
Section 7.6 Resignation and Removal of the Trustee or the Paying
Agent
(a) The Trustee or the Paying Agent may at any time resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Depositor, the Master Servicers, the Swap Counterparty and the Rating
Agencies; provided that such resignation shall not be effective until its
successor shall have accepted the appointment. Upon receiving such notice of
resignation, the Depositor will promptly appoint a successor trustee or paying
agent, as the case may be. If no successor trustee or paying agent shall have
been so appointed, as the case may be, and shall have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee or the Paying Agent, as the case may be, may petition any court of
competent jurisdiction for the appointment of a successor trustee or paying
agent, as the case may be. It shall be a condition to the appointment of a
successor trustee that such entity satisfies the eligibility requirements set
forth in Section 7.5.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.5 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust or any REMIC Pool by any state
in which the Trustee or the Trust held by the Trustee is located solely because
of the location of the Trustee in such state; provided, however, that, if the
Trustee agrees to indemnify the Trust for such taxes, it shall not be removed
pursuant to this clause (iii), or (iv) the continuation of the Trustee as such
would result in a downgrade, qualification or withdrawal of the rating by the
Rating Agencies of any Class of Certificates with a rating as evidenced in
writing by the Rating Agencies. In the case of removal under clauses (i), (ii),
(iii) and (iv) above, the Trustee shall bear all such costs of transfer. Such
succession shall take effect after a successor trustee has been appointed and
has accepted such appointment. In the case of the removal of the initial
Trustee, the Depositor shall also remove the Paying Agent.
(c) If at any time (i) the Paying Agent shall cease to be eligible
in accordance with the provisions of Section 7.5 and shall fail to resign after
written request therefor by the Depositor, (ii) the Paying Agent shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Paying Agent or of its property shall be appointed, or any public officer
shall take charge or control of the Paying Agent or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust or any REMIC Pool by any state
in which the Paying Agent is located solely because of the location of the
Paying Agent in such state; provided, however, that, if the Paying Agent agrees
to indemnify the Trust for such taxes, it shall not be removed pursuant to this
clause (iii), or (iv) the continuation of the Paying Agent as such would result
in a downgrade, qualification or withdrawal, as applicable, of the rating by any
Rating Agency of any Class of Certificates with a rating as evidenced in writing
by any Rating Agency, then the Depositor or the Trustee shall send a written
notice of termination to the Paying Agent (which notice shall specify the reason
for such termination) and remove such Paying Agent and the Depositor shall
appoint a successor Paying Agent by written instrument, one copy of which
instrument shall be delivered to the Paying Agent so removed, one copy to the
successor Paying Agent, and one copy to each of the Trustee, the Master
Servicers, the Swap Counterparty and the Rating Agencies. In all such cases, the
Paying Agent shall bear all costs of transfer to a successor Paying Agent, such
succession only to take effect after a successor Paying Agent has been appointed
and has accepted such appointment.
(d) The Holders of more than 50% of the Aggregate Certificate
Balance of the Certificates then outstanding may for cause upon 30 days' written
notice to the Trustee or the Paying Agent, as the case may be, and to the
Depositor remove the Trustee or the Paying Agent, as the case may be, by such
written instrument, signed by such Holders or their attorney-in-fact duly
authorized, one copy of which instrument shall be delivered to the Depositor and
one copy to the Trustee or the Paying Agent, as the case may be, so removed; the
Depositor shall thereupon use its best efforts to appoint a successor Trustee or
the Paying Agent, as the case may be, in accordance with this Section.
(e) Any resignation or removal of the Trustee or the Paying Agent,
as the case may be, and appointment of a successor trustee or paying agent
pursuant to any of the provisions of this Section shall become effective upon
acceptance of appointment by the successor trustee or paying agent, as the case
may be, as provided in Section 7.7. Upon any succession of the Trustee or the
Paying Agent under this Agreement, the predecessor Trustee or Paying Agent, as
the case may be, shall be entitled to the payment of compensation and
reimbursement agreed to under this Agreement for services rendered and expenses
incurred. The Trustee or the Paying Agent shall not be liable for any action or
omission of any successor Trustee or Paying Agent, as the case may be.
Section 7.7 Successor Trustee or Paying Agent
(a) Any successor Trustee or Paying Agent appointed as provided in
Section 7.6 shall execute, acknowledge and deliver to the Depositor and to its
predecessor Trustee or Paying Agent, as the case may be, an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee or Paying Agent, as the case may be, shall become effective
and such successor Trustee or Paying Agent, as the case may be, without any
further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as Trustee or Paying Agent herein, as the case may be. The
predecessor Trustee or Paying Agent shall deliver (at such predecessor's own
expense) to the successor Trustee or Paying Agent all Mortgage Files and
documents and statements related to the Mortgage Files held by it hereunder, and
the predecessor Trustee shall duly assign, transfer, deliver and pay over (at
such predecessor's own expense) to the successor Trustee, the entire Trust,
together with all instruments of transfer and assignment or other documents
properly executed necessary to effect such transfer. The predecessor Trustee or
Paying Agent, as the case may be, shall also deliver all records or copies
thereof maintained by the predecessor Trustee or Paying Agent in the
administration hereof as may be reasonably requested by the successor Trustee or
Paying Agent, as applicable, and shall thereupon be discharged from all duties
and responsibilities under this Agreement. In addition, the Depositor and the
predecessor Trustee or Paying Agent shall execute and deliver such other
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor Trustee or Paying Agent, as the
case may be, all such rights, powers, duties and obligations. Anything herein to
the contrary notwithstanding, in no event shall the combined fees payable to a
successor Trustee exceed the Trustee Fee.
(b) No successor Trustee or Paying Agent shall accept appointment as
provided in this Section unless at the time of such appointment such successor
Trustee or Paying Agent, as the case may be, shall be eligible under the
provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee or Paying
Agent as provided in this Section, the successor Trustee or Paying Agent shall
mail notice of the succession of such Trustee or Paying Agent hereunder to all
Holders of Certificates at their addresses as shown in the Certificate Register
and to the Rating Agencies. The expenses of such mailing shall be borne by the
successor Trustee or Paying Agent. If the successor Trustee or Paying Agent
fails to mail such notice within 10 days after acceptance of appointment by the
successor Trustee or Paying Agent, the Master Servicer shall cause such notice
to be mailed at the expense of the successor Trustee or Paying Agent, as
applicable.
Section 7.8 Merger or Consolidation of Trustee or Paying Agent
Any Person into which the Trustee or Paying Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which such Trustee or Paying Agent shall
be a party, or any Persons succeeding to the business of such Trustee or Paying
Agent, shall be the successor of such Trustee or Paying Agent, as the case may
be, hereunder, as applicable, provided that such Person shall be eligible under
the provisions of Section 7.5, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or
Custodian
(a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or, in the case of the Trust, the Certificateholders
evidencing more than 50% of the Aggregate Certificate Balance of the
Certificates then outstanding shall each have the power from time to time to
appoint one or more Persons to act either as co-trustees jointly with the
Trustee or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee is advised by any Master Servicer or any Special Servicer that such
separate trustee or co-trustee is necessary or advisable) under the laws of any
state in which a property securing a Mortgage Loan is located or for the purpose
of otherwise conforming to any legal requirement, restriction or condition in
any state in which a property securing a Mortgage Loan is located or in any
state in which any portion of the Trust is located. The separate trustees, co
trustees, or custodians so appointed shall be trustees or custodians for the
benefit of all the Certificateholders, shall have such powers, rights and
remedies as shall be specified in the instrument of appointment and shall be
deemed to have accepted the provisions of this Agreement; provided that no such
appointment shall, or shall be deemed to, constitute the appointee an agent of
the Trustee; provided, further, that the Trustee shall be liable for the actions
of any co-trustee or separate trustee appointed by it and shall have no
liability for the actions of any co-trustee or separate trustee appointed by the
Depositor or the Certificateholders pursuant to this paragraph.
(b) The Trustee or the Paying Agent, as the case may be, may from
time to time appoint one or more independent third-party agents to perform all
or any portion of its administrative duties hereunder (i.e., collection and
distribution of funds, preparation and dissemination of reports, monitoring
compliance, etc.). The Trustee or the Paying Agent, as the case may be, shall
supervise and oversee such agents appointed by it. The terms of any arrangement
or agreement between the Trustee or the Paying Agent, as the case may be, and
such agent, may be terminated, without cause and without the payment of any
termination fees in the event the Trustee or the Paying Agent, as the case may
be, is terminated in accordance with this Agreement. In addition, neither the
Trust nor the Certificateholders shall have any liability or direct obligation
to such agent. Notwithstanding the terms of any such agreement, the Trustee or
the Paying Agent, as the case may be, shall remain at all times obligated and
liable to the Trust and the Certificateholders for performing its duties
hereunder.
(c) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised
or performed by the Trustee and such separate trustee, co-trustee, or
custodian jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to a Master Servicer
hereunder) the Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations,
including the holding of title to the Trust or any portion thereof in any
such jurisdiction, shall be exercised and performed by such separate
trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally liable
by reason of any act or omission of any other trustee or custodian
hereunder; and
(iv) the Trustee or, in the case of the Trust, the
Certificateholders evidencing more than 50% of the Aggregate Principal
Amount of the Certificates then outstanding may at any time accept the
resignation of or remove any separate trustee, co-trustee or custodian, so
appointed by it or them, if such resignation or removal does not violate
the other terms of this Agreement.
(d) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VII. Each separate trustee and co
trustee, upon its acceptance of the trusts conferred, shall be vested with the
estates or property specified in its instrument of appointment, either jointly
with the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee.
(e) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
(f) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
7.5 hereof and no notice to Certificateholders of the appointment of any
separate trustee, co-trustee or custodian hereunder shall be required.
(g) The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
(h) The Trustee shall pay the reasonable compensation of the
co-trustees, separate trustees or custodians appointed by the Trustee pursuant
to this Section 7.9 to the extent, and in accordance with the standards,
specified in Section 7.12 hereof.
(i) Subject to the consent of the Depositor, which consent shall not
be unreasonably withheld, the Trustee, at its sole cost and expense, may appoint
at any time a successor Custodian. Until such time as the Trustee appoints a
successor Custodian, the Trustee shall be the Custodian hereunder. Upon the
appointment of a successor custodian, the Trustee and the Custodian shall enter
into a custodial agreement.
Section 7.10 Authenticating Agents
(a) The Paying Agent shall serve as the initial Authenticating Agent
hereunder for the purpose of executing and authenticating Certificates. Any
successor Authenticating Agent must be acceptable to the Depositor and must be a
corporation or national bank organized and doing business under the laws of the
United States of America or of any state and having a principal office and place
of business in the Borough of Manhattan in the City and State of New York,
having a combined capital and surplus of at least $50,000,000, authorized under
such laws to do a trust business and subject to supervision or examination by
federal or state authorities.
(b) Any Person into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Authenticating Agent shall be a
party, or any Person succeeding to the corporate agency business of the
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) The Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee and the
Depositor. The Trustee may at any time terminate the agency of the
Authenticating Agent by giving written notice of termination to the
Authenticating Agent and the Depositor; provided that the Trustee may not
terminate the Paying Agent as Authenticating Agent unless the Paying Agent shall
be removed as Paying Agent hereunder. Upon receiving a notice of resignation or
upon such a termination, or in case at any time the Authenticating Agent shall
cease to be eligible in accordance with the provisions of Section 7.10(a), the
Trustee may appoint a successor Authenticating Agent, shall give written notice
of such appointment to the Depositor and shall mail notice of such appointment
to all Holders of Certificates. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. No such Authenticating
Agent shall be appointed unless eligible under the provisions of Section
7.10(a). No Authenticating Agent shall have responsibility or liability for any
action taken by it as such at the direction of the Trustee.
Section 7.11 Indemnification of the Trustee and the Paying Agent
(a) The Trustee, the Certificate Registrar, the Paying Agent and
each of its respective partners, representatives, Affiliates, members, managers,
directors, officers, employees, agents and Controlling Persons shall be entitled
to indemnification from the Trust for any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments and any other costs,
liabilities, fees and expenses incurred in connection with any legal action
incurred without negligence or willful misconduct on their respective part,
arising out of, or in connection with this Agreement, the Mortgage Loans, the
Certificates and the acceptance or administration of the trusts or duties
created hereunder (including, without limitation, any unanticipated loss,
liability or expense incurred in connection with any action or inaction of any
Master Servicer, any Special Servicer or the Depositor or of each other such
Person hereunder but only to the extent the Trustee, the Certificate Registrar
or the Paying Agent, as the case may be, is unable to recover within a
reasonable period of time such amount from such third party pursuant to this
Agreement) including the costs and expenses of defending themselves against any
claim in connection with the exercise or performance of any of their powers or
duties hereunder and the Trustee, the Certificate Registrar and the Paying Agent
and each of their respective partners, representatives, Affiliates, members,
managers, directors, officers, employees, agents and Controlling Persons shall
be entitled to indemnification from the Trust for any unanticipated loss,
liability or expense incurred in connection with the provision by the Trustee,
the Certificate Registrar and the Paying Agent of the reports required to be
provided by it pursuant to this Agreement; provided that:
(i) with respect to any such claim, the Trustee, the Certificate
Registrar or the Paying Agent, as the case may be, shall have given the
Depositor, the applicable Master Servicer, the Sellers, each other and the
Holders of the Certificates written notice thereof promptly after a
Responsible Officer of the Trustee, the Certificate Registrar or the
Paying Agent, as the case may be, shall have knowledge thereof; provided,
however, that failure to give such notice to the Depositor, such Master
Servicer, the Sellers, each other and the Holders of Certificates shall
not affect the Trustee's, Certificate Registrar's or Paying Agent's, as
the case may be, rights to indemnification herein unless the Depositor's
defense of such claim on behalf of the Trust is materially prejudiced
thereby;
(ii) while maintaining control over its own defense, the Trustee,
the Certificate Registrar or the Paying Agent, as the case may be, shall
cooperate and consult fully with the Depositor in preparing such defense;
and
(iii) notwithstanding anything to the contrary in this Section 7.11,
the Trust shall not be liable for settlement of any such claim by the
Trustee, the Certificate Registrar or the Paying Agent, as the case may
be, entered into without the prior consent of the Depositor, which consent
shall not be unreasonably withheld.
(b) The provisions of this Section 7.11 shall survive any
termination of this Agreement and the resignation or removal of the Trustee, the
Certificate Registrar or the Paying Agent, as the case may be.
(c) The Depositor shall indemnify and hold harmless the Trustee, the
Certificate Registrar or the Paying Agent, as the case may be, their respective
partners, representatives, Affiliates, members, managers, directors, officers,
employees, agents and Controlling Persons from and against any loss, claim,
damage or liability, joint or several, and any action in respect thereof, to
which the Trustee, the Certificate Registrar or the Paying Agent, as the case
may be, their respective partners, representatives, Affiliates, members,
managers, directors, officers, employees, agents or Controlling Person may
become subject under the 1933 Act, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon any untrue statement or
alleged untrue statement of a material fact contained in the Private Placement
Memorandum, the Preliminary Prospectus Supplement, the Final Prospectus
Supplement or the Prospectus, or arises out of, or is based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein in light of the circumstances under
which they were made, not misleading and shall reimburse the Trustee, the
Certificate Registrar or the Paying Agent, as the case may be, their respective
partners, representatives, Affiliates, members, managers, directors, officers,
employees, agents or Controlling Person for any legal and other expenses
reasonably incurred by the Trustee, the Certificate Registrar or the Paying
Agent, as the case may be, or any such partners, representatives, Affiliates,
members, managers, directors, officers, employees, agents or Controlling Person
in investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action; provided that the Depositor shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission made in any such Private Placement
Memorandum, Preliminary Prospectus Supplement, Final Prospectus Supplement or
Prospectus in reliance upon and in conformity with written information
concerning the Trustee, the Certificate Registrar or the Paying Agent, as the
case may be, furnished to the Depositor by or on behalf of such Person
specifically for inclusion therein. It is hereby expressly agreed that the only
written information provided by the Trustee, the Certificate Registrar or the
Paying Agent, as the case may be, for inclusion in the Preliminary Prospectus
Supplement and Final Prospectus Supplement is set forth in the third sentence
under the caption entitled "DESCRIPTION OF THE OFFERED CERTIFICATES--The
Trustee, Paying Agent, Certificate Registrar and Authenticating Agent--The
Trustee, Paying Agent, Certificate Registrar and Authenticating Agent. The
Trustee, the Certificate Registrar or the Paying Agent, as the case may be,
shall immediately notify the Depositor and the Sellers if a claim is made by a
third party with respect to this Section 7.11(c) entitling such Person, its
partners, representatives, Affiliates, members, managers, directors, officers,
employees, agents or Controlling Person to indemnification hereunder, whereupon
the Depositor shall assume the defense of any such claim (with counsel
reasonably satisfactory to such Person) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the Depositor shall not affect any rights the
Trustee, the Certificate Registrar or the Paying Agent, as the case may be,
their respective partners, representatives, Affiliates, members, managers,
directors, officers, employees, agents or Controlling Person may have to
indemnification under this Section 7.11(c), unless the Depositor's defense of
such claim is materially prejudiced thereby. The indemnification provided herein
shall survive the termination of this Agreement and the resignation or removal
of the Trustee or the Paying Agent. The Depositor shall not be indemnified by
the Trust for any expenses incurred by the Depositor arising from any violation
or alleged violation of the 1933 Act or 1934 Act by the Depositor.
Section 7.12 Fees and Expenses of Trustee and the Paying Agent
The Trustee shall be entitled to receive the Trustee Fee, pursuant
to Section 5.3(b)(ii) (which shall not be limited by any provision of law with
respect to the compensation of a trustee of an express trust), for all services
rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties respectively, hereunder of the
Trustee and the Paying Agent. The Trustee and the Paying Agent shall also be
entitled to recover from the Trust all reasonable unanticipated expenses and
disbursements incurred or made by the Trustee and the Paying Agent in accordance
with any of the provisions of this Agreement (including the reasonable
compensation and the reasonable expenses and disbursements of its counsel and
other Persons not regularly in its employ), not including expenses incurred in
the ordinary course of performing its duties as Trustee or Paying Agent,
respectively, hereunder, and except any such expense, disbursement or advance as
may arise from the negligence or bad faith of such Person or which is the
responsibility of the Holders of the Certificates hereunder. The provisions of
this Section 7.12 shall survive any termination of this Agreement and the
resignation or removal of the Trustee or the Paying Agent.
Section 7.13 Collection of Moneys
Except as otherwise expressly provided in this Agreement, the
Trustee and the Paying Agent may demand payment or delivery of, and shall
receive and collect, all money and other property payable to or receivable by
the Trustee or the Paying Agent, as the case may be, pursuant to this Agreement.
The Trustee or the Paying Agent, as the case may be, shall hold all such money
and property received by it as part of the Trust and shall distribute it as
provided in this Agreement. If the Trustee or the Paying Agent, as the case may
be, shall not have timely received amounts to be remitted with respect to the
Mortgage Loans from the applicable Master Servicer, the Trustee or the Paying
Agent, as the case may be, shall request that the applicable Master Servicer
make such distribution as promptly as practicable or legally permitted. If the
Trustee or the Paying Agent, as the case may be, shall subsequently receive any
such amount, it may withdraw such request.
Section 7.14 Trustee to Act; Appointment of Successor
(a) On and after the time a Master Servicer is terminated pursuant
to this Agreement in accordance with Sections 8.28 and 8.29, the Trustee shall
be the successor in all respects to such Master Servicer in its capacity under
this Agreement and the transactions set forth or provided for therein and shall
have all the rights and powers and be subject to all the responsibilities,
duties and liabilities relating thereto and arising thereafter placed on such
Master Servicer by the terms and provisions of this Agreement; provided that,
any failure to perform such duties or responsibilities caused by such Master
Servicer's failure to provide required information shall not be considered a
default by the Trustee hereunder. In addition, the Trustee shall have no
liability relating to (i) the representations and warranties of such Master
Servicer contained in this Agreement or (ii) any obligation incurred by such
Master Servicer prior to its termination or resignation (including, without
limitation, such Master Servicer's obligation to repay losses resulting from the
investment of funds in any account established under this Agreement), except any
ongoing obligations to the Primary Servicers arising after the termination of
such Master Servicer from their servicing rights and obligations under the
applicable Primary Servicing Agreement. In the Trustee's capacity as such
successor, the Trustee shall have the same limitations on liability granted to
such Master Servicer in this Agreement. As compensation therefor, the Trustee
shall be entitled to receive all the compensation payable to such Master
Servicer set forth in this Agreement, including, without limitation, the Master
Servicing Fee.
(b) Notwithstanding the above, the Trustee (A) may, if the Trustee
is unwilling to so act, or (B) shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint any established commercial
or multifamily mortgage finance institution, servicer or special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
meeting such other standards for a successor servicer as are set forth in this
Agreement and with respect to which Rating Agency Confirmation is obtained, as
the successor to such terminated Master Servicer hereunder in the assumption of
all of the responsibilities, duties or liabilities of a servicer as the
applicable Master Servicer hereunder and under the applicable Primary Servicing
Agreement. Pending any such appointment, the Trustee shall act in such capacity
as hereinabove provided. Any entity designated by the Trustee as successor
Master Servicer may be an Affiliate of the Trustee; provided that such Affiliate
must meet the standards for the Master Servicer as set forth herein. In
connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree subject to Section 8.10. The Trustee
and such successor shall take such actions, consistent with this Agreement as
shall be necessary to effectuate any such succession. The terminated Master
Servicer shall cooperate with the Trustee and any successor servicer in
effecting the termination of such Master Servicer's responsibilities and rights
under this Agreement, including, without limitation, notifying Mortgagors of the
assignment of the servicing function and providing the Trustee and successor
servicer all documents and records in its possession in electronic or other form
reasonably requested by the successor servicer to enable the successor servicer
to assume such Master Servicer's functions hereunder and the transfer to the
Trustee or such successor servicer of all amounts which shall at the time be or
should have been deposited by such Master Servicer in the applicable Certificate
Account and any other account or fund maintained with respect to the
Certificates or thereafter be received by such Master Servicer with respect to
the Mortgage Loans. Neither the Trustee nor any other successor servicer shall
be deemed to be in default hereunder by reason of any failure to make, or any
delay in making, any distribution hereunder or any portion thereof caused by (i)
the failure of the terminated Master Servicer to deliver, or any delay in
delivering, cash, documents or records to it, or (ii) restrictions imposed by
any regulatory authority having jurisdiction over such Master Servicer. The
Trustee shall be reimbursed for all of its out-of-pocket expenses incurred in
connection with obtaining such successor Master Servicer by the Trust within 30
days of the Trustee's submission of an invoice with respect thereto, to the
extent such expenses have not been reimbursed by the terminated Master Servicer
as provided herein; such expenses paid by the Trust shall be deemed to be an
Additional Trust Expense.
(c) On and after the time a Special Servicer is terminated pursuant
to this Agreement, in accordance with Section 9.30, the Trustee shall be the
successor in all respects to such Special Servicer in its capacity under this
Agreement and the transactions set forth or provided for therein and shall,
subject to Section 9.21(d), have all the rights and powers and be subject to all
the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on such Special Servicer by the terms and provisions of this
Agreement; provided that, any failure to perform such duties or responsibilities
caused by such Special Servicer's failure to provide required information shall
not be considered a default by the Trustee hereunder. In addition, the Trustee
shall have no liability relating to (i) the representations and warranties of
such Special Servicer contained in this Agreement or (ii) any obligation
incurred by such Special Servicer prior to its termination or resignation. In
the Trustee's capacity as such successor, the Trustee shall have the same
limitations on liability granted to such Special Servicer in this Agreement. As
compensation therefor, the Trustee shall, subject to Section 9.21(d), be
entitled to receive all the compensation payable to such Special Servicer set
forth in this Agreement, including, without limitation the Special Servicer
Compensation.
(d) Notwithstanding the above, the Trustee may, if the Trustee shall
be unwilling to so act, or shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any established
commercial or multifamily mortgage finance institution, special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
and meeting such other standards for a successor Special Servicer as are set
forth in Section 9.21, and with respect to which Rating Agency Confirmation is
obtained, as the successor to the terminated Special Servicer hereunder in the
assumption of all of the responsibilities, duties or liabilities of a Special
Servicer hereunder. Pending any such appointment, the Trustee shall act in such
capacity as hereinabove provided. Any entity designated by the Trustee as
successor Special Servicer may be an Affiliate of the Trustee; provided that
such Affiliate must meet the standards for a successor Special Servicer set
forth herein. In connection with such appointment and assumption, the Trustee
may make such arrangements for the compensation of such successor, subject to
Section 9.21(d), out of payments on Mortgage Loans as it and such successor
shall agree; provided that no such compensation shall be in excess of that
permitted to the terminated Special Servicer under this Agreement. The Trustee
and such successor shall take such actions, consistent with this Agreement as
shall be necessary to effectuate any such succession. The terminated Special
Servicer shall cooperate with the Trustee and any successor Special Servicer in
effecting the termination of such Special Servicer's responsibilities and rights
under this Agreement, including, without limitation, notifying Mortgagors of
Specially Serviced Mortgage Loans of the assignment of the special servicing
function and providing the Trustee and successor Special Servicer all documents
and records in its possession in electronic or other form reasonably requested
by the successor Special Servicer to enable the successor Special Servicer to
assume such Special Servicer's functions hereunder and the transfer to the
Trustee or such successor Special Servicer of all amounts which shall at the
time be or should have been deposited by the terminated Special Servicer in the
applicable Certificate Account and any other account or fund maintained with
respect to the Certificates or thereafter be received by such Special Servicer
with respect to the Mortgage Loans. Neither the Trustee nor any other successor
Special Servicer shall be deemed to be in default hereunder by reason of any
failure to make, or any delay in making, any distribution hereunder or any
portion thereof caused by (i) the failure of the terminated Special Servicer to
deliver, or any delay in delivering, cash, documents or records to it, or (ii)
restrictions imposed by any regulatory authority having jurisdiction over such
Special Servicer. The Trustee shall be reimbursed for all of its out-of-pocket
expenses incurred in connection with obtaining such successor Special Servicer
by the Trust within 30 days of submission of an invoice with respect thereto but
only to the extent such expenses have not been reimbursed by the terminated
Special Servicer as provided herein; and such expenses paid by the Trust shall
be deemed to be an Additional Trust Expense.
Section 7.15 Notification to Holders
Upon termination of a Master Servicer, the Paying Agent or a Special
Servicer, or appointment of a successor to such Master Servicer, the Paying
Agent or such Special Servicer, the Trustee shall promptly mail notice thereof
by first class mail to the Rating Agencies, the Operating Adviser, the Sellers
and the Certificateholders at their respective addresses appearing on the
Certificate Register.
Section 7.16 Representations and Warranties of the Trustee and the
Paying Agent
(a) The Trustee hereby represents and warrants as of the date hereof
that:
(i) the Trustee is a national banking association, duly organized,
validly existing and in good standing under the laws governing its
creation and existence and has full power and authority to own its
property, to carry on its business as presently conducted, and to enter
into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Trustee of this Agreement
have been duly authorized by all necessary action on the part of the
Trustee; neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated in this Agreement, nor
compliance with the provisions of this Agreement, will conflict with or
result in a breach of, or constitute a default under, (i) any of the
provisions of any law, governmental rule, regulation, judgment, decree or
order binding on the Trustee or its properties that would materially and
adversely affect the Trustee's ability to perform its obligations under
this Agreement, (ii) the organizational documents of the Trustee, or (iii)
the terms of any material agreement or instrument to which the Trustee is
a party or by which it is bound; the Trustee is not in default with
respect to any order or decree of any court or any order, regulation or
demand of any federal, state, municipal or other governmental agency,
which default would materially and adversely affect its performance under
this Agreement;
(iii) the execution, delivery and performance by the Trustee of this
Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of,
the giving of notice to or the registration with any state, federal or
other governmental authority or agency, except such as has been or will be
obtained, given, effected or taken in order for the Trustee to perform its
obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by the
Trustee and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and
(v) no litigation is pending or, to the Trustee's knowledge,
threatened, against the Trustee that, either in one instance or in the
aggregate, would draw into question the validity of this Agreement, or
which would be likely to impair materially the ability of the Trustee to
perform under the terms of this Agreement.
(b) The Paying Agent hereby represents and warrants as of the date
hereof that:
(i) the Paying Agent is a national banking association, duly
organized, validly existing and in good standing under the laws governing
its creation and existence and has full power and authority to own its
property, to carry on its business as presently conducted, and to enter
into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Paying Agent of this
Agreement have been duly authorized by all necessary action on the part of
the Paying Agent; neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated in this Agreement,
nor compliance with the provisions of this Agreement, will conflict with
or result in a breach of, or constitute a default under, (i) any of the
provisions of any law, governmental rule, regulation, judgment, decree or
order binding on the Paying Agent or its properties that would materially
and adversely affect the Paying Agent's ability to perform its obligations
under this Agreement, (ii) the organizational documents of the Paying
Agent, or (iii) the terms of any material agreement or instrument to which
the Paying Agent is a party or by which it is bound; the Paying Agent is
not in default with respect to any order or decree of any court or any
order, regulation or demand of any federal, state, municipal or other
governmental agency, which default would materially and adversely affect
its performance under this Agreement;
(iii) the execution, delivery and performance by the Paying Agent of
this Agreement and the consummation of the transactions contemplated by
this Agreement do not require the consent, approval, authorization or
order of, the giving of notice to or the registration with any state,
federal or other governmental authority or agency, except such as has been
or will be obtained, given, effected or taken in order for the Paying
Agent to perform its obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by the
Paying Agent and, assuming due authorization, execution and delivery by
the other parties hereto, constitutes a valid and binding obligation of
the Paying Agent, enforceable against the Paying Agent in accordance with
its terms, subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium and other similar laws
affecting creditors' rights generally as from time to time in effect, and
to general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law); and
(v) there are no actions, suits or proceeding pending or, to the
best of the Paying Agent's knowledge, threatened, against the Paying Agent
that, either in one instance or in the aggregate, would draw into question
the validity of this Agreement, or which would be likely to impair
materially the ability of the Paying Agent to perform under the terms of
this Agreement.
Section 7.17 Fidelity Bond and Errors and Omissions Insurance
Policy Maintained by the Trustee and the Paying Agent
Each of the Trustee and the Paying Agent, at its own respective
expense, shall maintain in effect a Fidelity Bond and a Errors and Omissions
Insurance Policy. The Errors and Omissions Insurance Policy and Fidelity Bond
shall be issued by a Qualified Insurer in form and in amount customary for
trustees or paying agents in similar transactions (unless the Trustee or the
Paying Agent, as the case may be, self insures as provided below). In the event
that any such Errors and Omissions Insurance Policy or Fidelity Bond ceases to
be in effect, the Trustee or the Paying Agent, as the case may be, shall obtain
a comparable replacement policy or bond from an insurer or issuer meeting the
requirements set forth above as of the date of such replacement. So long as the
long-term debt rating of the Trustee or the Paying Agent, as the case may be, is
not less than "A" as rated by S&P and "Baa1" as rated by Xxxxx'x, if rated by
S&P and Xxxxx'x, respectively, the Trustee or the Paying Agent, as the case may
be, may self-insure for the Fidelity Bond and the Errors and Omissions Insurance
Policy.
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties
(a) Subject to the express provisions of this Agreement, for and on
behalf of the Trust and for the benefit of the Certificateholders as a whole,
the Master Servicers shall service and administer the Mortgage Loans in
accordance with the Servicing Standard and the terms of this Agreement. The
General Master Servicer shall be the Master Servicer with respect to all the
Mortgage Loans (other than the NCB, FSB Loans) and other assets in the Trust
(other than the NCB, FSB Trust Assets) and, as such, shall service and
administer such assets as shall be required of the Master Servicer hereunder
with respect to such Trust assets. The NCB Master Servicer shall be the Master
Servicer with respect to the NCB, FSB Trust Assets and, as such, shall service
and administer the NCB, FSB Trust Assets as shall be required of such Master
Servicer hereunder with respect to the NCB, FSB Trust Assets.
In connection with such servicing and administration, each Master
Servicer shall service in accordance with the Servicing Standard; provided,
however, that nothing herein contained shall be construed as an express or
implied guarantee by the applicable Master Servicer of the collectability of
payments on the Mortgage Loans or shall be construed as impairing or adversely
affecting any rights or benefits specifically provided by this Agreement to the
applicable Master Servicer, including with respect to Master Servicing Fees or
the right to be reimbursed for Advances.
(b) The applicable Master Servicer, in the case of an event
specified in clause (x) of this subclause (b), and the applicable Special
Servicer, in the case of an event specified in clause (y) of this subclause (b),
shall each send a written notice to the other and to the Trustee and the Paying
Agent, the Operating Adviser and the respective Seller within two Business Days
after becoming aware (x) that a Servicing Transfer Event has occurred with
respect to a Mortgage Loan or (y) that a Mortgage Loan has become a
Rehabilitated Mortgage Loan, which notice shall identify the applicable Mortgage
Loan and, in the case of an event specified in clause (x) of this subclause (b)
above, the Servicing Transfer Event that occurred.
(c) With respect to each Mortgage Loan that is subject to an
Environmental Insurance Policy, for as long as it is not a Specially Serviced
Mortgage Loan, if any of the applicable Master Servicer, the applicable Special
Servicer or the applicable Primary Servicer has actual knowledge of any event
giving rise to a claim under an Environmental Insurance Policy, such Person
shall notify the related Master Servicer, the related Special Servicer and the
related Primary Servicer, as applicable, 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. Any legal fees or other out-of-pocket costs incurred in
accordance with the Servicing Standard in connection with any such claim shall
be paid by, and reimbursable to, the applicable Master Servicer or the
applicable Special Servicer as a Servicing Advance.
(d) In connection with any extension of the Maturity Date of a
Mortgage Loan that is the subject of an Environmental Insurance Policy, the
applicable Master Servicer shall give prompt written notice of such extension to
the insurer under the Environmental Insurance Policy and shall execute such
documents as are reasonably required by such insurer to procure an extension of
such policy (if available).
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Master Servicers
Each Master Servicer, at its expense, shall maintain in effect a
Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance Policy. The
Servicer Errors and Omissions Insurance Policy and Servicer Fidelity Bond shall
be issued by a Qualified Insurer (unless a Master Servicer self insures as
provided below) and be in form and amount consistent with the Servicing
Standard. In the event that any such Servicer Errors and Omissions Insurance
Policy or Servicer Fidelity Bond ceases to be in effect, the applicable Master
Servicer shall obtain a comparable replacement policy or bond from an insurer or
issuer meeting the requirements set forth above as of the date of such
replacement. So long as the long-term rating of a Master Servicer (or its
corporate parent) is not in any event less than "A" as rated by S&P and "Baa1"
as rated by Xxxxx'x, respectively, such Master Servicer may self-insure for the
Servicer Fidelity Bond and the Servicer Errors and Omissions Insurance Policy.
Section 8.3 Master Servicers' General Power and Duties
(a) Each Master Servicer shall service and administer the Mortgage
Loans it is required to service hereunder and shall, subject to Sections 8.7,
8.18, 8.19, 8.27 and 9.39 and Article XII hereof and as otherwise provided
herein and by the Code, have full power and authority to do any and all things
which it may deem necessary or desirable in connection with such servicing and
administration in accordance with the Servicing Standard. To the extent
consistent with the foregoing and subject to any express limitations and
provisions set forth in this Agreement, such power and authority shall include,
without limitation, the right, subject to the terms hereof, (A) to execute and
deliver, on behalf of the Certificateholders and the Trustee, customary consents
or waivers and other instruments and documents (including, without limitation,
estoppel certificates, financing statements, continuation statements, title
endorsements and reports and other documents and instruments necessary to
preserve and maintain the lien on the related Mortgaged Property and related
collateral), (B) to consent to assignments and assumptions or substitutions, and
transfers of interest of any Mortgagor, in each case subject to and in
accordance with the terms of the related Mortgage Loan and Section 8.7, (C) to
collect any Insurance Proceeds, (D) subject to Section 8.7, to consent to any
subordinate financings to be secured by any related Mortgaged Property to the
extent that such consent is required pursuant to the terms of the related
Mortgage or which otherwise is required, and, subject to Section 8.7, to consent
to any mezzanine debt to the extent such consent is required pursuant to the
terms of the related Mortgage; (E) to consent to the application of any proceeds
of insurance policies or condemnation awards to the restoration of the related
Mortgaged Property or otherwise and to administer and monitor the application of
such proceeds and awards in accordance with the terms of the Mortgage Loan as
the applicable Master Servicer deems reasonable under the circumstances, (F) to
execute and deliver, on behalf of the Certificateholders and the Trustee,
documents relating to the management, operation, maintenance, repair, leasing
and marketing of the related Mortgaged Properties, including agreements and
requests by the Mortgagor with respect to modifications of the standards of
operation and management of the Mortgaged Properties or the replacement of asset
managers; provided, however, that with respect to the Mortgage Loans identified
on the Mortgage Loan Schedule as 1875 K Street, Equitable Plaza Building and Six
Penn Center, the General Master Servicer shall, to the extent permitted under
the related Mortgage Loan documents, obtain a Rating Agency Confirmation at the
expense of the related Mortgagor (if the related Mortgage Loan documents provide
that the Mortgagor shall pay such expense) or else at the expense of the Trust
as an Additional Trust Fund Expense in connection with the replacement of any
related asset or property manager, (G) to consent to any operation or action
under a Mortgage Loan that is contemplated or permitted under a Mortgage or
other documents evidencing or securing the applicable Mortgage Loan (either as a
matter of right or upon satisfaction of specified conditions), (H) to obtain,
release, waive or modify any term other than a Money Term of a Mortgage Loan and
related documents subject to and to the extent permitted by Section 8.18, (I) to
exercise all rights, powers and privileges granted or provided to the holder of
the Mortgage Notes under the terms of the Mortgage, including all rights of
consent or approval thereunder, (J) to enter into lease subordination
agreements, non-disturbance and attornment agreements or other leasing or rental
arrangements which may be requested by the Mortgagor or the Mortgagor's tenants,
(K) to join the Mortgagor in granting, modifying or releasing any easements,
covenants, conditions, restrictions, equitable servitudes, or land use or zoning
requirements with respect to the Mortgaged Properties to the extent such does
not adversely affect the value of the related Mortgage Loan or Mortgaged
Property, (L) to execute and deliver, on behalf of itself, the Trustee, the
Trust or any of them, any and all instruments of satisfaction or cancellation,
or of partial or full release or discharge and all other comparable instruments,
with respect to the Mortgage Loans and with respect to the Mortgaged Properties,
and (M) cause to be held on behalf of the Trustee, in accordance with the terms
of any Mortgage Loan and this Agreement, Defeasance Collateral. The foregoing
clauses (A) through (M) are referred to collectively as "Master Servicer Consent
Matters." In addition, each Master Servicer, consistent with the Servicing
Standard, may waive any default interest and Late Fees with respect to its
Mortgage Loans that are not Specially Serviced Mortgage Loans; provided that, to
the extent the applicable Master Servicer waives any default interest and Late
Fees, any outstanding Advance Interest with respect to the related Mortgage Loan
that would otherwise have been paid out of such default interest and Late Fees
shall be paid out of the additional servicing compensation payable to such
Master Servicer with respect to that Mortgage Loan; and provided, further, that
if no additional servicing compensation is available to offset the outstanding
Advance Interest with respect to the Mortgage Loan that would otherwise be
offset by the default interest and Late Fees, then the applicable Master
Servicer shall not waive such default interest and Late Fees unless it is the
first such waiver with respect to the subject Mortgage Loan.
Notwithstanding the above, the Master Servicers shall have no power
to (i) waive any Prepayment Premiums or (ii) consent to any modification of a
Money Term. In addition, subject to the Servicing Standard, the Master Servicers
shall not accept any prepayment of principal with respect to any Mortgage Loan
on any date other than the related Due Date unless (i) such payment is
accompanied by a payment of the interest due with respect to such Mortgage Loan
up to the next succeeding Due Date, (ii) such prepayment does not result in the
Trust incurring a Prepayment Interest Shortfall or (iii) such prepayment is
required to be permitted under the related Mortgage Loan documents on a date
other than the related Due Date. Nothing contained in this Agreement shall limit
the ability of the Master Servicers to lend money to (to the extent not secured,
in whole or in part, by any Mortgaged Property, except for a Co-op Mortgage Loan
as to which the NCB, FSB Subordinate Debt Conditions have been satisfied in
which case a subordinate loan may be secured by a mortgage lien on the related
Mortgaged Property), accept deposits from and otherwise generally engage in any
kind of business or dealings with any Mortgagor as though the Master Servicer
were not a party to this Agreement or to the transactions contemplated hereby;
provided, however, that this sentence shall not modify the Servicing Standard.
(b) No Master Servicer shall be obligated to service and administer
the Mortgage Loans which have become and continue to be Specially Serviced
Mortgage Loans, except as specifically provided herein. Such Master Servicer
shall be required to make all calculations and prepare all reports required
hereunder with respect to such Specially Serviced Mortgage Loans (other than
calculations and reports expressly required to be made by the applicable Special
Servicer hereunder) as if no Servicing Transfer Event had occurred and shall
continue to collect all Scheduled Payments, make Servicing Advances as set forth
herein, make P&I Advances as set forth herein and render such incidental
services with respect to such Specially Serviced Mortgage Loans, all as are
specifically provided for herein, but shall have no other servicing or other
duties with respect to such Specially Serviced Mortgage Loans. Each Master
Servicer shall give notice within three Business Days to the applicable Special
Servicer of any collections it receives from any Specially Serviced Mortgage
Loans, subject to changes agreed upon from time to time by such Special Servicer
and such Master Servicer. Each Special Servicer shall instruct within one
Business Day after receiving such notice the applicable Master Servicer on how
to apply such funds. The applicable Master Servicer within one Business Day
after receiving such instructions shall apply such funds in accordance with the
applicable Special Servicer's instructions. Each Mortgage Loan that becomes a
Specially Serviced Mortgage Loan shall continue as such until such Mortgage Loan
becomes a Rehabilitated Mortgage Loan. No Master Servicer shall be required to
initiate extraordinary collection procedures or legal proceedings with respect
to any Mortgage Loan or to undertake any pre-foreclosure procedures.
(c) Concurrently with the execution of this Agreement, the Trustee
shall sign the Powers of Attorney attached hereto as Exhibit S-1A and Exhibit
S-1B. The Master Servicer, shall promptly notify the Trustee of the recording of
any document on behalf of the Trustee under such Power-of-Attorney. From time to
time until the termination of the Trust, upon receipt of additional unexecuted
powers of attorney from the Master Servicers or the Special Servicers, the
Trustee shall execute and return to any Master Servicer, any Special Servicer or
any Primary Servicer any additional powers of attorney and other documents
necessary or appropriate to enable such Master Servicer and such Special
Servicer to service and administer the Mortgage Loans including, without
limitation, documents relating to the management, operation, maintenance,
repair, leasing or marketing of the Mortgaged Properties. Each Master Servicer
shall indemnify the Trustee for any costs, liabilities and expenses (including
attorneys' fees) incurred by the Trustee in connection with the intentional or
negligent misuse of such power of attorney by a Master Servicer. Notwithstanding
anything contained herein to the contrary, neither the Master Servicers nor the
Special Servicers shall, without the Trustee's written consent: (i) initiate any
action, suit or proceeding directly relating to the servicing of the Mortgage
Loans solely under the Trustee's name without indicating the Master Servicer's
or Special Servicer's, as applicable, representative capacity, (ii) initiate any
other action, suit or proceeding not directly relating to the servicing of the
Mortgage Loans (including but not limited to actions, suits or proceedings
against Certificateholders, or against the Depositor or the Sellers for breaches
of representations and warranties) solely under the Trustee's name, (iii) engage
counsel to represent the Trustee in any action, suit or proceeding not directly
related to the servicing of the Mortgage Loans (including but not limited to
actions, suits or proceedings against Certificateholders, or against the
Depositor or the Sellers for breaches of representations and warranties, or (iv)
prepare, execute or deliver any government filings, forms, permits,
registrations or other documents or take any other actions with the intent to
cause, and that actually causes, the Trustee to be registered to do business in
any state. The limitations of the preceding clause shall not be construed to
limit any duty or obligation imposed on the Trustee under any other provision of
this Agreement.
(d) Each Master Servicer shall make efforts consistent with the
Servicing Standard and the terms of this Agreement to collect all payments
called for under the terms and provisions of the applicable Mortgage Loans
(other than Specially Serviced Mortgage Loans or REO Properties).
(e) Each Master Servicer (or any Primary Servicer on its behalf)
shall segregate and hold all funds collected and received pursuant to any
Mortgage Loan constituting Escrow Amounts separate and apart from any of its own
funds and general assets and shall establish and maintain one or more segregated
custodial accounts (each, an "Escrow Account") into which all Escrow Amounts
shall be deposited within one Business Day after receipt. Each Escrow Account
shall be an Eligible Account except with respect to Mortgage Loans identified on
Schedule VII for which Escrow Accounts shall be transferred to Eligible Accounts
at the earliest date permitted under the related Mortgage Loan documents. Each
Master Servicer shall also deposit into each applicable Escrow Account any
amounts representing losses on Eligible Investments pursuant to the immediately
succeeding paragraph and any Insurance Proceeds or Liquidation Proceeds which
are required to be applied to the restoration or repair of any Mortgaged
Property pursuant to the related Mortgage Loan. Each Escrow Account shall be
maintained in accordance with the requirements of the related Mortgage Loan and
in accordance with the Servicing Standard. Withdrawals from an Escrow Account
may be made only:
(i) to effect timely payments of items constituting Escrow Amounts
for the related Mortgage Loan;
(ii) to transfer funds to the applicable Certificate Account (or any
sub-account thereof) to reimburse the applicable Master Servicer for any
Advance (or the Trust for any Unliquidated Advance) relating to Escrow
Amounts, but only from amounts received with respect to the related
Mortgage Loan which represent late collections of Escrow Amounts
thereunder;
(iii) for application to the restoration or repair of the related
Mortgaged Property in accordance with the related Mortgage Loan and the
Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the termination
of this Agreement or pay-off of the related Mortgage Loan;
(v) to pay from time to time to the related Mortgagor any interest
or investment income earned on funds deposited in the applicable Escrow
Account if such income is required to be paid to the related Mortgagor
under applicable law or by the terms of the Mortgage Loan, or otherwise to
the applicable Master Servicer; and
(vi) to remove any funds deposited in a Escrow Account that were not
required to be deposited therein or to refund amounts to the Mortgagors
determined to be overages.
Subject to the immediately succeeding two sentences, (i) each Master
Servicer may direct any depository institution or trust company in which the
applicable Escrow Accounts are maintained to invest the funds held therein in
one or more Eligible Investments; provided, however, that such funds shall be
either (x) immediately available or (y) available in accordance with a schedule
which will permit such Master Servicer to meet the payment obligations for which
the applicable Escrow Account was established; (ii) each Master Servicer shall
be entitled to all income and gain realized from any such investment of funds as
additional servicing compensation; and (iii) each Master Servicer shall deposit
from its own funds in the applicable Escrow Account the amount of any loss
incurred in respect of any such investment of funds on or before the next Master
Servicer Remittance Date. The Master Servicers shall not direct the investment
of funds held in any Escrow Account and retain the income and gain realized
therefrom if the terms of the related Mortgage Loan or applicable law permit the
Mortgagor to be entitled to the income and gain realized from the investment of
funds deposited therein, and the Master Servicers shall not be required to
invest amounts on deposit in applicable Escrow Accounts in Eligible Investments
or Eligible Accounts to the extent that the Master Servicers are required by
either law or under the terms of any related Mortgage Loan to deposit or invest
(or the Mortgagor is entitled to direct the deposit or investment of) such
amounts in another type of investments or accounts. In the event a Master
Servicer is not entitled to direct the investment of such funds, (1) such Master
Servicer shall direct the depository institution or trust company in which such
Escrow Accounts are maintained to invest the funds held therein in accordance
with the Mortgagor's written investment instructions, if the terms of the
related Mortgage Loan or applicable law require such Master Servicer to invest
such funds in accordance with the Mortgagor's directions; and (2) in the absence
of appropriate written instructions from the Mortgagor, the Master Servicers
shall have no obligation to, but may be entitled to, direct the investment of
such funds; provided, however, that in either event (i) such funds shall be
either (y) immediately available or (z) available in accordance with a schedule
which will permit the Master Servicers to meet the payment obligations for which
the applicable Escrow Account was established, and (ii) the Master Servicers
shall have no liability for any loss in investments of such funds that are
invested pursuant to written instructions from the Mortgagor.
(f) The relationship of each of the Master Servicers and the Special
Servicers to the Trustee and the Paying Agent and to each other under this
Agreement is intended by the parties to be that of an independent contractor and
not of a joint venturer, partner or agent.
(g) With respect to each Mortgage Loan, if required by the terms of
the related Mortgage Loan, any Lock-Box Agreement or similar agreement, the
applicable Master Servicer shall establish and maintain, in accordance with the
Servicing Standard, one or more lock-box, cash management or similar accounts
("Lock-Box Accounts") to be held outside the Trust and maintained by such Master
Servicer in accordance with the terms of the related Mortgage. No Lock-Box
Account is required to be an Eligible Account, unless otherwise required
pursuant to the related Mortgage Loan documents. The applicable Master Servicer
shall apply the funds deposited in such accounts in accordance with terms of the
related Mortgage Loan documents, any Lock-Box Agreement and in accordance with
the Servicing Standard.
(h) The applicable Master Servicer or any Primary Servicer on its
behalf shall process all defeasances of Mortgage Loans in accordance with the
terms of the Mortgage Loan documents, and shall be entitled to any fees paid
relating thereto. The applicable Master Servicer shall not permit defeasance (or
partial defeasance if permitted under the Mortgage Loan) of any Mortgage Loan on
or before the second anniversary of the Closing Date unless such defeasance will
not result in an Adverse REMIC Event and such Master Servicer has received an
opinion of counsel to such effect and all items in the following sentence have
been satisfied. Subsequent to the second anniversary of the Closing Date, the
applicable Master Servicer, in connection with the defeasance of a Mortgage Loan
shall require (to the extent it is not inconsistent with the Servicing Standard)
that: (i) the defeasance collateral consists of "government securities" as
defined in the 1940 Act, subject to Rating Agency approval, (ii) such Master
Servicer has received evidence satisfactory to it, that the defeasance will not
result in an Adverse REMIC Event, (iii) either (A) the related Mortgagor
designates a Single-Purpose Entity (if the Mortgagor no longer complies) to own
the Defeasance Collateral (subject to customary qualifications) or (B) such
Master Servicer has established a Single-Purpose Entity to hold all Defeasance
Collateral relating to the Defeasance Loans (in its corporate capacity and not
as agent of or on behalf of the Trust or the Trustee), (iv) such Master Servicer
has requested and received from the Mortgagor (A) an opinion of counsel that the
Trustee will have a perfected, first priority security interest in such
Defeasance Collateral and (B) written confirmation from a firm of independent
accountants stating that payments made on such Defeasance Collateral in
accordance with the terms thereof will be sufficient to pay the subject Mortgage
Loan (or the defeased portion thereof in connection with a partial defeasance)
in full on or before its Maturity Date (or, in the case of the ARD Loan, on or
before its Anticipated Repayment Date) and to timely pay each subsequent
Scheduled Payment, (v) (A) such Master Servicer shall receive a Rating Agency
Confirmation if the Mortgage Loan (together with any other Mortgage Loan with
which it is cross-collateralized) has a Principal Balance greater than the
lesser of $20,000,000 and 5% of the Aggregate Certificate Balance (or such
higher threshold as shall be published by S&P), unless such Rating Agency has
waived in writing such Rating Agency Confirmation requirement or (B) if the
Mortgage Loan is less than or equal to both of the amounts set forth in clause
(A), either a Notice and Certification in the form attached hereto as Exhibit Z
(or such less restrictive form as shall be adopted by S&P) or a Rating Agency
Confirmation is received from S&P and (vi) a Rating Agency Confirmation is
received if the Mortgage Loan is one of the ten largest Mortgage Loans, by
Principal Balance. Any customary and reasonable out-of-pocket expense incurred
by the applicable Master Servicer pursuant to this Section 8.3(h) shall be paid
by the Mortgagor of the Defeasance Loan pursuant to the related Mortgage,
Mortgage Note or other pertinent document, if so allowed by the terms of such
documents.
The parties hereto acknowledge that, if a Seller shall have breached
the representation set forth under the heading "Releases of Mortgaged Property"
in Exhibit 2 to the Mortgage Loan Purchase Agreements, regarding the obligations
of a Mortgagor to pay the costs of a tax opinion associated with the full or
partial release or substitution of collateral for a Mortgage Loan because the
related Mortgage Loan documents do not require the related Mortgagor to pay
costs related thereto, to the extent an amount is due and not paid by the
Mortgagor, then the sole obligation of the related Seller shall be to pay for
such tax opinion. In addition, the parties hereto acknowledge that, if a Seller
shall have breached the representation set forth under the heading "Defeasance
and Assumption Costs" in Exhibit 2 to the Mortgage Loan Purchase Agreements,
regarding the obligation of a Mortgagor to pay the reasonable costs and expenses
associated with a defeasance or assumption of the related Mortgage Loan, because
the related Mortgage Loan documents do not require the related Mortgagor to pay
costs related thereto, including, but not limited to, amounts owed to one or
both Rating Agencies, then the sole obligation of the related Seller shall be to
pay an amount equal to such insufficiency or expense to the extent the related
Mortgagor is not required to pay such amount. Promptly upon receipt of notice of
such insufficiency or unpaid expenses or costs, the applicable Master Servicer
shall request the related Seller to make such payment by deposit to the
applicable Certificate Account. The related Seller shall have no obligation to
pay for any of the foregoing costs if the applicable Mortgagor has an obligation
to pay for such costs.
In the case of a Specially Serviced Mortgage Loan, the applicable
Master Servicer shall process any defeasance of such Specially Serviced Mortgage
Loan in accordance with the original terms of the respective Mortgage Loan
documents following a request by the applicable Special Servicer that such
Master Servicer do so, which request shall be accompanied by a waiver of any
condition of defeasance that an "event of default" under such Specially Serviced
Mortgage Loan not have occurred or be continuing, and such Master Servicer shall
be entitled to any fees paid relating to such defeasance. If such "event of
default" is on account of an uncured payment default, the applicable Special
Servicer will process the defeasance of such Specially Serviced Mortgage Loan,
and such Special Servicer shall be entitled to any fees paid relating to such
defeasance.
(i) The applicable Master Servicer shall, as to each Mortgage Loan
which is secured by the interest of the related Mortgagor under a ground lease,
confirm whether or not on or prior to the date that is thirty (30) days after
receipt of the related Servicer Mortgage File by such Master Servicer (or
Primary Servicer, if applicable), the Seller has notified the related ground
lessor of the transfer of such Mortgage Loan to the Trust pursuant to this
Agreement, and informed such ground lessor that any notices of default under the
related Ground Lease should thereafter be forwarded to such Master Servicer (as
evidenced by delivery of a copy thereof to such Master Servicer). Such Master
Servicer shall promptly notify the ground lessor if the Seller has failed to do
so by the thirtieth day after the Closing Date.
Section 8.4 Primary Servicing and Sub-Servicing
(a) The parties hereto (A) acknowledge that the General Master
Servicer has delegated certain of its obligations and assigned certain of its
rights under this Agreement to each of the Primary Servicers pursuant to the
respective Primary Servicing Agreements and the IXIS Sub-Servicer pursuant to
the IXIS Sub-Servicing Agreement and (B) agree: (1) in addition to those
obligations specifically delegated by the General Master Servicer to the Primary
Servicers under the applicable Primary Servicing Agreement and the IXIS
Sub-Servicer under the IXIS Sub-Servicing Agreement, each Primary Servicer and
(if so provided in the related Sub-Servicing Agreement) each Sub-Servicer shall
also perform the General Master Servicer's obligations set forth in Section
2.1(d) of this Agreement as such Section relates to the Mortgage Loans serviced
by it; (2) in addition to those rights specifically granted by the General
Master Servicer to the Primary Servicers under the applicable Primary Servicing
Agreement or any Sub-Servicer under the applicable Sub-Servicing Agreement,
those rights set forth in Section 8.24 hereof accruing to the benefit of the
General Master Servicer shall also accrue to the benefit of the Primary
Servicers and each Sub-Servicer; (3) any indemnification or release from
liability set forth in this Agreement accruing to the benefit of the General
Master Servicer shall also, to the extent applicable, benefit the Primary
Servicers and each Sub-Servicer; and (4) for each notice, certification, report,
schedule, statement or other type of writing that a party hereto is obligated to
deliver to the General Master Servicer in respect of Mortgage Loans for which a
Primary Servicer or Sub-Servicer has been engaged, such party shall deliver to
each of the applicable Primary Servicers or the applicable Sub-Servicer a copy
of such notice, certification, report, schedule, statement or other type of
writing at the time and in the same manner that any of the foregoing is required
to be delivered to the General Master Servicer.
Notwithstanding the provisions of any Primary Servicing Agreement,
the Sub-Servicing Agreement or any other provisions of this Agreement, the
Master Servicers shall remain obligated and liable to the Trustee, the Paying
Agent, the Special Servicers and the Certificateholders for servicing and
administering of the Mortgage Loans in accordance with the provisions of this
Agreement to the same extent as if the applicable Master Servicer was alone
servicing and administering the Mortgage Loans; provided, however, the foregoing
shall not in any way limit or impair the indemnification provisions benefiting
the Master Servicer in Section 8.25. The Master Servicer or applicable Primary
Servicer shall supervise, administer, monitor, enforce and oversee the servicing
of the applicable Mortgage Loans by any Sub-Servicer appointed by it. Other than
with respect to the agreements with the Primary Servicers or the Sub-Servicers
under agreements that are in effect as of the Closing Date, the terms of any
arrangement or agreement between the Master Servicer or applicable Primary
Servicer, on the one hand, and a Sub-Servicer, on the other, shall provide that
such sub-servicing agreement or arrangement may be terminated, without cause
(or, with respect to a sub-servicing agreement concerning the UCMFI Loans, with
cause only, provided that "cause" will be determined in the same manner as cause
is determined with respect to a Master Servicer pursuant to this Agreement) and
without the payment of any termination fees, by the Trustee in the event such
applicable Master Servicer or the applicable Primary Servicer is terminated in
accordance with this Agreement or the applicable Primary Servicing Agreement. In
addition, none of the Special Servicers, the Trustee, the Paying Agent or the
Certificateholders shall have any direct obligation or liability (including,
without limitation, indemnification obligations) with respect to any
Sub-Servicer. The applicable Master Servicer or applicable Primary Servicer
shall pay the costs of enforcement against any of its Sub-Servicers at its own
expense, but shall be reimbursed therefor only (i) from a general recovery
resulting from such enforcement only to the extent that such recovery exceeds
all amounts due in respect of the related Mortgage Loans or (ii) from a specific
recovery of costs, expenses or attorneys fees against the party against whom
such enforcement is directed. Notwithstanding the provisions of any Primary
Servicing Agreement or any sub-servicing agreement, any of the provisions of
this Agreement relating to agreements or arrangements between a Master Servicer,
a Primary Servicer or a Sub-Servicer, or reference to actions taken through a
Sub-Servicer or otherwise, the applicable Master Servicer, or applicable Primary
Servicer shall remain obligated and liable to the Trustee, the Paying Agent, the
applicable Special Servicer and the Certificateholders for the servicing and
administering of the applicable Mortgage Loans in accordance with (and subject
to the limitations contained within) the provisions of this Agreement or the
applicable Primary Servicing Agreement without diminution of such obligation or
liability by virtue of indemnification from a Sub-Servicer and to the same
extent and under the same terms and conditions as if the applicable Master
Servicer or applicable Primary Servicer alone were servicing and administering
the Mortgage Loans.
(b) Subject to the limitations of subsection (a), the Master
Servicers or any Primary Servicer may appoint one or more sub-servicers (each,
along with the IXIS Sub-Servicer, a "Sub-Servicer") to perform all or any
portion of its duties hereunder for the benefit of the Trustee and the
Certificateholders, provided, however, that any decision or recommendation
involving the exercise of a Primary Servicer's discretion as a "lender" under
any loan document with respect to a Mortgage Loan shall be exercised only by the
Primary Servicer and may not be delegated to a Sub-Servicer.
The General Master Servicer shall enter into a Primary Servicing
Agreement with each Primary Servicer and the IXIS Sub-Servicing Agreement with
the IXIS Sub-Servicer Agreement and shall not terminate such agreement except in
accordance with the terms thereof. To the extent consistent with the rights of a
Primary Servicer or a Sub-Servicer under this Agreement and the related Primary
Servicing Agreement or Sub-Servicing Agreement, but not in limitation of any
other rights granted to a Primary Servicer or a Sub-Servicer in this Agreement
and/or in the Primary Servicing Agreement or a Sub-Servicing Agreement, such
Primary Servicer or Sub-Servicer shall have all of the rights and obligations of
a Sub-Servicer set forth herein.
Notwithstanding any other provision set forth in this Agreement to
the contrary, (i) each Primary Servicer's and each Sub-Servicer's rights and
obligations under its respective Primary Servicing Agreement or Sub-Servicing
Agreement shall expressly survive a termination of the applicable Master
Servicer's servicing rights under this Agreement; provided that the applicable
Primary Servicing Agreement or Sub-Servicing Agreement has not been terminated
in accordance with its provisions, (ii) any successor Master Servicer,
including, without limitation, the Trustee (if it assumes the servicing
obligations of the terminated Master Servicer) shall be deemed to automatically
assume and agree to each of the then current Primary Servicing Agreements or
Sub-Servicing Agreement without further action upon becoming the successor
Master Servicer and (iii) this Agreement may not be modified in any manner which
would increase the obligations or limit the rights of any Primary Servicer or
any Sub-Servicer hereunder and/or under the applicable Primary Servicing
Agreement or the Sub-Servicing Agreement, without the prior written consent of
such Primary Servicer or the Sub-Servicer (which consent shall not be
unreasonably withheld).
If a task, right or obligation of the General Master Servicer is
delegated to a Primary Servicer under a Primary Servicing Agreement, and such
task, right or obligation involves or requires the consent of the General
Special Servicer, then such Special Servicer shall accept the performance of
such task, right or obligation by such Primary Servicer in accordance with the
terms of this Agreement (including without limitation any time periods for
consent or deemed consent to be observed by such Special Servicer) as if the
General Master Servicer were performing it.
Notwithstanding any provision of this Agreement, each of the parties
hereto acknowledges and agrees that the Special Servicers, in such capacity, are
neither a party to any Primary Servicing Agreement or Sub-Servicing Agreement,
nor are they bound by any provision of any Primary Servicing Agreement or the
Sub-Servicing Agreement in its capacity as Special Servicer. The Special
Servicers hereby acknowledge the delegation of rights and duties hereunder by
the General Master Servicer pursuant to the provisions of the Primary Servicing
Agreements and the Sub-Servicing Agreements in effect on the date hereof.
Section 8.5 Servicers May Own Certificates
Any Master Servicer and any Primary Servicer and any agent of the
Master Servicers or Primary Servicers in its individual or any other capacity
may become the owner or pledgee of Certificates with the same rights it would
have if it were not such Master Servicer, such Primary Servicer or such agent.
Any such interest of any Master Servicer or any Primary Servicer or such agent
in the Certificates shall not be taken into account when evaluating whether
actions of such Master Servicer are consistent with its obligations in
accordance with the Servicing Standard regardless of whether such actions may
have the effect of benefiting the Class or Classes of Certificates owned by such
Master Servicer.
Section 8.6 Maintenance of Hazard Insurance, Other Insurance and
Taxes
Subject to the limitations set forth below, each Master Servicer
shall use reasonable efforts consistent with the Servicing Standard to cause the
related Mortgagor to maintain for each Mortgaged Property (other than any REO
Property) (A) a Standard Hazard Insurance Policy which does not provide for
reduction due to depreciation in an amount that is at least equal to the lesser
of (i) the full replacement cost of improvements securing such Mortgage Loan or
(ii) the outstanding Principal Balance of such Mortgage Loan but, in any event,
in an amount sufficient to avoid the application of any co insurance clause, (B)
any terrorism insurance coverage for a Mortgage Loan, which the related
Mortgagor is required to maintain under the related Mortgage, to the extent that
such insurance is available at a commercially reasonable rate and (C) any other
insurance coverage for a Mortgage Loan which the related Mortgagor is required
to maintain under the related Mortgage; provided the applicable Master Servicer
shall not be required to maintain earthquake insurance on any Mortgaged Property
required by the related Mortgage unless such insurance was required at
origination and is available at a commercially reasonable rate; provided,
however, that the applicable Special Servicer shall have the right, but not the
duty, to obtain, at the Trust's expense, earthquake insurance on any Mortgaged
Property securing a Specially Serviced Mortgage Loan or an REO Property so long
as such insurance is available at a commercially reasonable rate; provided,
further, that a determination by a Master Servicer that terrorism insurance is
not available at a commercially reasonable rate shall be subject to the approval
of the Operating Adviser as set forth below. If the related Mortgagor does not
maintain the insurance set forth in clauses (A), (B) and (C) above, then the
applicable Master Servicer shall cause to be maintained such insurance with a
Qualified Insurer and the payment of the cost of such insurance shall be a
Servicing Advance; provided, that a determination by a Master Servicer that
terrorism insurance should not be obtained on a force-placed basis shall be
subject to the approval of the Operating Adviser as set forth below. Upon a
Master Servicer's determination that terrorism insurance is not available at a
commercially reasonable rate or that terrorism insurance should not be obtained
on a force-placed basis, such Master Servicer shall notify the Operating
Adviser. The Operating Adviser shall have five days after such notice to
disapprove such determination. The failure of the Operating Adviser to provide
notice of such disapproval in such time period shall be deemed approval. If the
Operating Adviser provides such notice of disapproval within such time period,
the Master Servicer shall obtain such insurance coverage and the cost of such
insurance coverage shall be considered a Servicing Advance.
Each Standard Hazard Insurance Policy maintained with respect to any
Mortgaged Property that is not an REO Property shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. If, on the
date of origination, the improvements on the Mortgaged Property are located in a
designated special flood hazard area by the Federal Emergency Management Agency
in the Federal Register, as amended from time to time (to the extent permitted
under the related Mortgage Loan or as required by law), the applicable Master
Servicer (with respect to any Mortgaged Property that is not an REO Property)
shall cause flood insurance to be maintained. Such flood insurance shall be in
an amount equal to the lesser of (i) the unpaid principal balance of the related
Mortgage Loan or (ii) the maximum amount of such insurance available for the
related Mortgaged Property under the national flood insurance program, if the
area in which the improvements on the Mortgaged Property are located is
participating in such program. Any amounts collected by the applicable Master
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the related Mortgaged Property or property thus
acquired or amounts released to the Mortgagor in accordance with the terms of
the applicable Mortgage Loan) shall be deposited in the applicable Certificate
Account.
Any cost (such as insurance premiums and insurance broker fees but
not internal costs and expenses of obtaining such insurance) incurred by a
Master Servicer in maintaining any insurance pursuant to this Section 8.6 shall
not, for the purpose of calculating monthly distributions to the
Certificateholders or remittances to the Paying Agent for their benefit, be
added to the Principal Balance of the Mortgage Loan, notwithstanding that the
terms of the Mortgage Loan permit such cost to be added to the outstanding
Principal Balance thereof. Such costs shall be paid as a Servicing Advance by
such Master Servicer, subject to Section 4.4 hereof.
Notwithstanding the above, a Master Servicer shall have no
obligation beyond using its reasonable efforts consistent with the Servicing
Standard to enforce such insurance requirements. Furthermore, a Master Servicer
shall not be required in any event to maintain or obtain insurance coverage to
the extent the Trustee as mortgagee does not have an insurable interest or
beyond what is reasonably available at a commercially reasonable rate and
consistent with the Servicing Standard. Each Master Servicer shall notify the
Trustee in the event it makes such determination. Notwithstanding the foregoing,
such determination shall be subject to the approval of the Operating Adviser
with respect to terrorism insurance, as set forth in the first paragraph of this
Section 8.6. In addition, each Master Servicer shall be entitled to rely at its
own expense on insurance consultants in connection with any such determination.
In no event shall the Master Servicer be required to obtain any insurance
coverage that would require a Servicing Advance that constitutes a
Nonrecoverable Advance.
Each Master Servicer shall conclusively be deemed to have satisfied
its obligations as set forth in this Section 8.6 either (i) if such Master
Servicer shall have obtained and maintained a master force placed or blanket
insurance policy insuring against hazard losses on all of the applicable
Mortgage Loans, it being understood and agreed that such policy may contain a
deductible clause on terms substantially equivalent to those commercially
available and maintained by comparable servicers consistent with the Servicing
Standard, and provided that such policy is issued by a Qualified Insurer or (ii)
if such Master Servicer, provided that its or its parent's long-term rating is
not less than "A" by S&P and "A2" by Xxxxx'x, self-insures for its obligations
as set forth in the first paragraph of this Section 8.6. In the event that a
Master Servicer shall cause any Mortgage Loan to be covered by such a master
force placed or blanket insurance policy, the incremental cost of such insurance
allocable to such Mortgage Loan (i.e., other than any minimum or standby premium
payable for such policy whether or not any Mortgage Loan is then covered
thereby), if not borne by the related Mortgagor, shall be paid by such Master
Servicer as a Servicing Advance. If such policy contains a deductible clause,
the applicable Master Servicer shall, if there shall not have been maintained on
the related Mortgaged Property a policy complying with this Section 8.6 and
there shall have been a loss that would have been covered by such policy,
deposit in the applicable Certificate Account the amount not otherwise payable
under such master force placed or blanket insurance policy because of such
deductible clause to the extent that such deductible exceeds (i) the deductible
under the related Mortgage Loan or (ii) if there is no deductible limitation
required under the Mortgage Loan, the deductible amount with respect to
insurance policies generally available on properties similar to the related
Mortgaged Property which is consistent with the Servicing Standard, and deliver
to the Trustee an Officer's Certificate describing the calculation of such
amount. In connection with its activities as administrator and servicer of the
Mortgage Loans, the applicable Master Servicer agrees to present, on its behalf
and on behalf of the Trustee, claims under any such master force placed or
blanket insurance policy.
With respect to each Mortgage Loan, the applicable Master Servicer
shall maintain accurate records with respect to each related Mortgaged Property
reflecting the status of taxes, assessments and other similar items that are or
may become a lien on the related Mortgaged Property and the status of insurance
premiums payable with respect thereto. From time to time, the applicable Master
Servicer (other than with respect to REO Mortgage Loans) shall, except in the
case of Mortgage Loans under which Escrow Amounts are not held by the applicable
Master Servicer (i) obtain all bills for the payment of such items (including
renewal premiums), and (ii) effect payment of all such bills, taxes and other
assessments with respect to such Mortgaged Properties prior to the applicable
penalty or termination date, in each case employing for such purpose Escrow
Amounts as allowed under the terms of the related Mortgage Loan. If a Mortgagor
fails to make any such payment on a timely basis or collections from the
Mortgagor are insufficient to pay any such item before the applicable penalty or
termination date, the applicable Master Servicer in accordance with the
Servicing Standard shall use its reasonable efforts to pay as a Servicing
Advance the amount necessary to effect the payment of any such item prior to
such penalty or termination date (or, with respect to real estate taxes, prior
to the earlier of the imposition of late tax payment penalty charges or the
notice of intent to create a tax lien on the Mortgaged Property), subject to
Section 4.4 hereof. No costs incurred by the Master Servicers or the Trustee, as
the case may be, in effecting the payment of taxes and assessments on the
Mortgaged Properties and related insurance premiums and ground rents shall, for
the purpose of calculating distributions to Certificateholders, be added to the
Principal Balance of the Mortgage Loans, notwithstanding that the terms of such
Mortgage Loans permit such costs to be added to the outstanding principal
balances of such Mortgage Loans.
Section 8.7 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Due-On-Encumbrance Clause
(a) In the event a Master Servicer receives a request from a
Mortgagor pursuant to the provisions of any Mortgage Loan (other than a
Specially Serviced Mortgage Loan) that expressly permits, subject to any
conditions set forth in the Mortgage Loan documents, the assignment of the
related Mortgaged Property to, and assumption of such Mortgage Loan by, another
Person, such Master Servicer (or, if applicable, a Primary Servicer) shall
obtain relevant information for purposes of evaluating such request and no
Special Servicer shall have an obligation to review or consent to such request.
For the purpose of the foregoing sentence, the term "expressly permits" shall
include outright permission to assign, permission to assign upon satisfaction of
certain conditions or prohibition against assignment except upon the
satisfaction of stated conditions. With respect to each Mortgage Loan that does
not "expressly permit" an assignment or assumption, if such Master Servicer (or,
if such Mortgage Loan is serviced by a Primary Servicer, the Primary Servicer)
recommends to approve such assignment, the Master Servicer shall provide to the
applicable Special Servicer and the Operating Adviser (or, with respect to a
recommendation by the Primary Servicer, to the applicable Master Servicer, the
Special Servicer and the Operating Adviser, simultaneously) a copy of such
recommendation and the materials upon which such recommendation is based (which
information shall consist of the information to be included in the Assignment
and Assumption Submission to the applicable Special Servicer, in the form
attached hereto as Exhibit U) and all other information related to such
assignment and assumption in its possession reasonably requested by the Special
Servicer and (A) the applicable Special Servicer shall have the right hereunder
to grant or withhold consent to any such request for such assignment and
assumption in accordance with the terms of the Mortgage Loan and this Agreement,
and such Special Servicer shall not unreasonably withhold such consent and any
such decision of such Special Servicer shall be in accordance with the Servicing
Standard, (B) failure of the applicable Special Servicer to notify the Master
Servicer in writing within ten Business Days following such Master Servicer's or
the applicable Primary Servicer's delivery of the recommendation described above
and the Assignment and Assumption Submission to the Special Servicer on which
the recommendation is based, of its determination to grant or withhold such
consent shall be deemed to constitute a grant of such consent; provided, that,
if the applicable Special Servicer reasonably requests additional information
from the Master Servicer or Primary Servicer, as applicable, on which to base
its decision, the foregoing ten Business Day period in which the Special
Servicer has to consent to the Assignment and Assumption Submission shall cease
to run on the Business Day on which the Special Servicer makes such request and
shall resume to run on the Business Day on which the Special Servicer receives
such additional information, and (C) the Master Servicer or Primary Servicer
shall not permit any such assignment or assumption unless it has received the
written consent of the applicable Special Servicer or such consent has been
deemed to have been granted as described in the preceding clause (B). The
Special Servicers hereby acknowledge the delegation of rights and duties
hereunder by the Master Servicers pursuant to the provisions of each Primary
Servicing Agreement. If a Special Servicer withholds consent pursuant to the
provisions of this Agreement, it shall provide the applicable Master Servicer or
any applicable Primary Servicer with a written statement and a verbal
explanation as to its reasoning and analysis within the time frame specified in
(B) of the preceding sentence. Upon consent or deemed consent by such Special
Servicer to such proposed assignment and assumption, the applicable Master
Servicer or Primary Servicer, as applicable, shall process such request of the
related Mortgagor and shall be authorized to enter into an assignment and
assumption or substitution agreement with the Person to whom the related
Mortgaged Property has been or is proposed to be conveyed, and/or release the
original Mortgagor from liability under the related Mortgage Loan and substitute
as obligor thereunder the Person to whom the related Mortgaged Property has been
or is proposed to be conveyed; provided, however, that the applicable Master
Servicer shall not enter into any such agreement to the extent that any terms
thereof would result in an Adverse REMIC Event or create any lien on a Mortgaged
Property that is senior to, or on parity with, the lien of the related Mortgage.
In the event that the applicable Master Servicer shall require a
Nondisqualification Opinion in order to process a request for a substitution,
such Master Servicer shall use its reasonable efforts in accordance with the
Servicing Standard to collect the related costs, expenses and fees from the
Mortgagor to the extent the related Mortgage Loan documents require the related
Mortgagor to pay such amounts. To the extent permitted by applicable law, the
Master Servicers shall not enter into such an assumption or substitution
agreement unless the credit status of the prospective new Mortgagor is in
conformity to the terms of the related Mortgage Loan. In making its
recommendation, the Master Servicers shall evaluate such conformity in
accordance with the Servicing Standard. The Master Servicers shall not condition
approval of any request for assumption of a Mortgage Loan on an increase in the
interest rate of such Mortgage Loan. Each Master Servicer shall notify the
Trustee, the Paying Agent, the applicable Special Servicer and the Operating
Adviser of any assignment and assumption or substitution agreement executed
pursuant to this Section 8.7(a). Each Master Servicer, as applicable, shall be
entitled to (as additional servicing compensation) 50% of any assumption fee
collected from a Mortgagor in connection with an assignment and assumption or
substitution of a non-Specially Serviced Mortgage Loan (except that such Master
Servicer shall be entitled to 100% of such fee in connection with (a) any
assignment and assumption or substitution with respect to which the consent of
the Special Servicer was not required or (b) any assignment and assumption or
substitution that is "expressly permitted" pursuant to the terms of the related
Mortgage Loan), as executed pursuant to this Section 8.7(a) and the applicable
Special Servicer shall be entitled to (as additional special servicing
compensation) the other 50% of such fee relating to the non-Specially Serviced
Mortgage Loans (except with respect to the Mortgage Loans with respect to which
such Special Servicer's consent was not required in connection therewith or with
respect to any assignment and assumption or substitution that is not "expressly
permitted" pursuant to the terms of the related Mortgage Loan); provided that
any such fees payable to a Master Servicer pursuant to this paragraph shall be
divided between such Master Servicer and any related Primary Servicer as set
forth in the applicable Primary Servicing Agreement.
The General Special Servicer acknowledges that the General Master
Servicer has delegated certain tasks, rights and obligations to the Primary
Servicers of the UCMFI Loans, the SunTrust Loans and the MM Loans and with
respect to Post-Closing Requests (as defined in the applicable Primary Servicing
Agreements) pursuant to Section 8.4 of this Agreement. Such Primary Servicing
Agreements classify certain Post-Closing Requests as Category 1 Requests (as
defined in the Primary Servicing Agreements), and grant the related Primary
Servicers certain authority to evaluate and process such requests in accordance
with this Agreement, the applicable Primary Servicing Agreement and the
applicable Mortgage Loan documents.
With respect to a Category 1 Request that involves a condition, term
or provision that requires, or specifies a standard of, consent or approval of
the applicable Mortgagee under the Mortgage Loan documents, the Primary
Servicing Agreements for the UCMFI Loans, the SunTrust Loans and the MM Loans
provide for the General Master Servicer's (or, with respect to the MM Loans and
the SunTrust Loans, the Primary Servicer's) determination of materiality of such
condition, term or provision requiring approval or consent and the referral of
such condition, term or provision to the General Special Servicer for consent in
accordance with the terms of the applicable Primary Servicing Agreements upon a
determination of materiality. The General Special Servicer hereby acknowledges
such provisions. Nothing in this Agreement, however, shall grant the Primary
Servicers for the UCMFI Loans, the SunTrust Loans or the MM Loans greater
authority, discretion or delegated rights over Post-Closing Requests than are
set forth in the applicable Primary Servicing Agreement.
In addition, the General Special Servicer acknowledges that the
General Master Servicer has delegated certain tasks, rights and obligations to
the Primary Servicers of the UCMFI Loans, the SunTrust Loans and the MM Loans
with respect to enforcement of due-on-sale clauses, assumption agreements and
due-on-encumbrance clauses pursuant to Section 8.4 of this Agreement. Such
Primary Servicing Agreement grants the Primary Servicer certain authority to
evaluate and process certain requests with respect thereto in accordance with
this Agreement or the applicable Primary Servicing Agreement and the applicable
Mortgage Loan documents; provided however, that no such authority to evaluate
and process certain requests shall be in contravention of the immediately
preceding paragraph. Such Primary Servicer is not required to obtain the consent
of the General Master Servicer with respect to requests for transfers that are
expressly permitted pursuant to the applicable Mortgage Loan documents. With
respect to other requests specified in the related Primary Servicing Agreement
that require the approval of the General Special Servicer and subject to the
terms and provisions of the related Primary Servicing Agreement, the Primary
Servicer may forward its recommendation directly to the Special Servicer (with a
copy to the General Master Servicer) or it may forward its recommendation with
respect to such request to the General Master Servicer. The General Master
Servicer shall use reasonable efforts to forward such recommendation to the
General Special Servicer within five (5) Business Days of receipt thereof after
which the General Special Servicer shall inform the General Master Servicer and
the applicable Primary Servicer of its decision on or prior to the date on which
the General Special Servicer's time to respond has lapsed.
In addition, the Special Servicer acknowledges that, pursuant to the
Sub-Servicing Agreement, the Master Servicer has delegated certain tasks, rights
and obligations with respect to the IXIS Loans to the IXIS Sub-Servicer.
(b) Reserved.
(c) Neither the Master Servicers nor the Special Servicers shall
have any liability, and shall be indemnified by the Trust for any liability to
the Mortgagor or the proposed assignee, for any delay in responding to requests
for assumption, if the same shall occur as a result of the failure of the Rating
Agencies, or any of them, to respond to such request in a reasonable period of
time.
(d) If any Mortgage Loan that is not a Specially Serviced Mortgage
Loan contains a provision in the nature of a "due-on-sale" clause, which by its
terms (i) provides that such Mortgage Loan shall (or may at the mortgagee's
option) become due and payable upon the sale or other transfer of an interest in
the related Mortgaged Property or ownership interest in the related Mortgagor,
or (ii) provides that such Mortgage Loan may not be assumed or ownership
interests in the related Mortgagor may not be transferred without the consent of
the related mortgagee in connection with any such sale or other transfer, then,
the applicable Master Servicer's review and determination (such determination to
be approved by the applicable Special Servicer in the same manner as in Section
8.7(a)) to either (A) enforce such due-on-sale clause (unless, with respect to
the MM Loans, such enforcement is not permitted pursuant to the related Mortgage
Loan documents) or (B) if in the best economic interest of the Trust, waive the
effect of such provision, shall be processed in the same manner as in Section
8.7(a); provided, however, that if the Principal Balance of such Mortgage Loan
(together with any other Mortgage Loan with which it is cross-collateralized) at
such time equals or exceeds 5% of the Aggregate Certificate Balance or exceeds
$35,000,000 or is one of the then current top 10 loans (by Principal Balance) in
the pool, then prior to waiving the effect of such provision, the applicable
Master Servicer shall obtain Rating Agency Confirmation regarding such waiver.
In connection with the request for such consent, such Master Servicer shall
prepare and deliver to S&P and Xxxxx'x a memorandum outlining its analysis and
recommendation in accordance with the Servicing Standard, together with copies
of all relevant documentation. Each Master Servicer shall promptly forward
copies of the assignment and assumption documents relating to any Mortgage Loan
to the applicable Special Servicer, the Paying Agent and the Trustee, and such
Master Servicer shall promptly thereafter forward such documents to the Rating
Agencies. The applicable Special Servicer and the applicable Master Servicer
shall each be entitled to (as additional compensation) 50% of any fee collected
from a Mortgagor in connection with the granting or withholding such consent
with respect to Mortgage Loans that are not Specially Serviced Mortgage Loans;
provided, that with respect to the UCMFI Loans, the applicable Special Servicer
shall only be entitled to 50% of such fee if such Special Servicer's consent was
required in connection therewith; provided, further, that such fees that are
allocated to a Master Servicer pursuant hereto shall be divided between such
Master Servicer and any applicable Primary Servicer as set forth in the related
Primary Servicing Agreement.
(e) Each Master Servicer, as applicable, shall have the right to
consent to any transfers of an interest in a Mortgagor of a Mortgage Loan that
is not a Specially Serviced Mortgage Loan, to the extent such transfer is to a
party or entity specifically named or described under the terms of the related
Mortgage Loan, and the NCB Master Servicer shall be permitted to consent to any
transfer of an interest in a Mortgagor under a Co-op Loan in connection with a
transfer of cooperative units therein to the extent such consent is required
under the terms of the related Mortgage Loan, in each case including any consent
to transfer to any subsidiary or Affiliate of Mortgagor, to a Person acquiring
less than a majority interest in the Mortgagor or to an entity of which the
Mortgagor is the controlling beneficial owner; provided, however, that if (i)
the Principal Balance of such Mortgage Loan (together with any other Mortgage
Loan with which it is cross-collateralized) at such time equals or exceeds 5% of
the Aggregate Certificate Balance or is one of the then current top 10 loans (by
Principal Balance) in the pool (provided that such Mortgage Loan has a then
current Principal Balance of $5,000,000 or more), and (ii) the transfer is of an
equity interest in the Mortgagor greater than 49%, then prior to consenting,
such Master Servicer shall obtain a Rating Agency Confirmation regarding such
consent, the costs of which to be payable by the related Mortgagor to the extent
provided for in the Mortgage Loan documents. Each Master Servicer, as
applicable, shall be entitled to collect and receive from Mortgagors any
customary fees in connection with such transfers of interest as additional
servicing compensation to the extent such Master Servicer's collection of such
fees is not expressly prohibited under the related loan documents for the
Mortgage Loan.
(f) The Trustee for the benefit of the Certificateholders shall
execute any necessary instruments in the form presented to it by the applicable
Master Servicer (pursuant to subsection (a) or (d)) for such assignments and
assumptions agreements. Upon the closing of the transactions contemplated by
such documents, the applicable Master Servicer shall cause the originals of the
assignment and assumption agreement, the release (if any), or the modification
or supplement to the Mortgage Loan to be delivered to the Trustee except to the
extent such documents have been submitted to the recording office, in which
event such Master Servicer shall promptly deliver copies of such documents to
the Trustee and the applicable Special Servicer.
(g) If any Mortgage Loan (other than a Specially Serviced Mortgage
Loan or a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt
Conditions have been satisfied) which contains a provision in the nature of a
"due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property or
a lien on the ownership interest in the Mortgagor; or
(ii) requires the consent of the Mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property,
then, as long as such Mortgage Loan is included in the Trust, the applicable
Master Servicer, on behalf of the Trustee as the Mortgagee of record, shall
exercise (or, subject to Section 8.18, waive its right to exercise) any right it
may have with respect to such Mortgage Loan (x) to accelerate the payments
thereon, or (y) to withhold its consent to the creation of any such additional
lien or other encumbrance, in a manner consistent with the Servicing Standard,
sub-section (h) below and Section 8.18 hereof. The applicable Master Servicer
shall not waive the effect of such provision without first obtaining Rating
Agency Confirmation regarding such waiver and complying with the provisions of
the next succeeding paragraph; provided, however, that such Rating Agency
Confirmation shall only be required if the applicable Mortgage Loan (x)
represents 2% or more of the Principal Balance of all of the Mortgage Loans held
by the Trust or is one of the 10 largest Mortgage Loans based on Principal
Balance or (y) such Mortgage Loan (which includes Junior Indebtedness, if any)
that is greater than or equal to 85% and a Debt Service Coverage Ratio (which
includes debt service on any Junior Indebtedness) that is less than 1.2x.
(h) Without limiting the generality of the preceding paragraph, in
the event that a Master Servicer receives a request for a waiver of any
"due-on-encumbrance" clause under any Mortgage Loan (other than a Co-op Mortgage
Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied),
the applicable Master Servicer shall obtain relevant information for purposes of
evaluating such request for a waiver. If the applicable Master Servicer
recommends to waive such clause, such Master Servicer shall provide to the
applicable Special Servicer a copy of such recommendation and the materials upon
which such recommendation is based (which information shall consist of the
information to be included in the Additional Lien, Monetary Encumbrance and
Mezzanine Financing Submission Package to such Special Servicer, in the form
attached hereto as Exhibit V and any other information in its possession
reasonably requested by such Special Servicer) and (A) the applicable Special
Servicer shall have the right hereunder to grant or withhold consent to any such
request in accordance with the terms of the Mortgage Loan and this Agreement,
and such Special Servicer shall not unreasonably withhold such consent and any
such decision of such Special Servicer shall be in accordance with the Servicing
Standard, (B) failure of the applicable Special Servicer to notify the
applicable Master Servicer in writing, within ten Business Days following such
Master Servicer's delivery of the recommendation described above and the
complete Additional Lien, Monetary Encumbrance and Mezzanine Financing
Submission Package and any other information in its possession reasonably
requested by such Special Servicer to such Special Servicer on which the
recommendation is based, of its determination to grant or withhold such consent
shall be deemed to constitute a grant of such consent and (C) the applicable
Master Servicer shall not permit any such waiver unless it has received the
written consent of the applicable Special Servicer or such consent has been
deemed to have been granted as described in the preceding sentence. If the
applicable Special Servicer withholds consent pursuant to the foregoing
provisions, it shall provide the applicable Master Servicer with a written
statement and a verbal explanation as to its reasoning and analysis. Upon
consent or deemed consent by the applicable Special Servicer to such proposed
waiver, the applicable Master Servicer shall process such request of the related
Mortgagor subject to the other requirements set forth above.
(i) The parties hereto acknowledge that, if a Seller shall have
breached the representation set forth under the heading "Defeasance and
Assumption Costs" in Exhibit 2 to the Mortgage Loan Purchase Agreements,
regarding the obligation of a Mortgagor to pay the reasonable costs and expenses
of obtaining any Rating Agency Confirmation in connection with an assumption or
defeasance of the related Mortgage Loan because the related mortgage loan
documents do not require the Mortgagor to pay costs related thereto, then it
shall be the sole obligation of the related Seller to pay an amount equal to
such insufficiency to the extent the related Mortgagor is not required to pay
such amount. Promptly upon receipt of notice of such insufficiency, the
applicable Master Servicer or the applicable Special Servicer, as applicable,
shall request the related Seller to make such payment by deposit to the
applicable Certificate Account. The applicable Master Servicer may not waive
such payment by the Mortgagor (and then seek payment for such costs and expenses
from the Seller) and shall use its reasonable efforts to collect such amounts
from the Mortgagor to the extent the related mortgage loan documents require the
related Mortgagor to pay such amounts.
(j) Notwithstanding the foregoing, and regardless of whether a
particular Co-op Mortgage Loan contains specific provisions regarding the
incurrence of subordinate debt, or prohibits the incurrence of subordinate debt,
or requires the consent of the Mortgagee in order to incur subordinate debt, the
NCB Master Servicer may, nevertheless, in accordance with the Servicing
Standard, without the need to obtain any consent hereunder (and without the need
to obtain a Rating Agency Confirmation), permit the related Borrower to incur
subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met (as
certified in writing to the Trustee and the Operating Advisor by the NCB Master
Servicer no later than five Business Days prior to the making of the subject
subordinate loan without right of reimbursement from the Trust) which
certification shall include notice of the circumstances of the waiver, including
information necessary for the Operating Advisor to determine whether the NCB,
FSB Subordinate Debt Conditions have been satisfied; provided, that, subject to
the related Mortgage Loan documents and applicable law, the NCB Master Servicer
shall not waive any right it has, or grant any consent it is otherwise entitled
to withhold, in accordance with any related "due-on-encumbrance" clause under
any Mortgage Loan, pursuant to this paragraph, unless in any such case, all
associated costs and expenses are covered without any expense to the Trust.
(k) Notwithstanding the foregoing, in the event a Master Servicer
(or, if applicable, a Primary Servicer) receives a request from a Mortgagor
under a UCMFI Loan pursuant to the provisions of any such Mortgage Loan (other
than a UCMFI Loan that is a Specially Serviced Mortgage Loan) that expressly
permits, subject to any conditions set forth in the Mortgage Loan documents, the
incurrence of any subordinate or mezzanine debt, such Master Servicer (or, if
applicable, a Primary Servicer) shall obtain relevant information for purposes
of evaluating and processing such request and no Special Servicer shall have an
obligation to review or consent to such request. For the purpose of the
foregoing sentence, the term "expressly permits" shall include outright
permission to incur subordinate or mezzanine debt upon satisfaction of certain
conditions.
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files
Upon the payment in full of any Mortgage Loan, the complete
defeasance of a Mortgage Loan, satisfaction or discharge in full of any
Specially Serviced Mortgage Loan or the receipt by a Master Servicer of a
notification that payment in full (or such payment, if any, in connection with
the satisfaction and discharge in full of any Specially Serviced Mortgage Loan)
will be escrowed in a manner customary for such purposes, and upon notification
by the applicable Master Servicer in the form of a certification (which
certification shall include a statement to the effect that all amounts received
or to be received in connection with such payment which are required to be
deposited in the applicable Certificate Account have been or will be so
deposited) of a Servicing Officer and a request for release of the Trustee
Mortgage File in the form of Exhibit C hereto the Trustee shall promptly release
the related Trustee Mortgage File to the applicable Master Servicer and the
Trustee shall execute and deliver to such Master Servicer the deed of
reconveyance or release, satisfaction or assignment of mortgage or such
instrument releasing the lien of the Mortgage, as directed by such Master
Servicer together with the Mortgage Note. The provisions of the immediately
preceding sentence shall not, in any manner, limit or impair the right of the
Master Servicers to execute and deliver, on behalf of the Trustee, the
Certificateholders or any of them, any and all instruments of satisfaction,
cancellation or assignment without recourse, representation or warranty, or of
partial or full release or discharge and all other comparable instruments, with
respect to the Mortgage Loans, and with respect to the Mortgaged Properties held
for the benefit of the Certificateholders. No expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the Distribution Account but shall be paid by the applicable Master Servicer
except to the extent that such expenses are paid by the related Mortgagor in a
manner consistent with the terms of the related Mortgage and applicable law.
From time to time and as shall be appropriate for the servicing of any Mortgage
Loan, including for such purpose, collection under any policy of flood
insurance, any Servicer Fidelity Bond or Errors and Omissions Policy, or for the
purposes of effecting a partial or total release of any Mortgaged Property from
the lien of the Mortgage or the making of any corrections to the Mortgage Note
or the Mortgage or any of the other documents included in the Trustee Mortgage
File, the Trustee shall, upon request of the applicable Master Servicer and the
delivery to the Trustee of a Request for Release signed by a Servicing Officer,
in the form of Exhibit C hereto, release the Trustee Mortgage File to such
Master Servicer or the applicable Special Servicer, as the case may be.
Section 8.9 Documents, Records and Funds in Possession of the
Master Servicers to Be Held for the Trustee for the Benefit of the
Certificateholders
Notwithstanding any other provisions of this Agreement, each Master
Servicer shall transmit to the Trustee, to the extent required by this
Agreement, all documents and instruments coming into the possession of such
Master Servicer from time to time and shall account fully to the Trustee and the
Paying Agent for any funds received or otherwise collected thereby, including
Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan. All
Servicer Mortgage Files and funds collected or held by, or under the control of,
each Master Servicer in respect of such Mortgage Loans, whether from the
collection of principal and interest payments or from Liquidation Proceeds or
Insurance Proceeds, including any funds on deposit in the applicable Certificate
Accounts, shall be held by the applicable Master Servicer for and on behalf of
the Trustee and the Certificateholders and shall be and remain the sole and
exclusive property of the Trustee, subject to the applicable provisions of this
Agreement. Each Master Servicer agrees that it shall not create, incur or
subject any Servicer Mortgage Files or Trustee Mortgage File or any funds that
are deposited in the Certificate Accounts or the applicable Escrow Accounts, or
any funds that otherwise are or may become due or payable to the Trustee or the
Paying Agent, to any claim, lien, security interest, judgment, levy, writ of
attachment or other encumbrance, or assert by legal action or otherwise any
claim or right of setoff against any Servicer Mortgage Files or Trustee Mortgage
File or any funds collected on, or in connection with, a Mortgage Loan, except,
however, that the Master Servicers shall be entitled to receive from any such
funds any amounts that are properly due and payable to the Master Servicers
under this Agreement.
Section 8.10 Servicing Compensation
(a) As compensation for its activities hereunder, each Master
Servicer shall be entitled to the Master Servicing Fee and the General Master
Servicer shall be entitled to the Primary Servicing Fee (except with respect to
the NCB, FSB Loans), which shall be payable by the Trust from amounts held in
the applicable Certificate Accounts or otherwise collected from the Mortgage
Loans and REO Loans as provided in Section 5.2. The General Master Servicer
shall be required to pay to the Primary Servicers the related Primary Servicing
Fees (except with respect to the NCB, FSB Loans), which shall be payable by the
Trust from amounts as provided in Section 5.1(c), unless retained by the Primary
Servicers from amounts transferred to the General Master Servicer in accordance
with the terms of the Primary Servicing Agreements. The Master Servicers shall
be required to pay to the holders of the rights to the Excess Servicing Fees
(including, if applicable, the applicable Master Servicer), the Excess Servicing
Fees, which shall be payable by the Trust as provided in Section 5.1(c), unless
otherwise retained by the holders of such rights. Notwithstanding anything
herein to the contrary, if any of the holders of the right to receive Excess
Servicing Fees resigns or is no longer a Master Servicer or Primary Servicer (to
the extent that such Person was ever a Master Servicer or a Primary Servicer),
as applicable, for any reason, it will continue to have the right to receive its
portion of the Excess Servicing Fee, and any of the holders of the right to
receive Excess Servicing Fees shall have the right to assign its portion of the
Excess Servicing Fee, whether or not it is then acting as a Master Servicer or
Primary Servicer hereunder. The General Master Servicer shall also be entitled
to the Primary Servicing Fee (except with respect to the NCB, FSB Loans), which
shall be payable by the Trust from amounts held in the applicable Certificate
Account (or a sub-account thereof) or otherwise collected from the Mortgage
Loans as provided in Section 5.2, provided that the Primary Servicing Fee
payable to the General Master Servicer shall only be collected from the Mortgage
Loans set forth on Schedule III, Schedule IV and Schedule VI. There shall be no
Primary Servicing Fee payable with respect to the NCB, FSB Loans.
(b) Additional servicing compensation in the form of application
fees, assumption fees, extension fees, servicing fees, default interest payable
at a rate above the Mortgage Rate (net of any amount used to pay Advance
Interest, Additional Trust Fund Expenses, Special Servicing Fees, Liquidation
Fees and Workout Fees relating to the subject Mortgage Loan as provided in
Section 4.5), Modification Fees, forbearance fees, Late Fees (net of any amount
used to pay Advance Interest), other usual and customary charges and fees
actually received from Mortgagors and any other fees listed in any of the
Primary Servicing Agreements, all such fees subject to allocation pursuant to
such Primary Servicing Agreements, shall be retained by the applicable Master
Servicer, provided that the applicable Master Servicer shall be entitled to
receive (i) 50% of any assumption fees relating to Mortgage Loans which are not
Specially Serviced Mortgage Loans that require Special Servicer approval or 100%
of any assumption fees relating to Mortgage Loans which are not Specially
Serviced Mortgage Loans for which with respect to the assignment, assumption or
substitution (a) the consent of the Special Servicer was not required or (b) is
"expressly permitted" pursuant to the terms of the related Mortgage Loan as
payable under Section 8.7(a) or 8.7(d), (ii) 100% of application fees, default
interest (net of the default interest used to pay Advance Interest, as set forth
above), forbearance fees, Late Fees (net of any amount used to pay Advance
Interest) and Modification Fees on Mortgage Loans that are not Specially
Serviced Mortgage Loans as provided in Section 8.18 hereof; and (iii) 100% of
any modification or extension fees collected from the related Mortgagor in
connection with the extension of the Maturity Date of any Mortgage Loan as
provided in Section 8.18; provided, however, that the applicable Master Servicer
shall not be entitled to any such fees in connection with any Specially Serviced
Mortgage Loans and, such fees will be subject to the allocations set forth in
the Primary Servicing Agreements. If the applicable Master Servicer collects any
amount payable to the applicable Special Servicer hereunder in connection with
an REO Mortgage Loan or Specially Serviced Mortgage Loan, the applicable Master
Servicer shall promptly remit such amount to the applicable Special Servicer as
provided in Section 5.2. The applicable Master Servicer shall be required to pay
(in the manner otherwise provided herein) all applicable expenses incurred by it
in connection with its servicing activities hereunder.
(c) Notwithstanding any other provision herein, the Master Servicing
Fee payable to each Master Servicer for each monthly period relating to each
Determination Date shall be reduced by an amount equal to the Compensating
Interest (if any) relating to Mortgage Loans serviced by such Master Servicer
for such Determination Date.
(d) Each Master Servicer, as applicable, shall also be entitled to
additional servicing compensation of (i) an amount equal to the excess, if any,
of the aggregate Prepayment Interest Excess relating to its respective Mortgage
Loans (including any Specially Serviced Loans) for each Distribution Date over
the aggregate Prepayment Interest Shortfalls for such Mortgage Loans for such
Distribution Date, (ii) interest or other income earned on deposits in the
applicable Certificate Account and the Distribution Account (but only to the
extent of the net investment earnings, if any, with respect to each such
account), and, (iii) to the extent not required to be paid to any Mortgagor
under applicable law, any interest or other income earned on deposits in its
respective Escrow Accounts.
Section 8.11 Master Servicer Reports; Account Statements
(a) For each Distribution Date, (i) each Master Servicer shall
deliver to the Paying Agent on the related Report Date, the Loan Periodic Update
File with respect to such Distribution Date, (ii) each Master Servicer shall
report to the Paying Agent on the related Advance Report Date, the amount of any
P&I Advance to be made by such Master Servicer on the related Master Servicer
Remittance Date and (iii) each Master Servicer shall notify the Paying Agent as
soon as reasonably possible, but no later than noon, New York City time on the
Master Servicer Remittance Date, of the amount of any Principal Payments and
Balloon Payments received by the Business Day immediately preceding the Master
Servicer Remittance Date, which amounts were not reported pursuant to clause (i)
or (ii) immediately above. Each Special Servicer is required to provide, in the
form required under Section 9.32, all information relating to Specially Serviced
Mortgage Loans in order for the applicable Master Servicer to satisfy its duties
in this Section 8.11 not later than one Business Day prior to the date such
Master Servicer is required to distribute any report. Each Master Servicer shall
be entitled in good faith to rely on and shall have no liability for information
provided by third parties, including the Special Servicers.
(b) Each Master Servicer shall notify the Trustee and the Paying
Agent on or before the Closing Date of the initial location of the applicable
Certificate Accounts and, promptly following any change in location of any
Certificate Account, the new location thereof.
(c) Each Master Servicer shall promptly inform the applicable
Special Servicer of the name, account number, location and other necessary
information concerning the applicable Certificate Accounts in order to permit
such Special Servicer to make deposits therein.
(d) Reserved.
(e) Each Master Servicer shall deliver a copy of any reports or
information delivered to the Trustee or the Paying Agent pursuant to subsection
(a) or subsection (b) of this Section 8.11 to the Depositor, the applicable
Special Servicer, the Operating Adviser and each Rating Agency, in each case
upon request by such Person and only to the extent such reports and information
are not otherwise required to be delivered to such Person under any provision of
this Agreement.
(f) Notwithstanding any provision of this Agreement to the contrary,
the Master Servicers shall not have any obligation to deliver any statement,
notice or report that is then made available on such Master Servicer's website
or the Paying Agent's Website, provided that it has notified all parties
entitled to delivery of such reports, by electronic mail or other notice
provided in this Agreement, to the effect that such statements, notices or
reports shall thereafter be made available on such website from time to time.
(g) Each Master Servicer shall deliver or cause to be delivered to
the Paying Agent the following CMSA Reports with respect to the Mortgage Loans
serviced by such Master Servicer (and, if applicable, the related REO
Properties) providing the required information as of the related Determination
Date upon the following schedule: (i) a CMSA Comparative Financial Status Report
not later than each Report Date, commencing in December 2005; (ii) a CMSA
Operating Statement Analysis Report, the CMSA Financial File and the CMSA NOI
Adjustment Worksheet in accordance with Section 8.14 of this Agreement; (iii) a
CMSA Servicer Watch List in accordance with and subject to the terms of Section
8.11(h) on each Report Date, commencing in December 2005; (iv) a CMSA Loan Setup
File (with respect to the initial Distribution Date only) not later than the
Report Date in November 2005; (v) a CMSA Loan Periodic Update File not later
than each Report Date commencing in November 2005 (a November 2005 report will
be issued by the Master Servicer in the format and with the content as
reasonably agreed by the Master Servicer and the Trustee); (vi) a CMSA Property
File on each Report Date, commencing in December 2005; (vii) a CMSA Delinquent
Loan Status Report on each Report Date, commencing in December 2005; (viii) a
CMSA Historical Loan Modification and Corrected Mortgage Loan Report not later
than each Report Date, commencing in December 2005; (ix) a CMSA Historical
Liquidation Report not later than each Report Date, commencing in December 2005;
and (x) a CMSA REO Status Report on each Report Date, commencing in December
2005. In the case of the CMSA Property File, the CMSA Comparative Financial
Status Reports, the quarterly CMSA Operating Statement Analysis Report and
quarterly CMSA Financial File, with respect to the MM Loans, the Master Servicer
will only be required to deliver such reports at the level of frequency at which
the related Mortgagor is required to deliver the applicable financial
information to the lender (which generally is annually). The information that
pertains to Specially Serviced Mortgage Loans and REO Properties reflected in
such reports shall be based solely upon the reports delivered by the applicable
Special Servicer to the applicable Master Servicer in writing and on a computer
readable medium reasonably acceptable to the Master Servicers and such Special
Servicer on the date and in the form required under Section 9.32. The Master
Servicers' responsibilities under this Section 8.11(g) with respect to REO
Mortgage Loans and Specially Serviced Mortgage Loans shall be subject to the
satisfaction of the applicable Special Servicer's obligations under Section
9.32.
(h) If a Master Servicer delivers a notice of drawing to effect a
drawing on any letter of credit or debt service reserve account under which the
Trust has rights as the holder of any Mortgage Loan for purposes other than
payment or reimbursement of amounts contemplated in and by a reserve or escrow
agreement (other than after a default under an applicable Mortgage Loan), such
Master Servicer shall, within five Business Days following its receipt of the
proceeds of such drawing, deliver notice thereof to the applicable Special
Servicer, the Operating Adviser and the Paying Agent, which notice shall set
forth (i) the unpaid Principal Balance of such Mortgage Loan immediately before
and immediately after the drawing, and (ii) a brief description of the
circumstances that in such Master Servicer's good faith and reasonable judgment
and in compliance with the Servicing Standard entitled such Master Servicer to
make such drawing.
Section 8.12 Annual Statement as to Compliance
Each Master Servicer shall deliver to the Depositor, the Paying
Agent and the Trustee on or before March 20 of each year, commencing in March
2006, an Officer's Certificate stating, as to the signer thereof, that (A) a
review of the activities of such Master Servicer during the preceding calendar
year or portion thereof and of the performance of such Master Servicer under
this Agreement has been made under such officer's supervision and (B) to the
best of such officer's knowledge, based on such review, such Master Servicer has
fulfilled all its obligations under this Agreement in all material respects
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof. Each Master Servicer shall forward a copy of each
such statement to the Rating Agencies and the Operating Adviser, if any,
provided that neither the Master Servicers nor the Special Servicers shall be
required to deliver its Annual Performance Certification until May 15 in any
given year so long as it has received written confirmation from the Depositor or
the Trustee that a Report on Form 10-K is not required to be filed in respect of
the Trust for the preceding calendar year. The signing officer shall have no
personal liability with respect to the content of any such statement, and such
Master Servicer or such Special Servicer, as the case may be, shall be deemed to
have made such statement and shall assume any liability resulting therefrom.
Section 8.13 Annual Independent Public Accountants' Servicing
Report
On or before noon (Eastern Time) on March 20 of each year,
commencing in March 2006, each Master Servicer at its expense shall cause a firm
of nationally recognized independent public accountants (which may also render
other services to such Master Servicer) and that is a member of the American
Institute of Certified Public Accountants to furnish a statement to the Trustee,
the Paying Agent and the Depositor with a copy to the Rating Agencies, to the
effect that (i) it has obtained a letter of representation regarding certain
matters from the management of the applicable Master Servicer, which includes an
assertion that such Master Servicer has complied with certain minimum mortgage
loan servicing standards (to the extent applicable to commercial and multifamily
mortgage loans), identified in the Uniform Single Attestation Program for
Mortgage Bankers established by the Mortgage Bankers Association of America,
with respect to the servicing of commercial and multifamily mortgage loans
during the most recently completed calendar year and (ii) on the basis of an
examination conducted by such firm in accordance with standards established by
the American Institute of Certified Public Accountants, such representation is
fairly stated in all material respects, subject to such exceptions and other
qualifications that may be appropriate. In rendering its report such firm may
rely, as to matters relating to the direct servicing of commercial and
multifamily mortgage loans by Primary Servicers or Sub-Servicers, upon
comparable reports of firms of independent certified public accountants rendered
on the basis of examinations conducted in accordance with the same standards
(rendered within one year of such report) with respect to those Primary
Servicers or Sub-Servicers, provided that neither the Master Servicers nor the
Special Servicers will be required to cause the delivery of its Annual
Accountant's Report until May 15 in any given year so long as it has received
written confirmation from the Depositor or the Trustee that a Report on Form
10-K is not 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 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.
Section 8.14 Operating Statement Analysis Reports Regarding the
Mortgaged Properties
Within 105 calendar days (or 90 days as to any Special Servicer), or
120 days with respect to any Co-op Mortgage Loans, after the end of each of the
first three calendar quarters (in each year) for the trailing 12 months,
quarterly or year-to-date information received, commencing for the quarter
ending on March 31, 2006, each Master Servicer shall deliver to the Paying Agent
and the Operating Adviser an Operating Statement Analysis Report and a Financial
File for each Mortgaged Property in electronic format, prepared using the non
normalized quarterly, year-to-date or trailing 12 month operating statements
and, in the case of Mortgage Loans other than Co-op Mortgage Loans, rent rolls
received from the related Mortgagor, if any. In the case of the MM Loans,
however, the Master Servicer will only be required to deliver these reports at
the level of frequency at which the underlying loan documents require the
related Mortgagor to deliver the applicable financial information to the lender
(which generally is annually). With respect to Specially Serviced Mortgage
Loans, the applicable Master Servicer shall include information only to the
extent provided by the applicable Special Servicer, which an Operating Statement
Analysis Report and a Financial File shall be prepared by the applicable Special
Servicer and delivered to the applicable Master Servicer within 90 days after
the end of each of the first three quarters of each year for the trailing twelve
months, quarterly or year-to-date information received and other information
utilized by the applicable Special Servicer to prepare such report or files.
With respect to any Mortgage Loan for which a Primary Servicer is appointed as a
Special Servicer with respect to such Mortgage Loan pursuant to Section 9.39,
the reports prepared by any such Special Servicer shall only include the CMSA
reports and related data required by the related Primary Servicing Agreement,
and such other reports as are mutually agreed to by the related Primary Servicer
and the General Master Servicer. Not later than the Report Date occurring in
June of each year, beginning in 2007 for year-end 2006, the applicable Master
Servicer (in the case of Mortgage Loans that are not Specially Serviced Mortgage
Loans and as provided by the applicable Special Servicer to the applicable
Master Servicer for Specially Serviced Mortgage Loans) shall deliver to the
Paying Agent and the Operating Adviser an Operating Statement Analysis Report, a
Financial File and an NOI Adjustment Worksheet for each Mortgage Loan in
electronic format, based on the most recently available year-end financial
statements and most recently available rent rolls, in each case of Mortgage
Loans other than Co-op Mortgage Loans, of each applicable Mortgagor (to the
extent provided to the applicable Master Servicer or applicable Special Servicer
by or on behalf of each Mortgagor). In the case of Specially Serviced Mortgaged
Loans, as provided to the applicable Special Servicer by the Mortgagor, the
applicable Special Servicer shall forward such information to the applicable
Master Servicer on or before April 15 of each such year as provided for in
Section 9.32(e) herein, containing such information and analyses for each
Mortgage Loan provided for in the respective forms of Operating Statement
Analysis Report, Financial File and NOI Adjustment Worksheet. Such information
provided by the applicable Master Servicer shall include what would customarily
be included in accordance with the Servicing Standard including, without
limitation, Debt Service Coverage Ratios and income. As and to the extent
reasonably requested by a Special Servicer, the applicable Master Servicer shall
make inquiry of any Mortgagor with respect to such information or as regards the
performance of the related Mortgaged Property in general. The Paying Agent shall
provide or make available electronically at no cost to the Certificateholders or
Certificate Owners, the Rating Agencies, the Operating Adviser, the Depositor,
the Placement Agent and the Underwriters the Operating Statement Analysis
Reports, the Financial Files and the NOI Adjustment Worksheets described above
pursuant to Section 5.4(a). The General Master Servicer shall make the CMSA
Operating Statement Analysis Report, the operating statements, rent rolls
(except in the case of Co-op Mortgage Loans), property inspections and NOI
Adjustment Worksheet for each Mortgage Loan available on its website (which
shall initially be located at xxx.XXXXXX.xxx (the "General Master Servicer's
Website")) by the Business Day following the Distribution Date in July 2006. The
aggregated CMSA Reports for the NCB, FSB Loans shall be available on the NCB
Master Servicer's Website (which shall initially be located at xxx.xxx.xxxx (the
"NCB Master Servicer's Website") by the Business Day following the Distribution
Date in November 2005. With respect to the NCB, FSB Loans, the related rent
rolls (except in the case of Co-op Mortgage Loans), operating statements,
financial statements and inspections collected with respect to the Mortgaged
Properties shall be available for review by the Operating Adviser, the other
parties to this Agreement, the Rating Agencies, any Certificateholder and other
appropriate parties via a password protocol and execution of an agreement
relating thereto on the applicable Master Servicer's website within 30 days
following receipt thereof by the applicable Master Servicer. Each Master
Servicer shall, upon request by any of such parties, deliver copies of such
documents to such parties if such documents are not available on such Master
Servicer's website at such time. Pursuant to the Mortgage Loan Purchase
Agreements, the Sellers shall populate all fields or any information for their
related Mortgage Loans reasonably requested by the applicable Master Servicer to
complete the Property File.
Section 8.15 Other Available Information and Certain Rights of the
Master Servicer
(a) Subject to paragraphs (b), (c) and (d) below, unless prohibited
by applicable law or the loan documents, the Paying Agent shall make available
at its Corporate Trust Office, during normal business hours, upon reasonable
advance written notice for review by any Certificateholder, any Certificate
Owner, any Seller, any Primary Servicer, the Placement Agent, any Underwriter,
each Rating Agency, the Paying Agent or the Depositor, originals or copies of,
among other things, the following items: (i) this Agreement and any amendments
thereto, (ii) all final and released Operating Statement Analysis Reports and
the Loan Periodic Update Files, (iii) all Officer's Certificates (including
Officer's Certificates evidencing any determination of Nonrecoverable Advances)
delivered to the Trustee and the Paying Agent since the Closing Date, (iv) all
accountants' reports delivered to the Trustee and the Paying Agent since the
Closing Date, (v) the most recent property Inspection Reports in the possession
of the Paying Agent in respect of each Mortgaged Property, (vi) the most recent
Mortgaged Property annual operating statement and, in the case of Mortgage Loans
other than Co-op Mortgage Loans, rent roll, if any, collected by or on behalf of
the Master Servicers or the Special Servicers, (vii) any and all modifications,
waivers and amendments of the terms of a Mortgage Loan entered into by the
Master Servicers and/or the Special Servicers, and (viii) any and all Officers'
Certificates (and attachments thereto) delivered to the Trustee and the Paying
Agent to support a Master Servicer's determination that any Advance was not or,
if made, would not be, recoverable. The Trustee and the Paying Agent will be
permitted to require payment of a sum to be paid by the requesting party (other
than the Rating Agencies, the Trustee, the Paying Agent, any Placement Agent or
any Underwriter) sufficient to cover the reasonable costs and expenses of making
such information available.
(b) Subject to the restrictions described below, each Master
Servicer shall afford the Rating Agencies, the Depositor, the Trustee, the
Paying Agent, the applicable Special Servicer, the Primary Servicers, the
Sellers, any Placement Agent, the Underwriters, the Operating Adviser, any
Certificateholder or any Certificate Owner, upon reasonable notice and during
normal business hours, reasonable access to all information referred to in
Section 8.15(a) and any additional relevant, non-attorney-client-privileged
records and documentation regarding the applicable Mortgage Loans, REO Property
and all accounts, insurance policies and other relevant matters relating to this
Agreement (which access may occur by means of the availability of information on
the applicable Master Servicers' or the Paying Agent's Website or the electronic
delivery of such information to the requesting Person), in each case to the
extent in its respective possession, and access to Servicing Officers of the
applicable Master Servicers responsible for its obligations hereunder. Copies of
information or access will be provided to Certificateholders and each
Certificate Owner providing satisfactory evidence of ownership of Certificates
or beneficial ownership of a Certificate, as the case may be, which may include
a certification. Copies (or computer diskettes or other digital or electronic
copies of such information if reasonably available in lieu of paper copies) of
any and all of the foregoing items shall be made available by the applicable
Master Servicers upon request; provided, however, that the applicable Master
Servicers shall be permitted to require payment by the requesting party (other
than the Depositor, the Trustee, the Paying Agent, the applicable Special
Servicer, the Operating Adviser, any Placement Agent, any Underwriter, or any
Rating Agency) of a sum sufficient to cover the reasonable expenses actually
incurred by such Master Servicer of providing access or copies (including
electronic or digital copies) of any such information requested in accordance
with the preceding sentence.
(c) Nothing herein shall be deemed to require either of the Master
Servicers to confirm, represent or warrant the accuracy of (or to be liable or
responsible for) any other Person's information or report. Notwithstanding the
above, neither of the Master Servicers shall have any liability to the
Depositor, the Trustee, the Paying Agent, the applicable Special Servicer, any
Certificateholder, any Certificate Owner, the Placement Agent, any Underwriter,
any Rating Agency or any other Person to whom it delivers information pursuant
to this Section 8.15 or any other provision of this Agreement for federal, state
or other applicable securities law violations relating to the disclosure of such
information. In the event any Person brings any claims relating to or arising
from the foregoing against a Master Servicer (or any partners, representatives,
Affiliates, members, managers, directors, officers, employees, agents thereof),
the Trust (from amounts held in any account) shall hold harmless and indemnify
such Master Servicer from any loss or expense (including attorney fees) relating
to or arising from such claims.
(d) Each Master Servicer shall produce the reports required of it
under this Agreement; provided, however, that the Master Servicers shall not be
required to produce any ad hoc non-standard written reports not otherwise
required under this Agreement with respect to such Mortgage Loans. In the event
a Master Servicer elects to provide such non-standard reports, it may require
the Person requesting such report (other than a Rating Agency) to pay a
reasonable fee to cover the costs of the preparation thereof. Notwithstanding
anything to the contrary herein, as a condition to a Master Servicer making any
report or information available upon request to any Person other than the
parties hereto, such Master Servicer may require that the recipient of such
information acknowledge that such Master Servicer may contemporaneously provide
such information to the Depositor, the Trustee, the Paying Agent, the applicable
Special Servicer, the Primary Servicer, the Sellers, the Placement Agent, any
Underwriter, any Rating Agency and/or the Certificateholders or Certificate
Owners. Any transmittal of information by a Master Servicer to any Person other
than the Trustee, the Paying Agent, the other Master Servicer, the Special
Servicers, the Rating Agencies, the Operating Adviser or the Depositor may be
accompanied by a letter from such Master Servicer containing a disclaimer as to
the confidentiality of the information requested.
(e) Each Master Servicer may, at its discretion, make available by
electronic media and bulletin board service certain information and may make
available by electronic media or bulletin board service (in addition to making
such information available as provided herein) any reports or information
required by this Agreement that such Master Servicer is required to provide to
any of the Rating Agencies, the Depositor and anyone the Depositor reasonably
designates.
(f) Each Master Servicer shall cooperate in providing the Rating
Agencies with such other pertinent information relating to the Mortgage Loans as
is or should be in their respective possession as the Rating Agencies may
reasonably request.
(g) Once a month, each of the Master Servicers and each of the
Special Servicers shall, without charge, make a knowledgeable Servicing Officer
available to answer questions from the Operating Adviser during regular business
hours at such time and for such duration as the applicable Master Servicer or
Special Servicer, and the Operating Adviser shall reasonably agree, regarding
the performance and servicing of the Mortgage Loans and REO Properties for which
such Master Servicer or such Special Servicer, as the case may be, is
responsible. As a condition to such disclosure, the Operating Adviser shall
execute a confidentiality agreement in form reasonably acceptable to each Master
Servicer, each Special Servicer and the Operating Adviser.
Section 8.16 Rule 144A Information
For as long as any of the Certificates are "restricted securities"
within the meaning of Rule 144A under the Securities Act, each Master Servicer
agrees to provide to the Paying Agent for delivery to any Holder thereof, any
Certificate Owner therein and to any prospective purchaser of the Certificates
or beneficial interest therein reasonably designated by the Paying Agent upon
the request of such Certificateholder, such Certificate Owner or the Paying
Agent, subject to this Section 8.16 and the provisions of Section 8.15, any
information prepared by such Master Servicer that is required to be provided to
such holder or prospective purchaser to satisfy the condition set forth in Rule
144A(d)(4) under the Securities Act, including, without limitation, copies of
the reports and information described in Sections 8.15(a) and (b).
Any recipient of information provided pursuant to this Section 8.16
shall agree that such information shall not be disclosed or used for any purpose
other than the evaluation of the Certificates by such Person and the applicable
Master Servicer shall be permitted to use the letter referred to in Section
8.15(d). Unless the applicable Master Servicer chooses to deliver the
information directly, the Depositor, the Placement Agent, the Underwriters or
the Paying Agent shall be responsible for the physical delivery of the
information requested pursuant to this Section 8.16. As a condition to a Master
Servicer making any report or information available upon request to any Person
other than the parties hereto, such Master Servicer may require that the
recipient of such information acknowledge that such Master Servicer may
contemporaneously provide such information to the Depositor, the Trustee, the
Paying Agent, the Placement Agent, the Underwriters, any Rating Agency and/or
the Certificateholders and Certificate Owners. The Master Servicers will be
permitted to require payment of a sum to be paid by the requesting party (other
than the Rating Agencies, the Trustee, the Paying Agent, the Placement Agent or
the Underwriters) sufficient to cover the reasonable costs and expenses of
making such information available.
Section 8.17 Inspections
Each Master Servicer shall, at its own expense, inspect or cause to
be inspected each Mortgaged Property for which it is acting as Master Servicer,
other than Mortgaged Properties related to Specially Serviced Mortgage Loans,
every calendar year beginning in 2006, or every second calendar year beginning
in 2007 if the Principal Balance of the related Mortgage Loan is under
$2,000,000; provided that each Master Servicer shall, at the expense of the
Trust, inspect or cause to be inspected each Mortgaged Property related to a
Mortgage Loan for which it is acting as Master Servicer (other than a Specially
Serviced Mortgage Loan, or if there has not been an inspection within the past
six months) that has a Debt Service Coverage Ratio that falls below 1.0x or,
with respect to Co-op Mortgage Loans, 0.90x. The foregoing sentence shall not
alter the terms of the applicable Special Servicer's obligation to inspect
Mortgaged Properties as set forth in Section 9.4(b) hereto. The applicable
Master Servicer shall cause to be prepared an Inspection Report relating to each
inspection.
The applicable Inspection Reports shall be available for review by
the Trustee, the applicable Special Servicer, the Rating Agencies, the Placement
Agent, the Underwriters, the Depositor, the Paying Agent, the Operating Adviser,
any Certificate Owner, any Seller and any Primary Servicer via password protocol
and execution of an agreement relating thereto on the General Master Servicer's
Website. With respect to the NCB, FSB Loans, the applicable Inspection Reports
shall be available for review by the Trustee, the applicable Special Servicer
and, upon request, the Rating Agencies, the Placement Agent, the Underwriters,
the Depositor, the Paying Agent, the Operating Adviser, any Seller and any
Primary Servicer via password protocol and execution of an agreement relating
thereto on the NCB Master Servicer's Website (which shall be initially located
at xxx.xxx.xxxx) by the Business Day following the Distribution Date in November
2005. The NCB Master Servicer shall, upon request by any of such parties,
deliver copies of such documents to any of the foregoing parties if such
documents are not available on the NCB Master Servicer's Website at such time.
The applicable Special Servicer shall have the right, but no duty, to inspect or
cause to be inspected (at its own expense) every calendar year any Mortgaged
Property related to a Mortgage Loan that is not a Specially Serviced Mortgage
Loan, provided that such Special Servicer notifies such Master Servicer prior to
such inspection.
Section 8.18 Modifications, Waivers, Amendments, Extensions and
Consents
Subject to the limitations of Sections 9.39 and 12.3, the Master
Servicer shall have the following powers:
(a) (i) The applicable Master Servicer, in accordance with the
Servicing Standard, may agree to any modification, waiver, amendment or consent
of or relating to any term (including, without limitation, Master Servicer
Consent Matters set forth in Section 8.3(a) hereof and waiver of default
interest and Late Fees as provided in Section 8.3(a)) other than a Money Term of
a Mortgage Loan that is not a Specially Serviced Mortgage Loan, provided that
such amendment would not result in an Adverse REMIC Event; and provided,
further, that if any consent relates to a release of a letter of credit relating
to any Mortgage Loan (other than letters of credit or portions thereof released
upon satisfaction of conditions specified in the related agreements), then (i)
the applicable Master Servicer shall notify the applicable Special Servicer of
any Mortgagor's request to release such letter of credit which the applicable
Master Servicer recommends to release, and (ii) if the terms of the related
Mortgage Loan do not require the applicable Master Servicer to approve a
release, then the applicable Special Servicer shall within five Business Days
provide notice to the applicable Master Servicer on whether such Master Servicer
should approve the release (and the failure of the applicable Special Servicer
to give such Master Servicer such notice shall automatically be deemed to be an
approval by such Special Servicer that such Master Servicer should grant such
release). Notwithstanding the preceding sentence, with respect to the Mortgage
Loans that are not Specially Serviced Loans, if a Master Servicer recommends to
approve a modification, waiver, amendment or consent which is not a Master
Servicer Consent Matter (including, without limitation, any waiver of any
requirement that the Mortgagor post additional reserves or a letter of credit
upon the failure of the Mortgagor to satisfy conditions specified in the
Mortgage Loan documents, but excluding any waiver of default interest and Late
Fees as provided in Section 8.3(a)), such Master Servicer shall provide to the
applicable Special Servicer a copy of such Master Servicer's recommendation and
the relevant information obtained or prepared by such Master Servicer in
connection therewith and all other information in such Master Servicer's
possession reasonably requested by the applicable Special Servicer, provided,
that (A) the applicable Special Servicer shall have the right hereunder to grant
or withhold consent to any such proposed modification, waiver, amendment or
consent, and the applicable Special Servicer shall not unreasonably withhold
such consent and any such decision shall be in accordance with the Servicing
Standard, (B) failure of the applicable Special Servicer to notify such Master
Servicer, within five Business Days following such Master Servicer's delivery of
the recommendation and all required information described above, of its
determination to grant or withhold such consent shall be deemed to constitute a
grant of such consent and (C) such Master Servicer shall not enter into any such
proposed modification, waiver, amendment or consent unless it has received the
written consent of the applicable Special Servicer or such consent has been
deemed to have been granted as described above. Notwithstanding anything in this
Agreement to the contrary, a Master Servicer shall not be required to obtain or
request the consent of the applicable Special Servicer in connection with any
modification, waiver or amendment, or granting its consent to transactions,
under one or more of the Mortgage Loans that in each case such Master Servicer
has determined (in accordance with the Servicing Standard) is immaterial. In any
event, such Master Servicer shall promptly notify the applicable Special
Servicer of any material modification, waiver, amendment or consent executed by
such Master Servicer pursuant to this Section 8.18(a)(i) and provide to the
applicable Special Servicer a copy thereof. Notwithstanding the foregoing
provisions of this Section 8.18, if the Mortgage Loan documents do not preclude
imposition of a requirement to or require a Mortgagor to pay a fee for an
assumption, modification, waiver, amendment or consent that would be due or
partially due to the applicable Special Servicer, then the applicable Master
Servicer shall not waive the portion of such fee due to the applicable Special
Servicer without the applicable Special Servicer's approval.
Notwithstanding the foregoing, the General Special Servicer
acknowledges that the General Master Servicer has delegated certain tasks,
rights and obligations to the Primary Servicers for the UCMFI Loans, the
SunTrust Loans and the MM Loans with respect to Post-Closing Requests pursuant
to Section 8.4 of this Agreement.
With respect to a Category 1 Request that involves a condition, term
or provision that requires, or specifies a standard of, consent or approval of
the applicable Mortgagee under the Mortgage Loan documents, each Primary
Servicing Agreement for the UCMFI Loans, the SunTrust Loans and the MM Loans
provides for the General Master Servicer's (or, with respect to the MM Loans,
the Primary Servicer's) determination of materiality of such condition, term or
provision requiring approval or consent and the referral of such condition, term
or provision to the General Special Servicer for consent in accordance with the
terms of such Primary Servicing Agreements upon a determination of materiality.
The General Special Servicer hereby acknowledges such provisions, including that
"materiality" shall include the existence of an Adverse REMIC Event. Nothing in
this Agreement, however, shall grant the applicable Primary Servicers greater
authority, discretion or delegated rights over Post-Closing Requests than are
set forth in the applicable Primary Servicing Agreements.
(ii) The applicable Master Servicer may, without the consent of the
applicable Special Servicer, extend the maturity date of any Balloon
Mortgage Loan that is not a Specially Serviced Mortgage Loan to a date
that is not more than 90 days following the original Maturity Date, if in
such Master Servicer's sole judgment exercised in good faith (and
evidenced by an Officer's Certificate), a default in the payment of the
Balloon Payment is reasonably foreseeable and the Mortgagor has obtained
an executed written commitment (subject only to satisfaction of conditions
set forth therein) for refinancing of the Mortgage Loan or purchase of the
related Mortgaged Property. The applicable Master Servicer shall process
all such extensions and shall be entitled to (as additional servicing
compensation) 100% of any extension fees collected from a Mortgagor with
respect to any such extension (except with respect to the UCMFI Loans for
which such extension fees allocable to the General Master Servicer will be
evenly divided among the General Master Servicer, the applicable Primary
Servicer and the applicable Sub-Servicer, if any).
(b) The applicable Master Servicer may require, in its discretion
(unless prohibited or otherwise provided in the Mortgage Loan documents), as a
condition to granting any request by a Mortgagor for any consent, modification,
waiver or amendment, that such Mortgagor pay to such Master Servicer a
reasonable and customary modification fee to the extent permitted by law;
provided that the collection of such fee shall not be permitted if collection of
such fee would cause a "significant modification" (within the meaning of
Treasury Regulations Section 1.860G-2(b) of the Mortgage Loan). The applicable
Master Servicer shall be entitled to (as additional servicing compensation) 100%
of any Modification Fees collected from a Mortgagor in connection with a
consent, waiver, modification or amendment of a non-Specially Serviced Mortgage
Loan executed or granted pursuant to this Section 8.18 (except with respect to
the UCMFI Loans with respect to which the related Special Servicer shall receive
50% of such fees with respect to matters requiring the consent of the Special
Servicer). The applicable Master Servicer may charge the Mortgagor for any costs
and expenses (including attorneys' fees and Rating Agency Confirmation fees)
incurred by such Master Servicer or the applicable Special Servicer (which
amounts shall be reimbursed to the applicable Special Servicer) in connection
with any request for a modification, waiver or amendment. The applicable Master
Servicer agrees to use its reasonable efforts in accordance with the Servicing
Standard to collect such costs, expenses and fees from the Mortgagor, provided
that the failure or inability of the Mortgagor to pay any such costs and
expenses shall not impair the right of the Master Servicer to cause such costs
and expenses (but not including any modification fee), and interest thereon at
the Advance Rate, to be paid or reimbursed by the Trust as a Servicing Advance
(to the extent not paid by the Mortgagor). If the applicable Master Servicer
believes that the costs and expenses (including attorneys' fees) to be incurred
by such Master Servicer in connection with any request for a modification,
waiver or amendment will result in a payment or reimbursement by the Trust, then
such Master Servicer shall notify the Special Servicer.
(c) Each Master Servicer shall notify the Trustee and the applicable
Special Servicer of any modification, waiver or amendment of any term of any
Mortgage Loan permitted by it under this Section and the date thereof, and shall
deliver to the Trustee for deposit in the related Mortgage File, an original
counterpart of the agreement relating to such modification, waiver or amendment,
promptly following the execution thereof except to the extent (i) allowed with
respect to waiver of default interest and Late Fees as provided in Section
8.3(a) and (ii) such documents have been submitted to the applicable recording
office, in which event such Master Servicers shall promptly deliver copies of
such documents to the Trustee. The Master Servicers shall not agree to any
modification, waiver, or amendment of any Money Term of a Mortgage Loan or any
term of a Specially Serviced Mortgage Loan.
(d) If the Mortgage Loan documents relating to a Mortgage Loan
provide that certain conditions must be satisfied prior to the applicable Master
Servicer releasing additional collateral for the Mortgage Loan (e.g., the
release, reduction or termination of reserves or letters of credit or the
establishment of reserves), then such Master Servicer shall be permitted to
waive any such condition without obtaining the consent of the applicable Special
Servicer, provided that (1) the aggregate amount of the related release,
reduction or termination is no greater than the smaller of 10% of the
outstanding unpaid Principal Balance of the related Mortgage Loan or $75,000,
(2) the condition to be waived is deemed to be non-material in accordance with
the Servicing Standard or (3) such release, reduction or termination would not
otherwise cause an Adverse REMIC Event. Notwithstanding the foregoing, without
the applicable Special Servicer's consent or except as provided in the specific
Mortgage Loan documents, the applicable Master Servicer shall not waive: (1) a
requirement for any such additional collateral to exist, or (2) a lock box
requirement.
Section 8.19 Specially Serviced Mortgage Loans
(a) The applicable Master Servicer shall send a written notice to
the applicable Special Servicer, the Operating Adviser, Rating Agencies, the
Paying Agent and the Trustee, within two Business Days after becoming aware of a
Servicing Transfer Event with respect to a Mortgage Loan, which notice shall
identify the related Mortgage Loan and set forth in reasonable detail the nature
and relevant facts of such Servicing Transfer Event and whether such Mortgage
Loan is covered by an Environmental Insurance Policy (and for purposes of
stating whether such Mortgage Loan is covered by an Environmental Insurance
Policy applicable the Master Servicer may rely on the Mortgage Loan Schedule)
and, except for the Rating Agencies, the Paying Agent and the Trustee, shall be
accompanied by a copy of the Servicer Mortgage File. The applicable Special
Servicer shall not be liable for its failure to deliver the notice set forth in
Section 9.36(a) if such failure is caused by its failure to receive the written
notice set forth above.
(b) Prior to the transfer of the servicing of any Specially Serviced
Mortgage Loan to the applicable Special Servicer, the applicable Master Servicer
shall notify the related Mortgagor of such transfer in accordance with the
Servicing Standard (the form and substance of such notice shall be reasonably
satisfactory to the applicable Special Servicer).
(c) Any calculations or reports prepared by the applicable Master
Servicer to the extent they relate to Specially Serviced Mortgage Loans shall be
based on information supplied to such Master Servicer in writing by the
applicable Special Servicer as provided hereby. The applicable Master Servicer
shall have no duty to investigate or confirm the accuracy of any information
provided to it by the applicable Special Servicer and shall have no liability
for the inaccuracy of any of its reports due to the inaccuracy of the
information provided by such Special Servicer.
(d) On or prior to each Distribution Date, the applicable Master
Servicer shall provide to the applicable Special Servicer, in order for such
Special Servicer to comply with its obligations under this Agreement, such
information (and in the form and medium) as the Special Servicer may reasonably
request in writing from time to time, provided that (i) the applicable Master
Servicer shall not be required to produce any ad hoc reports or incur any
unusual expense or effort in connection therewith and (ii) if such Master
Servicer elects to provide such ad hoc reports, it may require the applicable
Special Servicer to pay a reasonable fee to cover the costs of the preparation
thereof.
Section 8.20 Representations, Warranties and Covenants of the
Master Servicers
(a) The General Master Servicer hereby represents and warrants to
and covenants with the Trustee and the Paying Agent, as of the date hereof:
(i) the General Master Servicer is a corporation, duly organized,
validly existing and in good standing under the laws of the State of
California, and the General Master Servicer is in compliance with the laws
of each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement, except where
the failure to so qualify or comply would not adversely affect the General
Master Servicer's ability to perform its obligations hereunder in
accordance with the terms of this Agreement;
(ii) the execution and delivery of this Agreement by the General
Master Servicer, and the performance and compliance with the terms of this
Agreement by the General Master Servicer, will not violate the General
Master Servicer's organizational documents or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, which default or breach, in the good faith reasonable
judgment of the General Master Servicer, is likely to materially and
adversely either affect the ability of the General Master Servicer to
perform its obligations under this Agreement or the financial condition of
the General Master Servicer;
(iii) the General Master Servicer has the full power and authority
to enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this Agreement;
(iv) this Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the General Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law;
(v) the General Master Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, order or decree of any court or arbiter, or any
order, regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the General Master Servicer's
good faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the General Master Servicer to perform its
obligations under this Agreement or the financial condition of the General
Master Servicer;
(vi) no litigation is pending or, to the best of the General Master
Servicer's knowledge, threatened against the General Master Servicer the
outcome of which, in the General Master Servicer's good faith and
reasonable judgment, could reasonably be expected to prohibit the General
Master Servicer from entering into this Agreement or materially and
adversely affect the ability of the General Master Servicer to perform its
obligations under this Agreement;
(vii) the General Master Servicer has errors and omissions insurance
coverage which is in full force and effect and which complies with the
requirements of Section 8.2; and
(viii) no consent, approval, authorization or order, registration or
filing with or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of
or compliance by the General Master Servicer with this Agreement, or the
consummation by the General Master Servicer of any transaction
contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings, or notices as have
been obtained or made and (2) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by the General Master
Servicer under this Agreement.
(b) The NCB Master Servicer hereby represents and warrants to and
covenants with the Trustee and the Paying Agent, as of the date hereof:
(i) the NCB Master Servicer is a federal savings bank duly
organized, validly existing and in good standing under the laws of the
United States, and the NCB Master Servicer is in compliance with the laws
of each State in which any related Mortgaged Property is located to the
extent necessary to perform its obligations under this Agreement, except
where the failure to so qualify or comply would not adversely affect the
NCB Master Servicer's ability to perform its obligations hereunder in
accordance with the terms of this Agreement;
(ii) the NCB Master Servicer's execution and delivery of,
performance under and compliance with this Agreement, will not violate the
NCB 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 the
NCB Master Servicer, is likely to affect materially and adversely either
the ability of the NCB Master Servicer to perform its obligations under
this Agreement or the financial condition of the NCB Master Servicer;
(iii) the NCB Master Servicer has the full power and authority to
enter into and consummate all transactions involving the NCB 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 the NCB Master Servicer, enforceable against the
NCB 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) the NCB 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 the NCB Master Servicer's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the NCB Master Servicer to perform its obligations under this Agreement
or the financial condition of the NCB Master Servicer;
(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 NCB Master Servicer of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders
that previously have been obtained or where the lack of such consent,
approval, authorization or order would not have a material adverse effect
on the ability of the NCB Master Servicer to perform its obligations under
this Agreement;
(vii) no litigation is pending or, to the best of the NCB Master
Servicer's knowledge, threatened against the NCB Master Servicer the
outcome of which, in the NCB Master Servicer's good faith and reasonable
judgment, could reasonably be expected to prohibit the NCB Master Servicer
from entering into this Agreement or materially and adversely affect the
ability of the NCB Master Servicer to perform its obligations under this
Agreement; and
(viii) the NCB Master Servicer has errors and omissions insurance as
required by Section 8.2.
(c) It is understood that the representations and warranties set
forth in this Section 8.20 shall survive the execution and delivery of this
Agreement.
(d) Any cause of action against a Master Servicer arising out of the
breach of any representations and warranties made in this Section shall accrue
upon the giving of written notice to the applicable Master Servicer by any of
the Trustee or the applicable Master Servicer. The applicable Master Servicer
shall give prompt notice to the Trustee, the Depositor, the Primary Servicers
and the applicable Special Servicer of the occurrence, or the failure to occur,
of any event that, with notice or the passage of time or both, would cause any
representation or warranty in this Section to be untrue or inaccurate in any
respect.
Section 8.21 Merger or Consolidation
Any Person into which a Master Servicer may be merged or
consolidated, or any Person resulting from any merger, conversion, other change
in form or consolidation to which such Master Servicer shall be a party, or any
Person succeeding to the business of such Master Servicer, shall be the
successor of such Master Servicer hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto; provided,
however, that each Rating Agency provides a Rating Agency Confirmation. If such
a succession occurs and the conditions thereto set forth in the provisions in
the foregoing sentence are not met, the Trustee may terminate such Master
Servicer's servicing of the Mortgage Loans pursuant hereto, such termination to
be effected in the manner set forth in Sections 8.28 and 8.29.
Section 8.22 Resignation of the Master Servicer
(a) Except as otherwise provided in Section 8.22(b) hereof, a Master
Servicer shall not resign from the obligations and duties hereby imposed on it
unless it determines that such Master Servicer's duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it. Any such
determination permitting the resignation of such Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee. No
such resignation shall become effective until a successor servicer designated by
the Trustee, with the consent of the Depositor and the Paying Agent, shall have
assumed such Master Servicer's responsibilities and obligations under this
Agreement and Rating Agency Confirmation shall have been obtained. Notice of
such resignation shall be given promptly by such Master Servicer to the Trustee
and the Paying Agent.
(b) A Master Servicer may resign from the obligations and duties
imposed on it, upon 30 days notice to the Trustee and the Paying Agent, provided
that (i) a successor servicer (x) is available, (y) is willing to assume the
obligations, responsibilities, and covenants to be performed hereunder by such
Master Servicer on substantially the same terms and conditions, and for not more
than equivalent compensation to that herein provided and (z) in the case of a
successor servicer to the General Master Servicer, assumes all obligations of
the resigning General Master Servicer under the Primary Servicing Agreements;
(ii) such Master Servicer bears all costs associated with its resignation and
the transfer of servicing; and (iii) Rating Agency Confirmation is obtained with
respect to such servicing transfer, as evidenced by a letter delivered to the
Trustee by each such Rating Agency.
Section 8.23 Assignment or Delegation of Duties by the Master
Servicer
A Master Servicer shall have the right without the prior written
consent of the Trustee to (A) delegate or subcontract with or authorize or
appoint anyone, or delegate certain duties to other professionals such as
attorneys and appraisers, as an agent of such Master Servicer (as provided in
Section 8.4) to perform and carry out any duties, covenants or obligations to be
performed and carried out by such Master Servicer hereunder or (B) assign and
delegate all of its duties hereunder; provided, however, that with respect to
clause (B), (i) such Master Servicer gives the Depositor, the applicable Special
Servicer, the Primary Servicers, and the Trustee notice of such assignment and
delegation; (ii) such purchaser or transferee accepting such assignment and
delegation executes and delivers to the Depositor and the Trustee an agreement
accepting such assignment, which contains an assumption by such Person of the
rights, powers, duties, responsibilities, obligations and liabilities of such
Master Servicer, with like effect as if originally named as a party to this
Agreement and the Primary Servicing Agreements; (iii) the purchaser or
transferee has assets in excess of $15,000,000; (iv) such assignment and
delegation is the subject of a Rating Agency Confirmation from Xxxxx'x and S&P;
and (v) the Depositor consents to such assignment and delegation, such consent
not be unreasonably withheld. In the case of any such assignment and delegation
in accordance with the requirements of subclause (B) of this Section, such
Master Servicer shall be released from its obligations under this Agreement,
except that such Master Servicer shall remain liable for all liabilities and
obligations incurred by it as such Master Servicer hereunder prior to the
satisfaction of the conditions to such assignment set forth in the preceding
sentence. Notwithstanding the above, such Master Servicer may appoint the
Primary Servicers and Sub-Servicers in accordance with Section 8.4 hereof.
Section 8.24 Limitation on Liability of the Master Servicers and
Others
(a) Neither of the Master Servicers nor any of the partners,
representatives, Affiliates, members, managers, directors, officers, employees
or agents of the Master Servicers shall be under any liability to the holders of
the Certificates, the Depositor, the Trustee, the Paying Agent, the Placement
Agent, the Underwriters or the Special Servicers for any action taken or for
refraining from the taking of any action in good faith, or using reasonable
business judgment, consistent with the Servicing Standard; provided that this
provision shall not protect any Master Servicer or any such Person against any
breach of a representation or warranty contained herein or any liability which
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in its performance of duties under the Agreement or by reason of
negligent disregard of obligations and duties hereunder. The Master Servicers
and any partner, representative, Affiliate, member, manager, director, officer,
employee or agent of the Master Servicers may rely in good faith on any document
of any kind prima facie properly executed and submitted by any Person
(including, without limitation, the applicable Special Servicer) respecting any
matters arising hereunder. The Master Servicers shall not be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Mortgage Loans in accordance with this
Agreement; provided that each Master Servicer may in its sole discretion
undertake any such action which it may reasonably deem necessary or desirable in
order to protect the interests of the Certificateholders and the Trustee in the
Mortgage Loans (subject to the applicable Special Servicer's servicing of
Specially Serviced Mortgage Loans as contemplated herein). In such event, all
legal expenses and costs of such action shall be expenses and costs of the
Trust, and any Master Servicer shall be entitled to be reimbursed therefor as
Servicing Advances as provided by Section 5.2, subject to the provisions of
Section 4.4 hereof.
(b) In addition, the Master Servicers shall have no liability with
respect to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to such Master Servicers and conforming to the requirements
of this Agreement. Subject to the Servicing Standard, each Master Servicer shall
have the right to rely on information provided to it by the applicable Special
Servicer and Mortgagors, and will have no duty to investigate or verify the
accuracy thereof. Neither the Master Servicers, nor any partner, representative,
Affiliate, member, manager, director, officer, employee or agent, shall be
personally liable for any error of judgment made in good faith by any officer,
unless it shall be proved that such Master Servicer or such officer was
negligent in ascertaining the pertinent facts. Neither the Master Servicers nor
any partner, representative, Affiliate, member, manager, director, officer,
employee or agent, shall be personally liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement.
(c) The Master Servicers shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Special Servicers, the Paying Agent or the Trustee in this
Agreement. The Trust shall indemnify and hold harmless the Master Servicers from
any and all claims, liabilities, costs, charges, fees or other expenses which
relate to or arise from any such breach of representation, warranty or covenant
to the extent such Master Servicer is unable to recover such amounts from the
Person in breach.
(d) Except as otherwise specifically provided herein:
(i) a Master Servicer may rely, and shall be protected in acting or
refraining from acting upon, any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, financial statement,
agreement, appraisal, bond or other document (in electronic or paper
format) reasonably believed or in good faith believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(ii) a Master Servicer may consult with counsel, and any written
advice or Opinion of Counsel shall be full and complete authorization and
protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) a Master Servicer shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion, rights or powers conferred upon
it by this Agreement; and
(iv) a Master Servicer, in preparing any reports hereunder, may
rely, and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document,
agreement, covenant, notice, request or other paper (in electronic or
paper format) reasonably believed by it to be genuine and provided by any
Mortgagor or manager of a Mortgaged Property.
(e) The Master Servicers and any partner, representative, Affiliate,
member, manager, director, officer, employee or agent of such Master Servicer
shall be indemnified by the Trustee, the Paying Agent and the applicable Special
Servicer, as the case may be, and held harmless against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments,
and any other costs, liabilities, fees and expenses that such Master Servicer
may sustain arising from or as a result of the willful misfeasance, bad faith or
negligence in the performance of the Trustee's, the Paying Agent's or the
applicable Special Servicer's duties hereunder, as the case may be, or by reason
of negligent disregard of the Trustee's, the applicable Special Servicer's or
the Paying Agent's obligations and duties hereunder, as the case may be,
(including a breach of such obligations a substantial motive of which is to
obtain an economic advantage from being released from such obligations). A
Master Servicer shall immediately notify the Trustee, the Paying Agent and the
applicable Special Servicer, if a claim is made by a third party with respect to
this Agreement or the Mortgage Loans for which it is acting as Master Servicer
entitling such Master Servicer to indemnification hereunder, whereupon the
Trustee, the Paying Agent or the applicable Special Servicer, in each case, to
the extent the claim is related to its respective willful misfeasance, bad
faith, negligence or negligent disregard, shall assume the defense of any such
claim (with counsel reasonably satisfactory to such Master Servicer) and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Trustee, the Paying
Agent and the applicable Special Servicer shall not affect any rights that such
Master Servicer may have to indemnification under this Agreement or otherwise,
unless the Trustee's, the Paying Agent's or the applicable Special Servicer's
defense of such claim is materially prejudiced thereby. Such indemnity shall
survive the termination of this Agreement or the resignation or removal of such
Master Servicer hereunder. Any payment hereunder made by the Trustee, the Paying
Agent or the applicable Special Servicer pursuant to this paragraph to such
Master Servicer shall be paid from the Trustee's, the Paying Agent's or the
applicable Special Servicer's own funds, without reimbursement from the Trust
therefor except to the extent achieved through subrogation as provided in this
Agreement. Any expenses incurred or indemnification payments made by the
Trustee, the Paying Agent or the applicable Special Servicer shall be reimbursed
by the party so paid, if a court of competent jurisdiction makes a final
judgment that the conduct of the Trustee, the Paying Agent or the applicable
Special Servicer, as the case may be, was not culpable of willful misfeasance,
bad faith or negligence in the performance of its respective duties hereunder or
of negligent disregard of its respective duties hereunder or the indemnified
party is found to have acted with willful misfeasance, bad faith or negligence.
Section 8.25 Indemnification; Third-Party Claims
(a) Each Master Servicer and any partner, representative, Affiliate,
member, manager, director, officer, employee or agent of each such Master
Servicer shall be indemnified by the Trust and held harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, liabilities, fees and expenses incurred in
connection with any legal action or claim relating to this Agreement, any
Mortgage Loans, any REO Property or the Certificates or any exercise of any
right under this Agreement reasonably requiring the use of counsel or the
incurring of expenses other than any loss, liability or expense incurred by
reason of such Master Servicer's willful misfeasance, bad faith or negligence in
the performance of duties hereunder. A Master Servicer shall assume the defense
of any such claim (with counsel reasonably satisfactory to such Master Servicer)
and out of the Trust pay all expenses in connection therewith, including counsel
fees, and out of the Trust promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or them in respect of such claim and
satisfy any settlement or other disposition in respect of such claim. The
indemnification provided herein shall survive the termination of this Agreement
or of the Master Servicers in such capacity. The Trustee, the Paying Agent or
the Master Servicers shall promptly make from the applicable Certificate Account
any payments certified by the applicable Master Servicer to the Trustee and the
Paying Agent as required to be made to the applicable Master Servicer pursuant
to this Section 8.25.
(b) Each Master Servicer agrees to indemnify the Trustee, the
applicable Special Servicer, the Trust, the Depositor, the Paying Agent, and any
partner, representative, Affiliate, member, manager, director, officer,
employee, agent or Controlling Person thereof, and hold them harmless against
any and all claims, losses, penalties, fines, forfeitures, legal fees and
related costs, judgments, and any other costs, liabilities, fees and expenses
that the Trustee, the applicable Special Servicer, the Depositor, the Paying
Agent and the Trust may sustain arising from or as a result of the willful
misfeasance, bad faith or negligence in the performance of any of such Master
Servicer's duties hereunder or by reason of negligent disregard of such Master
Servicer's obligations and duties hereunder (including a breach of such
obligations a substantial motive of which is to obtain an economic advantage
from being released from such obligations), and if in any such situation such
Master Servicer is replaced, the parties hereto agree that the amount of such
claims, losses, penalties, fines, legal fees and related costs, judgments, and
other costs, liabilities, fees and expenses shall at least equal the incremental
costs, if any, of retaining a successor servicer. The Trustee, the applicable
Special Servicer, the Paying Agent or the Depositor, as applicable, shall
immediately notify the applicable Master Servicer if a claim is made by any
Person with respect to this Agreement or the Mortgage Loans entitling the
Trustee, the Depositor, the applicable Special Servicer, the Paying Agent or the
Trust to indemnification under this Section 8.25(b), whereupon the applicable
Master Servicer shall assume the defense of any such claim (with counsel
reasonably satisfactory to the Trustee, the applicable Special Servicer, the
Paying Agent or the Depositor, as applicable) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the applicable Master Servicer shall not affect
any rights the Trustee, the applicable Special Servicer, the Depositor, the
Paying Agent or the Trust may have to indemnification under this Agreement or
otherwise, unless the applicable Master Servicer's defense of such claim is
materially prejudiced thereby. The indemnification provided herein shall survive
the termination of this Agreement and the resignation or termination of the
applicable Master Servicer, the applicable Special Servicer, the Paying Agent
and the Trustee. Any expenses incurred or indemnification payments made by the
applicable Master Servicer shall be reimbursed by the party so paid, if a court
of competent jurisdiction makes a final, non-appealable judgment that the
conduct of the applicable Master Servicer was not culpable of willful
misfeasance, bad faith or negligence in the performance of its respective duties
hereunder or of negligent disregard of its respective duties hereunder or the
indemnified party is found to have acted with willful misfeasance, bad faith or
negligence.
(c) The Primary Servicer with respect to the MM Loans and any
partner, representative, Affiliate, member, manager, director, officer, employee
or agent thereof shall be indemnified by the Trust and held harmless against any
and all claims, losses, penalties, fines, forfeitures, legal fees and related
costs, judgments and any other costs, liabilities, fees and expenses incurred in
connection with any legal action relating to this Agreement, its Primary
Servicing Agreement (but only if, and to the extent that, the General Master
Servicer would have been entitled to indemnification therefor under this
Agreement if it were directly servicing the MM Loans, any MM Loan (solely with
respect to the Primary Servicer for such MM Loans), any REO Property or the
Certificates or any exercise of any right under this Agreement or its related
Primary Servicing Agreement (limited as set forth above) reasonably requiring
the use of counsel or the incurring of expenses other than any loss, liability
or expense incurred by reason of such Primary Servicer's willful misfeasance,
bad faith or negligence in the performance of duties thereunder. Such Primary
Servicer shall assume the defense of any such claim (with counsel reasonably
satisfactory to such Primary Servicer) and out of the Trust pay all expenses in
connection therewith, including counsel fees, and out of the Trust promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. The indemnification provided herein shall survive
the termination of this Agreement and the related Primary Servicing Agreement.
The Trustee, the Paying Agent or the General Master Servicer shall promptly make
from the applicable Certificate Account any payments certified by such Primary
Servicer with respect to the MM Loans to the Trustee and the Paying Agent as
required to be made to such Primary Servicer pursuant to this Section 8.25.
(d) The Primary Servicer with respect to the MM Loans agrees to
indemnify the Trustee, the General Special Servicer, the Trust, the Depositor,
the Paying Agent, and any partner, representative, Affiliate, member, manager,
director, officer, employee, agent or Controlling Person thereof, and hold them
harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, liabilities, fees
and expenses that the Trustee, the General Special Servicer, the Depositor, the
Paying Agent and the Trust may sustain arising from or as a result of the
willful misfeasance, bad faith or negligence in the performance of such Primary
Servicer's duties under this Agreement, its related Primary Servicing Agreement
or by reason of negligent disregard of such Primary Servicer's obligations and
duties thereunder (including a breach of such obligations a substantial motive
of which is to obtain an economic advantage from being released from such
obligations), and if in any such situation such Primary Servicer is replaced,
the parties hereto agree that the amount of such claims, losses, penalties,
fines, legal fees and related costs, judgments, and other costs, liabilities,
fees and expenses shall at least equal the incremental costs, if any, of
retaining a successor primary servicer. The Trustee, the General Special
Servicer, the Paying Agent or the Depositor, as applicable, shall immediately
notify such Primary Servicer if a claim is made by any Person with respect to
this Agreement, the related Primary Servicing Agreement or the MM Loans (solely
with respect to the Primary Servicer for the MM Loans) entitling the Trustee,
the Depositor, the General Special Servicer, the Paying Agent or the Trust to
indemnification under this Section 8.25(d), whereupon such Primary Servicer
shall assume the defense of any such claim (with counsel reasonably satisfactory
to the Trustee, the General Special Servicer, the Paying Agent or the Depositor,
as applicable) and pay all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which may
be entered against it or them in respect of such claim. Any failure to so notify
such Primary Servicer shall not affect any rights the Trustee, the applicable
Special Servicer, the Depositor, the Paying Agent or the Trust may have to
indemnification under this Agreement, the related Primary Servicing Agreement or
otherwise, unless such Primary Servicer's defense of such claim is materially
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement and the related Primary Servicing Agreement and
the resignation or termination of the applicable Master Servicer, the applicable
Special Servicer, the Paying Agent and the Trustee. Any expenses incurred or
indemnification payments made by such Primary Servicer with respect to the MM
Loans shall be reimbursed by the party so paid, if a court of competent
jurisdiction makes a final, non-appealable judgment that the conduct of such
Primary Servicer was not culpable or that such Primary Servicer did not act with
willful misfeasance, bad faith or negligence.
(e) The Master Servicers shall not have any liability to the
Depositor, the Trustee, the Paying Agent, the Special Servicers, any
Certificateholder, any Certificate Owner, any Primary Servicer, the Placement
Agent, any Underwriter, any Rating Agency or any other Person to whom it
delivers information pursuant to the provisions of this Agreement for federal,
state or other applicable securities law violations relating to the disclosure
of such information. In the event any Person brings any claims relating to or
arising from the foregoing against a Master Servicer (or any partners,
representatives, Affiliates, members, managers, directors, officers, employees,
agents thereof), the Trust (from amounts held in any account) shall hold
harmless and indemnify such Master Servicer from any loss or expense (including
attorney fees) relating to or arising from such claims.
Section 8.26 1934 Act Reporting
(a) The Master Servicers, the Special Servicers, the Paying Agent
and the Trustee shall reasonably cooperate with the Depositor in connection with
the Trust's satisfaction of its reporting requirements under the 1934 Act.
Within 15 days after each Distribution Date, the Paying Agent shall prepare,
execute (on behalf of the Depositor) and file on behalf of the Trust any Forms
8-K customary for similar securities as required by the 1934 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 Paying Agent shall file each Form 8-K with a copy of the related Monthly
Certificateholders Report attached thereto. The Paying Agent shall not file any
other attachments with any Form 8-K without the prior consent of the Depositor.
If the Depositor directs that any other attachments are to be filed with any
Form 8-K, such attachments shall be delivered to the Paying Agent in
XXXXX-compatible form or as otherwise agreed upon by the Paying Agent and the
Depositor, at the Depositor's expense, and any necessary conversion to
XXXXX-compatible format will be at the Depositor's expense. Prior to March 30th
of each year (or such earlier date as may be required by the 1934 Act and the
rules and regulations of the Commission), the Paying Agent shall prepare and
file a Form 10-K (which shall be executed by the Depositor), in substance as
required by applicable law or applicable interpretations thereof of the staff of
the Commission. Such Form 10-K shall include as exhibits each annual statement
of compliance described under Sections 8.12 and 9.18 and each accountant's
report described under Sections 8.13 and 9.19, in each case to the extent they
have been timely delivered to the Paying Agent. If they are not so timely
delivered, the Paying Agent shall file an amended Form 10-K including such
documents as exhibits reasonably promptly after they are delivered to the Paying
Agent. Each Form 10-K shall also include any Xxxxxxxx-Xxxxx Certification
required to be included therewith, as described in paragraph (b) of this Section
8.26. The Paying Agent shall not file any other attachments with any Form 10-K
without the prior consent of the Depositor. The Paying Agent shall have no
liability with respect to any failure to properly prepare or file such periodic
reports resulting from the Paying Agent's inability or failure to obtain any
information not resulting from its own negligence, bad faith or willful
misconduct. Upon any filing with the Securities and Exchange Commission, the
Paying Agent shall promptly deliver to the Depositor a copy of any such executed
report, statement or information. Prior to January 30th of the first year in
which the Paying Agent is able to do so under applicable law, the Paying Agent
shall file a Form 15 relating to the automatic suspension of reporting in
respect of the Trust under the 0000 Xxx.
(b) The Form 10-K shall include any certification (the
"Xxxxxxxx-Xxxxx Certification") required to be included therewith pursuant to
the Xxxxxxxx-Xxxxx Act of 2002, and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission's staff) and a copy of such Xxxxxxxx-Xxxxx Certification shall be
provided to the Rating Agencies. An officer of the Depositor shall sign the
Xxxxxxxx-Xxxxx Certification. On or before March 20th of each year with respect
to which a Form 10-K is filed by the Paying Agent, as set forth above, the
Master Servicers, the Special Servicers, each Primary Servicer and the Paying
Agent (each, a "Performing Party") shall provide (and, in the case of each
Primary Servicer, the applicable Master Servicer shall cause each related
Primary Servicing Agreement to require the Primary Servicer to so provide) to
the Person who signs the Xxxxxxxx-Xxxxx Certification (the "Certifying Person")
a certification (each, a "Performance Certification"), in the form set forth on
Exhibit AA hereto or in the form set forth on Exhibit A to Exhibit AA hereto, as
applicable, on which the Certifying Person, the Depositor (if the Certifying
Person is an individual), and the Depositor's partner, representative,
Affiliate, member, manager, director, officer, employee or agent (collectively
with the Certifying Person, "Certification Parties") can rely. 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 and in accordance with such
Performing Party's responsibilities hereunder or under any other applicable
servicing agreement or (iii) with respect to completeness of information and
reports, 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 directed by
the Depositor, such Performing Party shall provide an identical certification to
Depositor's certified public accountants that such Performing Party provided to
its own certified public accountants to the extent such certification relates to
the performance of such Performing Party's duties pursuant to this Agreement or
a modified certificate limiting the certification therein to the performance of
such Performing Party's d